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Canadian Film or Video Production Tax Credit and Canadian Immigration (Part 1)

film-tax-credit

The intersections between entertainment law and immigration law has traditionally been a front-end discussion. Which type of entertainers can come in without a work permit? Which will require one? Are there any LMIA-exemptions?

Very little attention has been paid to the back-end, long-term benefit of having a Canadian permanent resident or Citizen involved in the production of a film. There is a benefit. That benefit is a refundable 25% tax credit for utilizing Canadians.

I will try to do this topic justice here in a series of posts.

  • Part 1 will provide an overview of the CPTC tax credit, review the general eligiblity guidelines relating to immigration, and highlight the “Canadian” Requirements for both Film Production and Distribution companies as well as Producer-Related Personnel.
  • Part 2 will look specifically at Creative Key Personnel, and why you may see so many films filmed in Canada with Canadian actors and directors. It will also look at some the key exceptions.
  • Part 3 will look at Joint Productions and how some of Canada’s Telefilm Co-Production Agreements can be implemented in an immigration savy way. I will also wrap up on some potential Canadian Immigration related strategies.

What is the CPTC?

The Canadian Film or Video Production Tax Credit (CPTC) is fully refundable tax credit, available at a rate of 25 percent of the qualified labour expenditure of an eligible production. The CPTC is jointly administered by the Canadian Audio-Visual Certification Office (CAVCO) and the Canada Revenue Agency. (see: http://www.pch.gc.ca/eng/1268752355851)

General Guidelines

In the CPTC Guidelines (the “Guidelines”) there is a list of 11 requirements in order to meet the program eligibility. Several of these criteria touch upon the importance of ensuring certain key individuals and entities are Canadian. I will address only the ones relevant to immigration. The Guidelines state (emphasis added):

  • All producer-related personnel (other than those receiving exemptions permitted in limited circumstances) must be Canadian. For productions involving non-Canadian development, financing or distribution, the producer should read s. 4.09 and s. 4.10 thoroughly before entering into any agreements with non-Canadians.

  • Not less than 75% of the total of all costs for services provided toward producing the production (other than excluded costs) must be payable for services provided to or by individuals who are Canadians, and not less than 75% of the total of all costs incurred for the post-production must be incurred for services provided in Canada. (s. 5.06)*

I will analyze s.4.09 and s.4.10 in Part 2 of my series on this topic.

“Canadian” production company and distribution company requirements

The guide goes on to discuss the requirement for the CPTC applicant production company and the Canadian distribution company to be Canadian (emphasis added):

To qualify for the CPTC, the applicant production company, and if applicable, the Canadian distribution company through which it will distribute the production in Canada, must be owned and controlled, either directly or indirectly, by Canadian citizens or permanent residents in accordance with definitions found in a combination of the Citizenship Act, the Immigration and Refugee Protection Act (which replaces the Immigration Act) and the Investment Canada Act (ICA).  This requirement is set out in subsection 1106(1) of the Regulations of the Income Tax Act.

By virtue of s. 1106 of the Income Tax Regulations, CAVCO must determine, among other things, whether a corporation’s shareholders are “Canadian” within the meaning of s. 3 of the ICA. According to the ICA, Canadian means (emphasis added in original and in analysis):

  1. A Canadian citizen;

  2. A permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, who has been ordinarily resident in Canada for not more than one year after the time at which he or she first became eligible to apply for Canadian citizenship;

  3. A Canadian government, whether federal, provincial or local, or an agency thereof; or

  4. An entity that is Canadian-controlled, as determined under subsection 26(1) or (2) and for which there has been no determination made under subsection 26(2.1) or (2.11) or declaration made under subsection 26 (2.2).

For greater clarity, an individual is “Canadian” for the purpose of determining Canadian control of a corporation if it can be established that he or she is:

  1. A Canadian citizen; or
  2. A permanent resident, within the meaning of subsection 2(1) the Immigration and Refugee Protection Act, who i) is ordinarily resident* in Canada and ii) is not eligible to apply for Canadian citizenship or has not been eligible to apply for Canadian citizenship for more than one year.

*To be considered “ordinarily resident” in Canada, an individual must demonstrate that he or she has taken residence in Canada in his or her usual day-to-day routine.

As you can see, the CAVCO/ICA definition of Canadian in respect of permanent residents is stricter than the definition provided in IRPA. The individual not only must be a permanent resident but also one who is ordinarily resident (by definition essentially lives in Canada) and as well cannot have been eligible for Citizenship for more than one year at which time they have did not applied to obtain Citizenship status.

“Canadian” Production-Personnel Requirements

To further complicate things, a different definition of Canadian from the Investment Canada Act is applied when determining whether the producer-related personnel is Canadian.

It is written (emphasis added):

Production Personnel

4.01 Proof of Canadian Citizenship or Permanent Residency

4.01.1 Requirements

Other than where a production is a treaty co-production, a production company must provide proof that individuals for whom key creative points are being requested, as well as individuals occupying producer-related positions, are Canadian. With respect to producer-related or key creative personnel for a production, the term “Canadian” is defined as a person who is, at all relevant times, a Canadian citizen as defined in the Citizenship Act, or a permanent resident as defined in the Immigration and Refugee Protection Act. The person must be Canadian during the entire time he or she performs any duties in relation to the production.

The CPTC Guidelines do not specify or clarify what “during the entire time he or she performs any duties in relation to the production.” However, the Canada Radio-Television and Telecommunications Commission in their guide (see: http://www.crtc.gc.ca/canrec/eng/guide2.htm) to their own “Canadian content” certification and application process provides guidance that is likely cross-applicable. The CRTC guide states (emphasis added):

Canadian at all relevant times means that an individual must be Canadian at the time he or she begins his or her duties in relation to the production and during the entire course of the filming or taping and post-production. An individual cannot acquire permanent resident status in order to qualify as Canadian at any point during a production; such status must be confirmed before the individual begins engaging in any activity related to the production. An individual acquiring permanent resident status after he or she begins engaging in any activity related to the production will be considered a non-Canadian for the entire production. Likewise a corporation must be a Canadian-controlled corporation during the same time period.

Therefore it is important that applicants confirm the status of each person who will occupy a key creative position before the person begins engaging in any activity related to the production.

This issue is one that I will believe will be at the crux of where an immigration lawyer can add value. “Activity related to the production” seems very broad reaching, particularly where in the entertainment field there is a lot of cross-collaboration and sharing between film projects and also a very short transition (one day) between temporary residence and permanent residence.

Reading the above, it appears that it will be very important for Production Companies to keep a very good record of each production personnel’s start dates, along with their immigration status throughout the film production process. This along with important dates such as permanent residency card expiry dates, as expired PR cards will trigger the need to reapply to CAVCO to obtain a new personnel number (more on this in my next post!).

In part two, I will get to the fun stuff. A film (live production and animated) has several key creative personnel – directors, lead actors – what are the rules for them? How many need to be “Canadian” to qualify for the CPTC tax credit? STAY TUNED!!

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Interview with Paul Sohn: Reflections from a Successful Korean-Canadian/American Immigrant

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Earlier this year, I had the distinct privilege of interviewing my former undergraduate colleague and friend Paul Sohn.

Paul (http://paulsohn.org/) is an award-winning author, mentor, leadership expert, and devout Christian among many other titles. He comes from very hardworking and successful roots, one that began when he came to Canada from Korea, by himself, as a 14-year old student.

He has since left Canada to pursue a successful career in the United States, which began at Boeing and has now landed him with GIANT Worldwide. He has some excellent and inspirational advice for those starting out in Canada, particularly from the Korean diaspora.

  1. What is your name, age, and nationality? Where do you currently live and work?

My name is Paul Sohn. I’m a 28 year old Korean. I currently work as a Consulting Associate at GIANT Worldwide and am pursuing a Masters in Organization Development at Pepperdine University.

  1. When did you first immigrate to Canada? Can you tell us why your family chose to immigrate to Vancouver from South Korea?

