By Author: admin | September 15, 2014
With not much fanfare, the Federal Court of Appeal dismissed the case of Shahid (aka Tabingo) v. Minister of Citizenship & Immigration. This case stated that the Minister of Immigration was permitted to terminate the thousands of skilled worker applications that had been languishing for years with the immigration department. It also stated that when terminating a skilled worker application, there isn’t any significant ambiguity or discretion used by an officer in light of s.87.4(1) of the Immigration Refugee Protection Act:
87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.
The Court of Appeal stated that is ok to terminate the applications since Canadian immigration law allows the Immigration Minister to prioritize immigration’s economic benefits to Canada (and consequently terminate the old applications which were lodged based on Canada’s older economic goals).
The Federal Court of Appeal also said that is ok if the law at 87.4(1) to terminate the skilled worker applications is retrospective (i.e. enacted with the effect of terminating FSW applications filed before 87.4(1) came into effect), given that 87.4(1) clearly was designed to be retroactive.
The decision acknowledged that there was a slowness of processing applications from skilled worker applicants hailing from Asia and Africa in comparison to applicants from Europe and America. However, the Court of appeal accepted that the Immigration Minister has discretion to allocate resources pretty much however the Minister deems suitable to achieve Canada’s immigration goals.
The decision acknowledged the financial loss of the FSW applicants who paid filing fees and perhaps fees for medical examinations and courier fees when lodging their skilled worker applications. Nevertheless, such losses don’t trigger a ‘right to life, liberty and security of the person’.
This doesn’t bode well for investor applicants whose cases were also terminated by legislation similarly drafted (probably more clearly drafted then the 87.4(1) of IRPA. The investors lost at the Federal Court, but have a case pending at the Federal Court of Appeal.
Not much media coverage of this decision took place despite the fact that about 280,000 applications were confirmed to have been properly terminated under Canada’s immigration laws by this recent decision at the Federal Court of Appeal.
By Author: admin | September 9, 2014
If you’re an Afghan seeking entry to Canada as a spouse, be prepared to answer the following questions:
11. What weaponsand/or explosives training did you receive and when?
12. What weapon did you carry/use?
Note that there is no opting out of the above question (by, for example, asking if you have ever received weapons training) – in other words. Canada’s immigration department presumes that all Afghan boys over 14 years of age and all Afghan females over 17 have invariably had training in arms and possess such weapons now.
Similarly, there is a presumption that all Afghans have been a member of “a special force, security service (KhAD, WAD), police force (Sarandoy, Ministry of the Enforcement of Virtue and Suppression of Vice), prison force, government or tribal militia, or intelligence organization that was not part of the armed forces of Afghanistan,” OR “a member (civilian or uniformed) of the armed forces of any state…”, OR, “a member of a civilian defense group, a resistance organization or an armed resistance group (includes Mujahideen or any group trained for hostile operations inside or outside [Afghanistan].”
If you answer that you were none of the above, the next question on the CIC form asks, perhaps incredulously is, “Explain how you avoided serving with any side during the conflict in Afghanistan” – in other words, the presumption of Canada’s immigration department is that all Afghans were involved in the many conflicts in Afghanistan, absent an explanation of how they avoided partaking in the conflicts.
CIC asks Afghans (and only Afghans) “Have you ever participated in any type of demonstration? If yes, describe the circumstances, location, date and issue.” I don’t think the term demonstrations includes the kinds that take place at Amway or Tupperware parties.
The above questions are arguably relevant for the purpose of admissibility to Canada (the structural presumptions of wrongdoing notwithstanding).
However, CIC also asks Afghans to act as intelligence agents for the Canadian government with the questions, “Have you ever been involved in or observed the detention of civilians or prisoners of war?”, “Have you ever been involved in, or observed, the interrogation of civilians or prisoners of war?”, “Have any members of your family (parents, aunts/uncles, grandparents, sisters/brothers) held a position with a government of Afghanistan? “ and, “Have you ever been involved in or observed transporting prisoners of war or nvoluntary transportation/relocation of civilians?” – in other words, if you want to be reunited with your Canadian spouse, you may have to become an informant on the goings on of Afghan prisoner inventory, or perhaps rat out uncle Abdul who was a low level cook in an Afghan regiment, or else face misrepresentation.
There are thus structural presumptions in the form (officially known as the IMM 3911E). Another question, i.e. “21. What was your father’s occupation in Afghanistan? “ is something of an enigma. Perhaps it is a throwback to those days where there was a presumption that your father’s occupation gave a clue about your character or economic station in life. More likely, this question is meant to triangulate the Afghan applicant’s circumstances and determine if the Afghan applicant is telling a falsehood to Canada’s immigration department. One falsehood in this form would lead to misrepresentation and a ban from Canada for two years.
Interested in more specific immigration or Canadian visa matters? Contact Chaudhary Law Office.
