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Express Entry Technical Amendment: You Can Get Scores for Non-Continuous Canadian Work Experience

Human Resources concept

Citizenship and Immigration Canada (CIC) has made several technical amendments which came in force May 30, 2015. These amendments are a welcome clarification and should assist those applicants with several years of Canadian work experience. Ultimately, it may give several applicants a big Comprehensive Ranking System (CRS) Score point boost!

Per CIC (http://www.cic.gc.ca/english/department/mi/express-entry.asp) [emphasis added]:

DEPARTMENT OF CITIZENSHIP AND IMMIGRATION

Notice: A technical amendment has been made to sections 15, 19 and 25 of the Ministerial Instructions for the Express Entry Application Management System.

Paragraphs 15(3)(b) and 19(4)(b) were modified to remove the requirement that Canadian work experience be continuous for determining points under the Comprehensive Ranking System for the candidate, spouse or common-law partner.

For consistency and clarity, the Ministerial Instructions were also modified as follows:

  • The term “with one or more employers” was added to paragraphs 15(3)(b), 19(4)(b) and 25(1)(b);
  • The term “full-time employment” in subsections 15(5), 19(6) and 25(3) was replaced by “full-time work;”
  • Subsection 19(3) was repealed; and,
  • The word “emploi” in subsections 15(6), 19(7) and 25(4) and paragraphs 15(7)(a) and 19(8)(a) of the French version of the Ministerial Instructions was replaced by “travail.”

These Instructions come into force on May 30, 2015.

Note: As of May 30, 2015, all valid Canadian work experience will be recognized under the Comprehensive Ranking System (CRS) of Express Entry as CIC is removing the requirement that Canadian work experience be continuous. As a result, foreign nationals with Canadian work experience could see an increase in their CRS points.

You can see a specific effort by CIC to address the challenges particularly faced by the increasing number of contractors (explaining the change in definition from employment to work) as several were negatively impacted by the continuous work experience.

If I am not mistaken, the challenge with continuous work got to the point where program officers at the latest CBA National Immigration Law Conference in Ottawa were recommending that Counsel fill in the gaps of employment (much in the way we do 10 year work history attachments) with explanations. Again, whether this is acceptable practice is not readily clear from the way the electronic form is formatted.

Do note:

Continuous, skilled (NOC O, A, B) work experience of:

  • at least 1 year (Canadian work experience) in the last 3 years for the Canadian Experience Class;
  • and 1 year (can be Canadian or Foreign work experience) in the last 10 years for the Federal Skilled Worker Program;

are still front end requirements to qualify for Express Entry and are not affected by these technical amendments.

 

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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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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 […]
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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.

4879998_orig

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” […]

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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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