At the age of 14, I left everything I had in Korea – including my family and friends – to start a new life in Canada all by myself. Frankly speaking, I honestly didn’t see any future for in Korea. The societal and cultural pressures to conform to a certain lifestyle was overbearing. In many ways, I was deemed a “loser” and my prospects for a successful life eluded me. In an attempt re-design my life, I mustered the courage and decided to leave everything behind and start a new life.

  1. What do you remember about your early days in Vancouver?

The first several years was about the transition from a young boy to young adult. I experienced many new things in life. New homestay family. New school. New friends. New language. New culture and so on. Everything was about new beginnings and I was doing my best to acclimate to the new culture.

  1. What types of things did you do to help integrate yourself into this city when you arrived?

I had the privilege of living with a Canadian homestay family during high school. They treated me as if I was their real child. They poured out their love. They invested in my growth. They cared about my future. I remember spending countless hours talking about all kinds of topics. Our relationship has continued to flourish since then. Now, I call them “mom” and “dad” and the homestay children as my “brothers” and “sisters.” This support network enabled me to stay focused and adjust to the new environment.

  1. Did you feel any challenges being a new immigrant and a Korean in Vancouver? Did that change over time?

As a Korean, the temptation to surround myself with same Koreans both at school and social life was real. After all, people find it a lot more comfortable being around with people who speaks the same language and understands your culture. However, I felt a strong need to go outside of my comfort zone and to stretch myself and challenge the status quo. Without focus and intentionality, it’s so easy to choose the easy road. Instead, I chose the narrow path. The journey wasn’t easy. I had to face my fears and overcome my weaknesses to become part of the mainstream.

  1. Why did you choose to leave Vancouver?

After graduating from high school and university, I moved to Portland, OR in the United States for my first and new full-time job. Not only was it difficult to find a career that aligned my vocational interests, my parents moved from Korea to the States a few years prior to my graduation. Thankfully, I was able to obtain a green card allowing me to work in the States which offered greater career mobility.

  1. Do you hope to return to live here permanently in the future?

I don’t have any immediate plans to return back to Canada at this point. At point, however, I’d like to come back and live for at least several years.

  1. What would you recommend to new immigrants who may be unable to secure employment or develop networks in Canada?

First and foremost, learn the language. Without being proficient in English, your choices for secure employment becomes virtually impossible. I also think connections and building relationships with various people will help you to find career opportunities in Canada. Studies show that most people get a job through personal networks instead of submitting your application online.

  1. What culturally specific challenges do you think exist for new immigrants from Korea to Vancouver?

Like I said earlier, there is a tendency for Koreans to limit their network with just Koreans. It’s vital to expand your network and build a culturally diverse portfolio of connections.

  1. What do you see for the potential of Korean business in North America, and specifically Vancouver?

I have seen a growing number of bright Koreans moving to North America. As they engage with culture and immerse themselves as part of the mainstream, I believe this will generate more opportunities for growth. In addition, the rise of Hallyu (Korean Wave) worldwide will create greater interest for Koreans to create a blue ocean market.

  1. As someone of the Korean Diaspora community who uses faith as a major motivation factor how do you believe faith can be a useful tool for new Korean immigrants to Canada? What local Vancouver faith-based organizations would you recommend?

Faith is a powerful source of hope for immigrants to Canada. In particular, Koreans are known for their religious fervor and belief in God. Many immigrants find churches to find a community where they can find “home.” Many rely on this religious community as a way to find new vocational opportunities as well. The practical benefits of joining a church cannot be ignored. 

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Opinion: Truth and Reconciliation Commission Has it Right on Canadian Citizenship

On June 2, 2015, the Truth and Reconciliation Commission released 94 recommendations after years of hearings and testimony from thousands of residential school survivors and several other key stakeholders.

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Among those recommendations are a set related to citizenship and immigration (emphasis added):

Newcomers to Canada

93. We call upon the federal government, in collaboration with the national Aboriginal organizations, to revise the information kit for newcomers to Canada and its citizenship test to reflect a more inclusive history of the diverse Aboriginal peoples of Canada, including information about the Treaties and history of residential schools.

94. We call upon the Government of Canada to replace the Oath of Citizenship with the following:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples, and fulfill my duties as a Canadian citizen.

These changes, to me, are important beyond just a symbolic gesture of apology for past wrongdoing. From the Canadian history textbooks I grew up reading to today’s oath and exam materials, none has truthfully and honestly reflected the complex, diverse, rich, important, and at times very tragic history of our Aboriginal peoples.

For myself personally, I could not care less if a new citizen does not know the full name of our Prime Minister. Prime Ministers come and go. However, for a new citizen not to know of the events surrounding Residential Schools or know of at least the names of two Aboriginal bands in Canada, is inexcusable. Its a critical omission that will affect their future human interactions with Aboriginal peoples and thus our own Canadian identity.

As we welcome in new Canadians, it only seems right we reflect on and pay homage to the first Canadians. Our Aboriginal Peoples. Our brothers and sisters. Our forefathers.

I hope Minister Alexander or whoever becomes Minister of Citizenship and Immigration post-election, makes implementing this uncontroversial change, an early priority.

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Sponsoring My Foreign Love – Preliminary Considerations (Part 1)

Recently, likely due to the summer wedding season being in full effect, I have been approached by several individuals considering the spousal sponsorship process.

immigrant-wedding

The increased interest in sponsoring a spouse may also be tied to the increasing difficulty of obtaining permanent residence through other economic streams. Particularly for young international couples  whose study permits, post graduate permits, and International Experience Class work permits are running out, the need to tie the knot in order to stay together becomes a date-ruining dinner time conversation.

As part one of a multi-part series, I will try and cover some of the challenges associated with spousal sponsorship applications.

So what are some considerations to consider prior to embarking on an application to sponsor?

1. Where are the potential Applicant and Sponsor currently residing and what is their legal status there? What is the Applicant’s immigration status in Canada?

This question is important for several reasons. To file an Inside Canada spousal sponsorship application, there is a requirement for the Applicant to actually be in Canada.

For Outside Canada spousal sponsorships, there is also the potential option of selecting the Visa Office that processes the second part of your Application. You can apply to a Visa Office that is not your country of citizenship if you currently hold legal status in that country and have done so for more than one consecutive year. This may be particularly useful for applicants who are citizens in a country such as Pakistan (currently 40 month processing time) but have legal status by virtue of study or work in London, England (currently 28 month processing time).

It is also important to consider their status (if they are in Canada). Do they have temporary resident status in Canada now? When does that status expire?  Are they out of status?

These questions will affect what procedure you ultimately choose in sponsoring.

2. What is the status of your relationship? 

Closely related to the above question of immigration status is the question of relationship status. Under Canadian Immigration Law you can sponsor a spouse or common law partner if:

(1) they are your legal spouse (i.e. you married);

(2) they are your common-law partner (at least 1 year of cohabitation and currently cohabiting in conjugal relationship);

(3) they have been in a conjugal relationship with you for one year (unable to cohabit due to persecution or penal control);

In addition to determining whether you have met the above categories, it is also important to ask yourself whether you have the evidence to show that you have met the above categories. For example for you and your common-law partner: Do you have proof that you have co-rented or co-leased a place to live for over a year? Do you have a joint bank account showing a conjugal (not just roommate) relationship?

These are all very relevant questions in determining common-law status as well as relationship genuineness at a later stage.

3. What are current application processing times?

Currently for Inside Canada spousal sponsorship applications the processing time is 26 months. This time is encapsulated in 17 months to obtain a first-stage approval that the relationship is bona-fide. In an Inside Canada sponsorship all of the processing takes place in Canada at Case Processing Centre Mississauga (CPC-M). Interviews, if necessary, are generally arranged at the local CIC office in the city which you reside and will require attendance by both Applicant and Sponsor.