By Author: admin | September 1, 2014
The Toronto Star cited a ‘secret proposal’ within Canada’s immigration department to remove citizenship rights to babies born in Canada to non-citizens. Similarly, in a struggle to remain relevant in the internet age, the food-porn periodical Toronto Life published a similar article, drenched in alarmist xenophobia about how Canadians are ‘suckers’ to persons from China, Iran, India, Dubai, Jamaica. Canadians are apparently ‘suckers’ for this queue jumping phenomenon of instant Canadian citizenship.
The numbers of babies involved per year (500 out of about 360,000), combined with the fact that some of these babies include offspring of foreign consular staff (who wouldn’t qualify for Canadian citizenship) don’t justify the ban of the ‘anchor baby’.
The immigration department conceded that there was a “significant operational and cost implication” to the recommendation, likely because this would force each province to modify the existing birth certificate regime to account for the country of citizenship. Apparently, the ideology of smaller, efficient government is more nuanced than simply decreasing social assistance and cutting government pensions – increasing government bureaucracy for certain endeavors is somehow worthwhile in this climate of fiscal austerity.
The reality is that children born in Canada to foreign parents confer no benefit to said parents. In theory, the Canadian born child can sponsor their foreigner parent with many qualifications: the said child must be at least 21, and have had a significant amount of annual Canadian income for the previous three years, and await about four to nine years of processing for the foreign parents to actually become Canadian permanent residents (assuming the once-fertile parents can pass the required immigration medical). Thus, about 30 years after the ‘anchor baby’ is born, the parents might be able to become Canadian.
By Author: admin | August 18, 2014
Canada experience class applicants are all subject to the minimum requirement to prove one year of full-time paid experience in Canada in an occupation at an appropriate skill level. The CEC program can be seen as relatively straightforward for certain cases. However, there are other cases which may fit a more complicated profile in the eyes of the immigration officer who ultimately looks at a CEC application.
The type of CEC application that would be subject to more scrutiny would be one in which the applicant worked for a company in Canada that had perhaps less than 10 employees. Another point of concern would be if the applicant worked for a company with less than 10 employees and had the same ethnic background as the employer.
Additional scrutiny by the immigration department may result if the above profile matches a Canadian employer of a CEC candidate. The type of additional scrutiny that would take place may include the immigration officer contacting the employer directly without the knowledge of the applicant. The purpose of this contact by one of Canada’s immigration officers would be to confirm that the employer did indeed sign a letter indicating the job duties performed by the applicant.
It is in this type of case where having an immigration lawyer represent the applicant can allay such concerns. First, an experienced immigration lawyer would ensure that the job reference letter conforms to the expectations of the immigration Department, and remains agreeable to the employer. There is some confusion when an applicant for the CEC finds out the immigration department’s specifications for a work reference letter. There is also some confusion about what the employer should write in terms of duties performed; the National Occupational Classification (“NOC”) is meant as a guide but if the employer writes a word-for-word copy of the NOC duties within the work reference letter, then this may cause suspicion about whether the person fulfilled the job duties.
Some guidance about these issues are referenced in a case our office filed at the Federal Court, called Nauman.
By Author: admin | August 1, 2014
My client (a US citizen seeking an Application for Rehabilitation based on a couple of DUIs 25 years ago), hired me to file an application for rehabilitation. Recently, I submitted a request for an update to the New York visa office given the 10 months that have elapsed.
In response, a Canadian visa officer at the New York visa office sent me a form letter with no file number and no name. In fact, the only way I knew which client the form letter was for, was the fact that I only have the one client whose Rehab application is at that office. Another colleague of mine with an application for rehabilitation received the identical form letter for an rehabilitation application. In other words this form letter has been sent to many other clients, not just my client.
The form letter gave me the list of documents to file (all of which we already submitted) and instructed to submit those documents within 60 days. Since this application was filed august 2013 (almost a year ago), the visa office was saying in colloquial terms something like “Yeah, we got your package we’ve done nothing but if you didn’t give us everything, send it since we’re probably going to look at the case soon”.
10 months for a rehabilitation application poses a difficult situation for a person who has to travel for work purposes to Canada n an ongoing basis. The slow processing names for rehabilitation may necessitate a temporary resident permit application at a Canadian port of entry, but the issuance of a temporary resident permit is at the pleasure of a port of entry officer who’ll ask a person why they want to enter Canada despite having a criminal record. They’ll also weigh the seriousness of the offence committed to see if you’re a safe risk to enter Canada. – not an easy thing to determine without being interviewed (sometimes for a couple of hours) by a Port of Entry Officer.
By Author: admin | July 16, 2014
An authorization to return or “ARC” is necessary if you’ve been deported from Canada. One required document is the certificate of departure, which is issued right before you leave Canada as a deported person.