Currently for an Outside Canada spousal sponsorship application, the processing time varies from 5 to 40 months depending on Visa Office. Note that this in addition to the assessment of the sponsor which currently takes 55 days. In an Outside Canada process, the sponsor assessment occurs at CPC-M before the application is sent to a visa post abroad for assessment of the bona fides. Interviews, if necessary, are arranged outside Canada and will require attendance by both Applicant and Sponsor.

Why is it important whether you have an immigration officer in Pakistan or London assesses your application? Asides from the level of scrutiny that may possibly differ (statistics don’t show too much of a correlation between visa posts), it will definitely affect the time it takes to make a decision.

Here are the processing times accessed from CIC as of 02/06/2015.

Processing times for sponsorship of spouses, common-law or conjugal partners and dependent children applications

The tables below indicate application processing times at Canadian visa offices once Step 1 has been completed. The times are based on how long it took to process 80 percent of all cases between April 1, 2014 to March 31, 2015. Processing times are subject to change.

Last quarterly update: May 20, 2015

Africa and Middle East
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Abu Dhabi – United Arab Emirates 13
Accra – Ghana 16
Amman – Jordan 24
Ankara – Turkey 11
Beirut – Lebanon 16
Cairo – Egypt 18
Dakar – Senegal 21
Nairobi – Kenya 22
Pretoria – South Africa 15
Rabat – Morocco 8
Tel Aviv – Israel 9
Asia and Pacific
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Beijing – China 10
Colombo – Sri Lanka 10
Hong Kong – China 10
Islamabad – Pakistan 40
Manila – Philippines 17
New Delhi – India 16
Singapore – Singapore 28
Sydney – Australia 11
Europe
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Bucharest – Romania 17
Kyiv – Ukraine 12
London – United Kingdom 28
Moscow – Russia 24
Paris – France 8
Rome – Italy 12
Vienna – Austria 16
Warsaw – Poland 12
Americas
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Bogota – Colombia 12
Buenos Aires – Argentina 14
Guatemala City – Guatemala –
Havana – Cuba 10
Kingston – Jamaica 23
Lima – Peru 10
Los Angeles – United States 29
Mexico City – Mexico 17
New York – United States 35
Ottawa (Case Processing Centre) – Canada 16
Port-au-Prince – Haiti 23
Port of Spain – Trinidad and Tobago 17
Santiago – Chile 22
Santo Domingo – Dominican Republic 14
Sao Paulo – Brazil 5

Notes

  • You can view your application status online.
  • If it has been longer than the time shown above since you applied and your visa office has not contacted you, you may wish to contact the visa office that is processing your application. The Call Centre does not have information about applications processed outside Canada.
  • (–) indicates that not enough data are available. Processing times are shown only where an office has finalized 10 or more cases in the past 12 months.

SOURCE: http://www.cic.gc.ca/english/information/times/perm/fc-spouses.asp

Returning to our Pakistan and London example, the same application processed in Pakistan will take a calendar year longer.  You can readily see the huge discrepancies between visa posts,

4. Should I choose the Inside Canada or Outside Canada process?

As alluded to earlier, Applicants currently residing in Canada have a choice of applying for an Inside Canada spousal sponsorship (http://www.cic.gc.ca/english/information/applications/spouse.asp)  or, if they have temporary resident status and reside in Canada, an Outside Canada spousal sponsorship (http://www.cic.gc.ca/english/information/applications/fc.asp). Applicants applying from outside Canada can only utilize the Outside of Canada process.

Note with an Outside Canada application you will also need to show that there will be an effort to bring the spouse to Canada to reside permanently upon being granted permanent resident status.

An Inside Canada spousal sponsorship application certainly has its advantages, among which include:

  1. If the Applicant has valid temporary resident status after 4 month processing, there is currently a pilot project for a spousal open work permit which will allow the Applicant to work in Canada for any employer in Canada;
  2. The Applicant can still have their application processed without holding temporary resident status and has the benefit of an administrative deferral of 60 days in most circumstances (in which time the application will be processed) if removal proceedings are issued against the Applicant;
  3. For those who currently have temporary status and apply to extend their temporary status in Canada along with their in-Canada spousal permanent residence application, they can have implied status for the duration of the processing or until they leave Canada;
  4. The entire process occurs in Canada, there is no need to travel abroad for an interview at a foreign visa post;

However, there are also several disadvantages:

  1. The spouse/common-law partner needs to reside and live together in Canada for the duration of processing. Any separation (particularly outside of Canada travel by one party) may effect severance of the common-law relationship;
  2. Any denial of re-entry for the Applicant to return into Canada will lead to refusal of the in-Canada application and will trigger the requirement to reapply (likely using the Outside Canada process);
  3. You have no rights to appeal to the Immigration Appeal Division in the case of your application being refused. Your only recourse is the Federal Court where the visa officer’s decision is reviewed on the difficult to challenge standards of reasonableness and correctness;
  4. There is currently a 26 month processing time for these applications in which time the Applicant will not be a permanent resident of Canada; and
  5. The open spousal work permit is a pilot project and subject to change. Previous to the new pilot program, spousal work permits were only issued after 17 months of processing, meaning many couples had to rely solely on the Sponsor’s income for 17 months;

An Outside Canada spousal sponsorship application also has its advantages:

  1. The Applicant and Sponsor do not need to reside together in Canada and can pursue options either abroad or in Canada;
  2. There is a general right to the Immigration Appeal Division in the event your Spousal Sponsorship application is refused (except in serious criminality, misrepresentation, terrorism,  etc.). At the IAD you will have a second chance in a de novo (new) hearing to prove the genuineness and purpose of your marriage (should that be the ground for refusal).

However, there are also several disadvantages:

  1. There is no right to an open spousal work permit and you will likely have to obtain the ability to work in Canada through under means;
  2. Couples may have some challenges spending immediate time together in Canada where the Applicant is from […]
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Questions from a Pre-Law Student (Part 1)

A week and a half ago I was approached by a Pre-Law Student with some questions about whether to go to law school or grad school and related issues.

I thought I’d post my answers that I gave her.

  1. Why did you pursue law school?

I wanted to pursue law school since I was a kid, but I was probably jaded by the “arguments” and “big bucks” as per my grade 7 yearbook.

Truthfully, it was during undergraduate when I started volunteering with Access Justice (now Access Pro Bono), and realized how much the law impacted individuals day-to-day lives. I also started getting heavily involved in community advocacy efforts in my history and international relation studies. I realized that one of my major challenges was that it was difficult to speak up as just an “undergraduate student.”

I guess I wanted people to take me a little more seriously.

 

  1. Should I work for a few years before pursuing law school or go straight into it?

It depends. Do you have something specific you want to go into? I think if you have a legitimate position that you can go into (either a high-level government job/internship or one with a great company) you should jump in. You could possibly make some money and help pay for law school. You may also put yourself in a good position to come out of law school and combine your experience. For you in particular, if you found a very good gig in marketing and became a marketing professional for a couple years, arguably you could go to law school and be very good at areas around legal marketing. I’ve seen a few people very successful at this particular in the entertainment industry where they became entertainment lawyers.

  1. Should I take an LSAT prep course or self study?

It depends on how fast you are getting it. I would start by getting some books or materials off a colleague and reading them. If you feel like its intuitive you can start doing practice exams on your own.

I took two courses, both very expensive, and only the second one was very helpful. For me, the battle was more mental and the second course (and the instructor) was really helpful. He doesn’t teach anymore. Needless to say I didn’t do so well on the LSAT, writing three times (cancelling twice) and only obtaining 66th percentile.

  1. What do you think about an international law degree obtained abroad?

I would obtain one in Canada if you foresee your future here (that is unless you go to a top Ivey league U.S. J.D program). I think that due to the lack of legal jobs in Canada, more pressure is being placed on the system to provide less opportunity to foreign-trained lawyers and more to domestic students. However, if you foresee yourself living and working in another city abroad, go do law school there (near there) for sure.

Finally, I think all law schools in Canada are good. Don’t feel pressured to think only the top schools are the best. Also, for someone more holistic and well-rounded like yourself you may do better at a school that focuses more on well-rounded areas and recruits those type of students.

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Judicial Review and Immigration Appeals: Why I Love This Area of the Law

As Canadian Immigration laws in Canada get tighter and tighter, it appears that judicial review (JRs) and immigration appeals work gets more and more important in the overall process of assisting an individual is coming to or staying in Canada.

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I’d like to provide my own quick summary of the processes and my own experiences in this piece. I will not delve very deep into the legal or procedural requirements in this post, it is more to summarize the process and highlight aspects I find interesting. As always, none of the below should be construed as legal advice.  

Who can do JRs and Immigration Appeals?

Right off the bat, there are a few things you should know about Judicial Review. Aside from the individual themselves, only a lawyer called to a provincial bar in Canada can represent an applicant in this process.

Immigration Appeals  can be done by both lawyers and consultants.

What are JRs and Immigration Appeals?

Judicial Review

Judicial Review is an administrative law process where Applicants can ask the Federal Court of Canada (and in some jurisdictions  other Courts) to review the decision of a tribunal or government-authorized decision maker’s decision (i.e visa officer, minster’s delegate, etc) on the grounds that it was either (1) unreasonable or (2) was incorrect and breached the Applicant’s procedural fairness.

Where reasonableness is the standard of review, the Federal Court is expected to show deference to the Administrative Tribunal or decision-maker. Where correctness is the standard of review, there is no deference and Federal Court can replace the decision of the Administrative Tribunal or decision-maker.

The process of filing a JR is key. I will differ to the Federal Court of Canada to explain this process step-by-step (including important statutory timeline issues): http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/ApplicationIMM 

From my experience a lot of practitioners who aren’t as successful at obtaining leave for judicial review fail to put in the early effort into putting together a strong Applicant’s Record, including effective affidavits laying out the facts and a detailed memorandum of argument laying out the standard of review and legal arguments for why that the decision failed to meet that standard (be it reasonableness or correctness). One of the common flaws, as a Federal Court judge once expressed in a speech she gave, is a lack of facts to establish the factual basis and too much irrelevant case law to try and argue a point. When you start throwing in a dozen cases (without citing specific factual differences), you have a bunch of authority with no factual or casual link to your own case at bar.

Judicial review is not, and I repeat is NOT, an opportunity to argue that the decision maker’s decision was wrong and that the decision maker should have done X or Y instead. As long the decisionmaker’s decision was within the ‘range of possible outcomes’ the Federal Court will not interfere with the decisionmaker’s decision. Even insufficient reasons in a decision is no longer automatic grounds for a decision to be unreasonable.

Also remember that affidavits that are filed cannot include information that was not before the tribunal or panel making the decision, subject to some carved out exceptions. For a good case on exceptions check out:  Association of Universities and Colleges of Canada and the University of Manitoba and the Canadian Copyright Licensing Agency 2012 FCA 22 at para 20  (http://canlii.ca/t/fpszj)

After filing your Applicant’s Record containing your affidavits and memorandums, Minister’s Counsel (represented by the Department of Justice) will assign a counsel to your case. Minister’s Counsel can do one of three things after receiving instructions from their client : (1)They may choose to consent if the decision is prima facie in error or procedurally unfair; (2)They may also choose to file a memorandum in response opposing your application for leave and stating that there is no arguable case at leave; or (3) they make take no position.

Taking no position does not necessarily mean you have won the case. It can be a positive thing – meaning they think you have an arguable case, but it is just as likely that they may wish to respond further after leave or that they require memorandums or further client instructions in order to adequately respond. Ps. I am purposely not going into the Stay process (a blog post in itself)

If Minister’s counsel does respond, you will likely need to make a further reply, in which you clarify your grounds and emphasize why you still have an arguable case at leave.

The decision then goes to a Federal Court judge who decides whether or not to grant leave. Even though the threshold is quite low, Leave is granted in only approximately 30%-38% of all cases by latest estimate.

If leave is granted, there is another round of affidavits and memorandums, with the Applicant being asked to file first. There is no final reply if Minister’s Counsel does file a Final Memorandum as at the oral hearing (statutorily scheduled no later than 90 days after the Minister’s) you will both have the opportunity to respond.

The Oral Hearing involves Counsel for the Applicant presenting their case first, discussing the unreasonable and procedurally unfair elements of a decision. Minister’s Counsel then makes submissions, followed by a brief opportunity for Applicant’s counsel to reply. In the case of a Federal Court Judge who is more passive, this may all go very much according to script. However, I’ve seen other Federal Court judges who very much want to engage on the issues and ask both Counsel questions to challenge their respective positions.

Most decisions, that are not among the rare decided by oral order from the bench, are released by the Federal Court judge. This process can take several weeks to months.

Immigration Appeals Division

Usually, Applicants hear about their right to appeal in the refusal letter triggering the 30-day appeal window. Once an appeal is applied for a hearing date is usually set.  One of the ongoing challenges right now is that it takes quite a bit of time to schedule a hearing, a problem that appears particularly bad in Toronto.

For a client this delay may not be so bad. More time, in the case of a residency appeal, criminality, and even spousals is more time arguably to show that requirements are now being met and conduct has now improved.

The most important part of an Immigration Appeals Division (“IAD”) case is that it is a hearing de novo. The member or panel that decides your case can take into account new evidence. However, there is a caveat in that this new evidence still has to go to the reasonableness of the correctness of the decisionmaker’s decision at the time it was made.  From what I have seen, recent circumstances and improvements in situation DO play a big factor into decisions, often times in the equitable jurisdiction (Humanitarian and Compassionate Grounds) that the Member can consider.

During the Immigration Appeals process, there are several opportunities for the Appellant (Applicant or Sponsor, in spousal appeals) to make disclosure to Minister’s counsel (and vice vers). These disclosures can contain letters of support, photographs, and other evidence that supports the case.  I have also seen counsel use the opportunity to provide written submissions as to the merits of the case.

Rule 20 of the IAD Rules also provides for the potential of seeking Alternative Dispute Resolution. The IAD may seek ADR in specific cases, while in other cases it may be negotiated with CBSA during the period leading up to the appeal. At an ADR, a Hearings Officer may question the Appellant and may offer to consent to the appeal. If consent is not reached, a full hearing will follow.

Immigration Appeals involve the direct examination and cross examination of key witnesses to the situation being challenged on appeal, followed by legal submissions (if necessary). The opposing counsel will likely be a Hearings Officer representing either CIC or the Minister of Public Safety and Emergency Preparedness. Hearings Officers vary from the very understanding to the very critical, and the position they take (and possible willingness to consent) is very crucial to the final outcome of the case.

If Judicial Reviews are all about Standard of Review, Immigration Appeals are all about the facts. Counsel will need to work with Applicants to ensure all the relevant facts are brought to the table, particularly those that contradict what the decisionmaker found. It is also key that all witnesses are credible and on the same page factually. Assessing an individual’s credibility is ultimately a guessing game, but many of the factual inconsistencies that go to a negative credibility finding are more readily apparent. Needless to say Immigration Appeals take a lot of preparation and require a good, honest client-counsel rapport.

Distinction between JR and Immigration Appeals

There is a distinction between Judicial Review and Immigration Appeals. There are cases where you have the right to appeal to the Immigration Appeals Division (where in almost all circumstances you must exhaust the appeal before exercising your right to judicial review), cases where you do not have the right to appeal to the Immigration Appeals Division and therefore can only try to judicial review the decision.

5.2. Distinction between an appeal and judicial review

The IRPA [Immigration and Refugee Protection Act] provides two levels of review of decisions made under the Act: review by way of statutory appeal to the IAD and review by the Federal Court.

Pursuant to section A63 (as limited by section A64) sponsors, visa holders, permanent residents and protected persons have a right to appeal adverse decisions to the IAD.

……

In all other cases, where no statutory right of appeal exists or those rights have been exhausted, there is a right to seek judicial review of any decision made pursuant to the IRPA by filing an application for leave and judicial review to the Federal Court pursuant to A72(1).

Section 64 of IRPA sets out there is no appeal for inadmissibility in security, serious criminality (more than 6 months imprisonment), and misrepresentation cases.

What happens if you win?

There is also a difference in both forums if you win. Generally speaking, when you win at the Immigration Appeal Division the Member will make some sort of order: “the Applicant has not lost their permanent resident status” or […]

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Medical Inadmissibility Appeals and the Application of De Novo Evidence 

26-05-2015 medical_coverage

I am working on an Immigration Appeal Division (“IAD”) case involving the sponsorship of a family member who was found medically inadmissible. An interesting legal issue came up, which I found has not been widely discussed in immigration law texts, but may be very useful for practitioners and applicants alike: what happens if the Applicant’s condition or drug prices have changed since the initial negative decision and you are now at the IAD?

Facts

The loose factual situation is that since the negative medical inadmissibility report was issued several years ago, there have been several developments which (arguably) may not leave the individual medically inadmissible today. For example, as of June 2014, the minimum cost threshold (beyond which medical inadmissibility for excessive demand on health and social services would kick in) increased from $4,057 to $6,387 per month. This is a very substantial amount.

In our situation and in my estimate, the Applicant, according to today’s figures and our estimates of today’s prescription drug prices, may indeed fit under the new threshold and possibly the threshold from two years ago too.

Issue

Asides from the issue of challenging the reasonableness or correctness of the Visa Officer’s decision, can we introduce this new De Novo evidence as evidence of non-inadmissibility? In other words, can the IAD consider this evidence as a legal argument that the Applicant is no longer medically inadmissible?

Analysis provided by Vazirizadeh

The short answer appears to be no. The relevant case law authority for this is Vazirizadeh v. Canada (Minister of Citizenship and Immigration) 2009 FC 807. In Varzirizadeh, the Applicant had knee surgery following a medical inadmissibility finding based on osteoperosis. It was determined following the inadmissibility finding that one of her knees no longer required surgery. The IAD refused the Applicant’s appeal based on humanitarian and compassionate considerations, and the Applicant brought an Application for Leave and Judicial Review to the Federal Court now also challenging the legal validity of the decision.

The Applicant argued that as the IAD hearing was de novo, it should have considered the appellant’s changed medical status, whereas the Respondent Minister argued that the IAD considered both pre-surgery and post-surgery circumstances, and determined the medical inadmissibility had not changed (para 18). The Respondent also argued that de novo evidence could only reverse a medical inadmissibility finding if the evidence demonstrated that either the visa officer’s decision was incorrect at the time or breached the Applicant’s procedural fairness (at para 19).

Justice Frenette, citing the still oft-cited decision of the Federal Court of Appeal in Mohamed v. Canada (Minister of Employment and Immigration),  68 N.R. [1986] 3 FC 90, adopted the Respondent’s position concluding that “subsequent improvement in the medical condition was only relevant to whether special relief should be granted on appeal” (at para 20).

Therefore, it appears that arguments relating to change in medical condition or drug costs will not assist in challenging the legal validity of the Officer’s decision.

But, it is still useful in an appeal?

Application in a Recent IAD Case based on Special Relief – Boukrab

Boukrab v. Canada (Minister of Citizenship and Immigration) [2015] IADD No. 25 is an interesting case of a self-represented litigant who was found medically inadmissible by a visa officer as a result of rheumatoid polyarthritis (para 4).

The visa officer’s medical report itself [it was in French, so pardon my limited French translational abilities] found that the Applicant’s condition would likely continue to deteriorate and listed several drugs that he would require under Ontario’s medical insurance program.

In an effort to likely bolster the medical report, the Minister’s Delegate in hearing disclosure provided a Globe and Mail article which showed that injections or infusions for treating the condition would cost upwards of $20,000.

The Applicant’s arguments regarding the ability to “pay for his mother’s drugs,” were not accepted by the IAD which argued that as the government was statutorily obligated to pay, any undertaking to the contrary by the Applicant would be irrelevant.

However, the Applicant won the appeal on the basis of an updated letter from a rheumatologist dated August 29, 2014 indicating the condition was now stable and that the over-the-counter medication she took cost only $47.25 a month, an amount well below the threshold.

The Member upheld the medical inadmissibility finding but granted special relief (Humanitarian and Compassionate considerations). The Member was similarly impressed by the family’s attention to detail in establishing housing and transfer payments that were to be made.

Practical Tip: Estimating Drug Costs

Drug costs and equivalent treatment can sometimes be difficult to establish, particularly when the Applicant is located overseas and being treated by an overseas doctor. Many medications cost different amounts in different jurisdictions, sold under different labels and may have generic equivalents.

A good tip for Applicants or Counsel is to contact local support/non-profit groups relating to the condition that renders the Applicant inadmissible. These organizations, particularly local chapters, may have updated reports and studies which provide more accurate estimates of medical and social service costs.

It is important to recognize, particularly for negative decisions rendered abroad at foreign visa offices by foreign doctors/officers, is that the cost estimates are often done abroad and based on reports and surveys which possibly are less reliable (and possibly less individualized, local) than the ones you may have at your fingertips.

I also have this handy tool, provided to me by the kind folks at one of the organizations mentioned above, which may assist you in assessing the pre-subsidy prescription medication costs.

As stated on the website by the Pacific Blue Cross: “The Pharmacy Compass is an online tool developed by Pacific Blue Cross that may help you save money by comparing the average price for prescription drugs at different pharmacy locations across British Columbia based on claims submitted to Pacific Blue Cross over the past three months.” http://www.pharmacycompass.ca/FAQ

Once you have a cost estimated for the medication, it will be useful to do two steps. First, compare this amount to the cost threshold. In an ideal world, the cost is under $6,387 a month you may be in good shape. If the amount is slightly over, it may be worth investigating into the province’s subsidy scheme and determining the percentage paid by the government annually (reimbursed to the beneficiary). Here, your individual who is wealthy, but can’t use that wealth to demonstrate that they can pay for the costs out of their own pocket may be able to demonstrate that it affects the subsidized amount. Again, this analysis will have to be done on a province-specific basis and may not ultimately yield positive results. However, as summarized very well by one of my favourite Canadian immigration lawyers, Mario D. Bellissimo in  Chapter 11 – page 31 of Canadian Citizenship and Immigration Inadmissibility Law (2014) “The end result: excessive demands in one province may not be excessive demands in another province.”

Conclusion

Medical inadmissibility is a fascinating area of immigration law, one that is constantly changing based on changes to our health system and our knowledge of scientific treatments.

From what I have seen of it so far, it is often one of the most controversial. Medical inadmissibility cases often make it to the front page of the media, for the devastating affect it has in separating families.

I think it is an area where more case law will emerge, as applicants and counsel are better prepared to challenge the legal validity and put forth strong humanitarian and compassionate grounds for how they are not excessive burdens on the Canadian health system.

Let’s see what happens. Excited to see what happens to our case!

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The Best Law Advice I Ever Received: YDYIDM

Today’s Canadian legal market for up and coming lawyers ain’t a pretty one. There’s no need to put blush or makeup on the situation. As much as getting into law school was a task, finding a paying Canadian articling position in a major Canadian city is difficult. Getting hired back is more difficult, and being able to make a name for yourself as a junior lawyer another beast in its own right.

Recently, I’ve seen a lot of articles written by well-intentioned young lawyers and students purportedly offering go provide roadmaps on how to attain those positions/navigate the ropes . In fact, I was one of those well-intentioned students back in the day that provided advice left, right, and centre to anybody who would listen.

It is only now that looking back on things, I really didn’t know what I was talking about. I still don’t and I should probably stop trying to influence others with too many advice blog posts. The fact is, the journey into law, through law, and for many, eventually out of law is a personalized one. Just like it is impossible to fit a square peg into a round hole, you cannot box all law students and law firms into one. We all come at law with a different angle, with different hopes and dreams, and we will all eventually define our success differently.

My own journey is one where I wrote in my grade 7 year book that I wanted to be a lawyer. I didn’t even know what a lawyer was, but just heard (likely from my parents) that it is was an honourable profession. In my undergraduate days, thanks to some pro bono experiences and heavy community engagement projects, I thought I was going to be a human rights lawyer or an international arbitrator. In law school, having been caught up in the typhoid fever of 2nd year and the sexification of law through Suits, I thought I wanted to be a corporate M&A guy working on Bay Street.

Today, I stand to you as a humbled Articling student in Canadian immigration law, a soon to be associate, who struggles with the law on a daily basis. I grew up knowing no lawyers, won no awards in law school, was an average student at best, and today can say no more than I give it my best effort to help my clients with hardwork and creativity. However, I will strive to know the law better and represent them competently with the highest degree of ethics and compassion.

Funny enough, for all the countless stressing I did in law school and during my various legal interships, today I can finally say that the law does not stress me out. I enjoy it. I enjoy when it defeats me because I know that the beating I took today will save someone from a beating tomorrow. I am happy because I work in an area of law where it is all about the clients I work and I become an integral part of their most important days and decisions that’ll affect the rest of their lives.

Furthermore, I can use the law as a stepping stone to engage with the community and educate others. Law should not be a language spoken by the few to the many but should be utilized by the many with the few (us lawyers) ensuring that justice and the rule of law are not abused by institutions, governments, and vexatious litigants.

So my one advice to young students these days is always the same. You Do You, I Do Me = pursue your passion and commitment to something greater than yourself. Listen to everybody who has advice for you, but follow only the advice in your heart.

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Why CIC’s Tougher “Requirements” Might Actually Result in More Officer Discretion

Introduction

From a logical perspective, the more requirements there are for something you wish to obtain, for example job requirements or minimum scholarship requirements, the less room there is for any discretion.

Using a Canadian immigration example, part of the reason Labour Market Impact Assessments (“LMIA”) Applications are able to facilitate employment when the Employer clearly has a Foreign National candidate in mind is due to Employer’s ability to set the requirements for the job to meet the Foreign National’s unique profile. This allows them to prove to Service Canada that the decision to hire was not discretionary and therefore that the genuine efforts were made to hire Canadians.

However, contrary to the examples above, I believe there is a growing trend that will see requirements being used as a way to create discretion and will affect the consistency of Officer decision-making.

How Discretion Might Work

With both the new Express Entry application process and the Government’s proposed SIN-sharing regulations on both Permanent Residents (http://gazette.gc.ca/rp-pr/p1/2015/2015-02-28/html/reg2-eng.php) and Citizens (http://gazette.gc.ca/rp-pr/p1/2015/2015-02-28/html/reg1-eng.php), information will be requested from applicants that will exist beyond available memory and likely, even, available records.

In order to submit an Electronic Application for Permanent Residence under Express Entry, applicants are asked to provide a reference letter for every employment they have ever held, setting out terms of employment (duration, wage, benefits, etc.). Under the proposed SIN/data sharing legislation, Applicants are provided the “option” of providing SIN numbers. These SIN numbers will then be shared with CRA to access the Income Verification  Program. While not providing a SIN number cannot be a stand-alone reason for application refusal (according to the Regulatory Impact Analysis Statement), the groundwork is there for it being a reason to severely delay the application. [Editor’s note: Will be doing more indepth paper on this topic coming May 2015]

The ability of any human, let alone even tax/accounting software, to ensure all this information is accurate is in my opinion impossible. The requirements are high. I remember back in 2013 when I applied for Government of Canada Security Clearance (for an internship I never did), I only had to provide a 10-year work/employment history.

Now applicants will need to know the date of every trip ever taken, every dollar ever earned and possibly even spent. Past failures to keep accurate records of flights or the use of a less than capable tax accountant can now come back to bite an applicant in the behind.

Every application will contain errors. It is inevitable under this new “compliance heavy” regime. Yet, every application cannot be refused. Doing so would be a waste of everybody’s resources and make Canada an unattractive immigration destination. Needless to say, I believe immigration practitioners can no longer rely on the self-declarations/draft responses of an applicant when filling out forms and will ultimately need a piece of hard evidence (tax form, employment letter, or visa stamp) to verify each date and dollar provided.

Conclusion

I think that the new requirements give a discretion to immigration officers to refuse any application and to ensure that the application is not susceptible to appeal or review.

It will be interesting down the road, to compare reasons for refusal and uncover how said discretion is being applied. I wouldn’t be surprised if net worth and country and origin play a huge factor.

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Misrepresentation and Express Entry: New Rules Haven’t Changed but the Risk Certainly Has

Introduction

With the introduction of Express Entry earlier this year and the Government of Canada’s corresponding efforts to make the application system more accessible to the average Canadian, one intended consequence may be Applicants making what amount to “unforced errors” during the application process.

Corresponding, the Government appears to be taking an increasingly hard line towards Applicant’s who submit incorrect and possibly misleading information for the purposes of obtaining immigration status.

When do mistakes become misrepresentation? What happens if you forget important dates, names, and information on your Express Entry Application and realize this fact later on.

Misrepresentation Provisions of IRPA

As a result of recent changes to the legislation, the bar for misrepresentation has increased from 2 years to 5 years. Furthermore, Applicants will be barred from making a permanent residence application for the duration of that 5 years.

Prior to the change, many applicants would leave Canada but simultaneously file an application for permanent residence such as a spousal sponsorship which would be processed by the time the two years had been fulfilled.

Finally, as a backend issue, it is important to note that the ban applies retroactively. Even if the misrepresentation occured prior to the new legislation, the uncovering of the misrepresentation on today’s date would create the 5-year ban.

The provisions themselves state as follows:

Misrepresentation

  •  (1) A permanent resident or a foreign national is inadmissible for misrepresentation

    • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

    • (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

    • (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

    • (d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that Act.

  • Marginal note:Application

    (2) The following provisions govern subsection (1):

    • (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

    • (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

  • Marginal note:Inadmissible

    (3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).

For the purposes of finding whether an error is a misrepresentation or not, we must determine whether the applicant “directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act”

Without going specifically into the case law/administrative guidance on this issue, there are several factors that could be taken into consideration:

  • How material is the error (i.e. does the error affect outcome?)?
  • Was it an honest error? –
  • In the case of non-disclosure,  did the individual honestly and reasonably they were not misholding material facts?
  • Is there sensitive personal situation being concealed to avoid embarrassment?
  • As the applicant been given a chance to respond to the error?
  • And most importantly, what are the specific facts and surrounding circumstances of the case?

Why the Risk Has Increased with Express Entry

In many ways, Express Entry is the same as the paper form and misrepresentation is assessed no differently. However, with Express Entry rather than making one paper application, there are three stages (arguably more) where you are submitting information to Citizenship and Immigration Canada. Information must be substantiated at all three stages and that information is also very likely to change during that period.

When creating an Express Entry profile, applicants are asked to create a profile which asks questions about their individual bio-data, their employment and educational histories, and their finances and family ties (among others). This information is used to generate a Comprehensive Ranking Score, by which they can later be selected from the pool.

Upon receiving an Invitation to Apply for Permanent Residency (“ITA”) Applicants will then have to provide significant documentation (within only 60 days) in order to create an Electronic Application for Permanent Residency (“E-APR”). This documentation includes a reference letter for each employment ever held, dates for each trip ever made, relevant pay stubs, tax documents, and family information.

To complicate matters, information can change and the Comprehensive Ranking Score/eligibility for Express Entry can change during the time a profile is created, and ITA is issued, and a E-APR is granted. This information has to be up-to-date throughout. For example, work permits may expire, family members may be born, and educational/work histories can change.

CIC appears to still be in the process of figuring out how it will assess misrepresentation specific to Express Entry. They have however, in a program delivery update, put out the following information

Assessing for misrepresentation

Applicants are warned that if they misrepresent their qualifications in their Express Entry profile or their e-APR, they may face a five-year ban from submitting any further immigration applications to Canada, including temporary residence applications.

If there are discrepancies between the information in an applicant’s profile and the information entered in the applicant’s e-APR which are not the result of a legitimate change in the applicant’s circumstance, the officer should determine whether a finding of misrepresentation under A40 applies.

For additional guidance on misrepresentation, processing offices should consult the misrepresentation section of ENF29 (PDF, 604.30 KB). The procedures for determining misrepresentation, including procedural fairness, remain the same under Express Entry.

If both A11.2 and A40 apply, the application should be refused on both grounds.

Because the very process of Express Entry is points-based, and minor changes can lead to differences in points and thus could affect whether an individual meets the threshold to be selected – the materiality of Express Entry errors is arguably greater than it was with paper-based forms.

Also, one of the reasons that misrepresentation is also more likely to occur during Express Entry is that the system itself (and the way data is inputted) can lead to mistakes.

When creating a profile and filing out the online forms, a series of boxes open up, some allowing you to select options and others requiring you to type answers. However, unlike with a paper form, it is difficult to see this information side by side, as some boxes close while others open and there is presently no option at the end to “review all information.”

Five Steps You Can Take to Try and Mitigate Express Entry Misrepresentation

1. Know when to hold them, know when to fold them – if information comes up that could be significantly erroneous consider declining ITAs and not submitting E-APRs until that information is corrected.

2. Gather the evidence up front- Unfortunately (or fortunately), lawyers now have to serve as both legal advisors and information auditors. An applicant can fill out a paper-based survey, swear on their lives, but until they have a letter from the employer stating X is X, it is nearly impossible to confirm this. Even though requirements are at the backend, try and get them done on the front end.

3. Follow-up with CIC during process – Whether you are an immigration rep or applicant, it is important to follow up with CIC throughout the process. We know that CIC has admitted that the algorithms and forms aren’t perfect, that changes to the forms are pending, and has even recommended that Applicant’s put in covering letters to explain discrepancies.

4. Write a covering letter prior to submitting E-APR –The value added that reps used to provide prior to Express Entry was submitting a covering letter explaining discrepancies. That should not change and may be useful when an Officer is looking at the error down the road.

5. Have a record of everything – It is too risky these days not to have a paper trail (again whether you are a rep or applicant), of what you have corresponded to the client, what you have corresponded to CIC, and the documents that have been submitted. Just because the process has moved virtually, it does not eliminate the need to have paper evidence of this correspondence and communication. If necessary, take tons of screenshots!

 

Hope this has somewhat helped 🙂

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CKFTA Pt. 1 – “Management Trainee On Professional Development”

Most of the Canada Korea Free Trade Agreement (CKFTA) has been in force since January 1 of this year. However, in the few months that it has been implemented it appears very little is know or has been written about its potential for facilitating movement between our two countries.

In this first installment, I will be looking at the specific category of “management trainee on professional development” , an definition and category that is distinguishable from the North American Free Trade Agreement (NAFTA) upon which much of the CKFTA is based.

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Agreement Text

Article 12.8 defines “management trainee on professional development” as follows:

management trainee on professional development means an employee who has a Bachelor or Baccalaureate degree or who has a license at a professional level concerning the intra-company activity, who is on a temporary work assignment intended to broaden an employee’s knowledge of and experience in a company in preparation for a senior leadership position within the company;

There are a few key words in the definition.

  • The individual must be an employee,
  • The individual must have a bachelors license at a professional level
  • There is an intra-company activity
  • The work assignment must be temporary
  • broaden knowledge and experience in a company in preparation for a leadership position within the company;

Annex 12-A: Temporary Entry for Business Persons – Section C – Intra Company Transferees is the first and only mention of management trainee in an application form.

It provides that :

8. Each Party shall grant temporary entry and provide a work permit or visa to a business person employed by an enterprise who seeks to render services to that enterprise or a subsidiary or an affiliate or a branch thereof as an executive or manager, a specialist or a management trainee on professional development, provided that the business person otherwise complies with existing immigration measures applicable to temporary entry. A Party may require the business person to have been employed continuously by the enterprise for one year within the three-year period immediately preceding the date of the application for admission.

Significance

The significance of having “management trainee” included in an Intra-Company Transferee (“ICT”) section is a departure from a work permit category that has gotten harder and more difficult to apply for.  The benefits of an ICT are clear.  These applicants are exempt from having to obtain a Labour Market Impact Assessment.

In Operational Bulletin 575 – June 9, 2014, Citizenship and Immigration Canada introduced changes making the Specialized Knowledge category more rigorously defined. Under the current ICT regulations, the worker must possess “knowledge at an advanced level of expertise” and “proprietary knowledge of the company’s product, service, research, equipment, techniques or management.”

The only other options are “Executive”, “Senior Manager”, or the even more difficult to obtain “Significant Benefit” category. All of the above options seem more akin to Senior level “experts” rather than younger Korean trainees.

While under the new Express Entry system, they will have difficulty obtaining permanent residency under the Canadian Experience Class or Federal Skilled Worker program for the work experience they gained as a management trainee, it opens up pathways to permanent residency by virtue of the significant Canadian work experience gained. For example, Provincial Nominations and LMIAs are arguably easier to obtain with previous Work Experience with the same Employer supporting the nomination/application.

It is also important to note that both Canada Korea pledge not to require labour certification tests (i.e a LMIA) or impose or maintain a numerical restriction (i.e. a cap) on applicants to this section.

Potential Strategy – Business perspective

A start-up Korean company looking to do business in Canada may be interested in incorporating in Canada to create a vehicle for their management trainee. They may even think about bringing over a senior exec (as an ICT) to begin operations. A trainee, of course, cannot train by themselves and the presence of another Korean senior exec or, even better, Canadian executive and manager would be an asset down the road.

It may also be useful to have the management trainee obtain a Canadian undergraduate/graduate degree, something that will give them significant leverage in the case they wish to pursue a more permanent option down the road. Of course, such a process would enable the student to obtain a Post-Graduate Work Permit for three years, and there would be no need to obtain an ICT for the present time being.

However, down the road, if the Korean Foreign National student chooses to return to Korea to work for a few years or for those Foreign-educated Korean students who do not have Canadian work/study experience, the management trainee option may open up significant doors that otherwise would have been closed.

Canada is eager to provide the experience to future Korean management and leaders. It is up to the Korean companies now to take advantage.

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Updates in Immigration Law – February 4, 2015- March 4, 2015

This is a regular service I provide to the lawyer’s at Larlee Rosenberg, Barristers and Solicitors. A brief summary (meant for a five minute update) on everything that has changed in the past month in the field of Canadian Immigration Law.

Changes in Canadian Immigration Law are spread across multiple sources. The Government/CIC releases operational bulletins, program delivery updates, and new Ministerial Instructions amending the laws and regulations of Canadian Immigration Law.

Again, it is to mentioned that the below information is NOT to be relied upon as an accurate summary of the changes or of the law as it stands and readers interested in learning more should follow the links and conduct independent research to verify the information contained herewithin.

A. Operational Bulletins

None

B. Program Delivery Updates

1. Update to Express Entry instructions relating to certain economic permanent residence programs (February 5, 2015) – http://www.cic.gc.ca/english/resources/tools/perm/express/refuse.asp

Application of A11.2 (New)

  • Citizenship and Immigration Canada (CIC) clarification under 11.2 that Comprehensive Ranking Score (CRS) must be met at time where applicant issued Invitation to Apply (ITA) and when electronic Application for Permanent Residency (e-APR) is received by CIC;
  • Officer’s must determine that qualifications are corroborated with supporting documentation and that information in Express Entry profile has not materially changed to degree that Applicant would not have been issued ITA;
  • Program officer reviews program requirements and misrepresentation;
  • Info from EE will be updated into e-APR, if change in info must update in eAPR. Info locked upon e-APR;
  • Birthday after ITA may lower CRS but officer can issue s.25.2 public policy exemption;
  • Misrepresentation can be found where discrepancy between Express Entry profile and e-APR not result of legitimate change;
  • Change in circumstance after e-APR can only lead to application refusal if determined change occured before e-APR submitted OR applicant no longer meets minimum requirements of program to which they are applying (i.e. birth of new baby and settlement funds);
  • Change in family member – requires new Additional Family Information form + applicable fees;
  • Settlement funds – not included in CRS but affect Minimum Eligibility Criteria (MEC) for Express Entry (Federal Skilled Worker and Federal Skilled Trades Program). Failure to declare child but later declares child exists- can be assessed under A11.2;

Intake: Applications received on or after January 1, 2015 for permanent resident programs subject to Express Entry (Updated)

  • ITA recipients including Provincial Nominee Program (PNP) applicants required to submit their application for permanent residence electronically per R12.01(1);
  • Applicants can apply to multiple programs subject to cost recovery fees;
  • Lock-in date for age is e-APR. PNP lock-in date (usually when app for nomination received) trumps e-APR lock in-date. Change done by processing officers via Global Case Management Software (GCMS);
  • Incomplete applications refunded;
  • Document checklist – generic and personal;
  • Translation of documents – requires certified translation of all non-English/French with original copy of doc;
  • Medical examination confirmation – upfront medical report (in exceptional circumstances only proof of medical appointment scheduled/letter of best efforts) for PA, spouse/common law partner, and dependent children including non-accompanying children;
  • Police Certificates – issued within three months prior to submission of e-APR for each country (except Canada) where individual lived for six or more months in a row;
  • Passport biopage – clear and legible copy for principal applicant, spouse/common law partner, accompanying dependent children;
  • Proof of work experience – for each work experience declared – letter for employer; Copies of T4 tax slips and, Notice of Assessments, and Option C printouts by the Canada Revenue Agency for period of work experience; For periods of self-employment – articles of incorporation/documentation from third-parties/payment details for principal applicant and spouse/common law partner;
  • Proof of funds – official letters from financial institutions;
  • Proof of Common law union/cohabitation;
  • Marriage, divorce, legal separation, death certificate, adoption certificate if applicable;
  • Proof of relationship to Canadian relative – citizenship/pr card, evidence reside in Canada (six months prior); birth certificate if Canadian children;

2. New instructions regarding to the Immigrant Investor Venture Capital class (February 10, 2015)
http://www.cic.gc.ca/english/resources/tools/updates/2015/2015-02-10.asp

  • New instructions clarify how IVC applications are to be processed. Two stage completeness check. Due diligence and travel history required in second stage;
  • Language requirements currently set at 5 CLB (in all areas), but can change according to CIC requirements;

3. New instructions on employer-specific work permits with Labour Market Impact Assessment exemptions (February 13, 2015)
http://www.cic.gc.ca/english/resources/tools/updates/2015/2015-02-13.asp

  • New requirement as of February 21, 2015 which requires employers who provide job offers to LMIA-exempt foreign nationals to submit job offers directly to CIC using form and electronic system provided and to pay new fee;
  • Pay fee- take receipt number to fill out Offer of Employment to a Foreign National Exempt from a LMIA form [IMM 5802] and then submit via email.
  • As per R200(1)(c)(ii.10 provides officers authority to request information from employers without having to use foreign national applicant as conduit for that request;

4. International Mobility Program  – Introduction of two new fees (February 20, 2015)
http://www.cic.gc.ca/english/resources/tools/updates/2015/2015-02-20.asp

  • $155 individual;
  • $465 for group of performing artists and their staff (three or more persons);
  • $230 employer compliance fee;
  • $690 employer compliance maximum fee;
  • $100 open work permit holder fee;
  • Co-op work, NSERC and NRC Reseachers exempted;

5. Exemptions to the 12- or 36-month pre-removal risk assessment bar (February 24, 2015)
http://www.cic.gc.ca/english/resources/tools/updates/2015/2015-02-24.asp

  • Nationals of Libya exempt from 12 -month PRRA bar if PRRA decision made between February 20, 2014 and February 19, 2015;

6. Change to the email addresses of the International Mobility Worker Units, formerly the Temporary Foreign Worker Units (February 26, 2015)
http://www.cic.gc.ca/english/resources/tools/updates/2015/2015-02-26.asp

  • Toronto (serving Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, Yukon, Northwest Territories and Nunavut)Toronto International Mobility Worker Unit
    E-mail: CIC-IMWU-UMIT-Toronto@cic.gc.ca
  • Montreal (serving Quebec, Nova Scotia, Prince Edward Island, New Brunswick, and Newfoundland and Labrador)Montreal International Mobility Worker Unit
    E-mail: CIC-UMIT-IMWU-Montreal@cic.gc.ca

7. Update to the instructions related to oath of citizenship as a result of recent decision by Federal Court (February 27, 2015)

  • Removed requirement that candidate must be seen taking oath of citizenship;
  • Candidate must sign Oath or Affirmation of Citizenship (CIT 0049) form after they take oath of citizenship at citizenship ceremony;

C. Ministerial Instructions

Vol. 148-No. 9 – February 28, 2015
Regulations Amending the Citizenship Regulations; http://gazette.gc.ca/rp-pr/p1/2015/2015-02-28/html/reg1-eng.php

  •  Currently no authority under Citizenship Act or Citizenship Regulations to collect SIN numbers for purposes of exchanging information with CRA
    • Regulations now enable CIC to advise and share information with CRA on tax filings
  • Citizenship representatives need to be regulated by a professional body
    • Regulations now create this body and also enable CIC to disclose to a government body any ethical/professional wrongdoing
    • CIC/Minister may disclose this wrongdoing to the professional body
  • Privacy Act provides barriers to CIC’s authority to share – information with other government bodies
    • CIC has the express power to collect information from other government bodies
    • Specifically, will work with EDSC, CBSA, and CRA
  • Lost Canadians born before 1947 extended citizenship as well as the first generation; Adoptions before 1947 – extended citizenship;  International adoptions – requirement that adoption cannot circumvent legal requirements for international adoption
  • Accompanying persons at hearings with citizenship judges are unqualified and inappropriately obtaining information about process
    • Individuals serving as accompanying persons must be over the age of 18, have adequate English/French skills, and cannot be themselves a pending Citizenship applicant.

Regulations Amending the Immigration and Refugee Protection Act;
http://gazette.gc.ca/rp-pr/p1/2015/2015-02-28/html/reg2-eng.php

  •  Concern that applicant misrepresenting income and residency in their applications
  • Solution is to allow CIC to communicate directly with CRA to obtain taxpayer information through a system called the Income Verification Program, which requires the social insurance number (SIN) of individuals regarding whom information is sought
  • Amendments enable CIC to collect SIN of applicants who wish to renew or replace permanent resident cards, obtain permanent resident travel documents, or sponsor their parents and grandparents as member’s of the family class
  • Enable CIC to disclose the SIN of applicants to the CRA, and once information-sharing arrangement established make Income Verification Program accessible to CIC
  • Allows for tracking of individual’s who may be unlawfully receiving benefits and services
  • Ensure accuracy of applicant’s information, support measures as part of redesigned PGP program guaranteeing prospective sponsors are contributing to public services their sponsored family members are likely to use;
  • Applications cannot be refused solely on the basis of non-disclosure of SIN, and eligibility still will have to be decided on the basis of the entirety of information provided.
  • Changes are made R.137.1 of the Immigration and Refugee Protections Regulations

EXTRA Vol. 149 No. 1 – New Ministerial Instruction
http://gazette.gc.ca/rp-pr/p1/2015/2015-02-13-x1/html/extra1-eng.php

  • Application Deadline for Immigrant Investor Venture Capital Class extended until April 15, 2015

Vol. 149, No. 3 – February 11, 2015 – Rules Amending Federal Courts Immigration and Refugee Protection Rules
http://gazette.gc.ca/rp-pr/p2/2015/2015-02-11/html/sor-dors20-eng.php

  • New JR forms – make sure you are using updated versions (available on link above)

 

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Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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