Some individuals end up in a situation where they receive a deportation order and then leave without letting the Canada Border Service Agency know. This means the CBSA has no idea when you departed Canada, making the ARC more difficult for a visa officer to approve.
Other factors that may make an ARC more difficult to approve include the reason you’re entering Canada: is it for an important reason such as to live with a Canadian spouse, or is it less significant like sightseeing for a couple of weeks? The latter situation would be more of a challenge to get an approved ARC.
Similarly, are you well established in your home country with a good job and/or a respectable amount of assets, or are you living on the economic edge, just scraping by? The amount of establishment in your home country is a factor considered by a visa officer in an ARC.
Complicating factors may include if you delayed your deportation, or if it was necessary to be detained by the immigration authorities before being deported.
With the increase in sharing of information between governments of developed countries, a deportation record in your file may affect your entry to other developed countries such as Australia, the UK, USA and New Zealand. An ARC may help reduce the negative impact of a deportation when seeking entry to other countries.
By Author: admin | June 24, 2014
Canada’s new citizenship law received final passage on 2014-06-20 . It includes the ability to revoke citizenship from persons who have dual citizenship and are convicted of serious crimes such as terrorism. The timing of this law, coinciding with a Canadian citizen fighting with a terror group in the Middle East and burning his Canadian passport could not be better; on the face of such extremism, the law could be seen as a welcome and necessary defence to the scourge of terrorism. In fact, it is not.
The key problem with the new citizenship law is the creation of at least two classes of citizenship: Canadians born in Canada and with no other citizenship, and Canadians who have another nationality (either directly or via their parent or spouse). In other words if you’re Canadian born, and your parents and spouse are Canadian born, you are free to be a terrorist/fund a terrorist group, and advocate for terrorism to your heart’s content, and never be deported/banished from Canada.
On the other hand, if you have a parent or spouse with citizenship from another country, and are a convicted terrorist, your Canadian citizenship can be revoked and you may be deported to a place where you are theoretically entitled to citizenship. This will create stateless persons, as other countries’ laws on citizenship may be vague or inconsistently applied. The recent exampleDeepan Budlakoti a person born in Canada whose parents were from India. Having led a life of crime in Canada, his Canadian citizenship being stripped on a technicality, he is limbo because India does not want him. Can you blame India? Why would they want convicted criminal who was born and raised in Canada sent to them?
Similarly, Canada has opposed the return to Canada of Canadian citizens convicted of crimes in the USA. It is a natural reaction, designed to protect the Canadian public. Perhaps the Canadian government was emboldened by the success of deporting many permanent residents of Canada back to the Caribbean, despite being raised in Canada. The pugnaciousness of such deportations can be mitigated with a sunny announcement by the Honourable Minister Jason Kenney celebrating Jamaican Diaspora day.
The law of banishing people passed parliament so easily because who would reasonably be against keeping terrorists in Canada? The Canadian Bar Associations opposition, buried in distinctions about “classes of citizens” gets easily drowned out by the Immigration Minister labeling lawyers as associating with “terror fundraisers”.
The discussion of terror presumes that terrorists are exclusively from “those countries” and are “them” or the “other”, and not “us”, and do not belong here, in Canada. The reality is of course not so clear, but misperceptions persist, such as when in 2009 security personnel in a German Court room reflexively shot the wrong person when trying to stop a murder that was taking place in during the court hearing (the murderer was an ethnic German immigrant from Russia , and the security personnel shot the victim, an Egyptian).
The Canadian government has signed treaties and hence have an international obligation to prevent statelessness. For that reason, significant portions of Canada’s citizenship laws will be challenged as unconstitutional. This will keep lawyers busy. Unfortunately, such laws, badly drafted by the government, will also cost the Canadian public who will pay for Department of Justice lawyers to defend these laws.
By Author: admin | June 9, 2014
Apparently to Canada’s Immigration Minister Chris Alexander, immigration lawyers are “activist lawyers” – attempting to drum up business by promoting the interests of convicted terrorists and serious criminals over the safety and security of Canadians by debating
proposed legislation to change Canada’s citizenship laws.
The Federal Government’s disdain for persons with specialized knowledge, such as scientists discussing climate change, professors dealing with proposed changes to prostitution laws, or the Supreme Court of Canada on the matter of who to select as a judge, or legal experts on the ill-fated attempt to reform the senate , or government researchers regarding foreign policy in the Ukraine, or privacy experts on who should be appointed Privacy Commissioner, is meant to label those who disagree with this government as ‘special interest groups’ who want to entrench their financial well-being by keeping the status quo. It is meant to ignore the fact that persons with specialized knowledge often are concerned with what are the best interests of the public.
Career politicians (i.e. those who have had little experience working in the private sector) may not know what immigration lawyers do, perhaps confusing them with real estate lawyers operating in a sleepy town; immigration lawyers argue, and advocate on behalf of their clients often in adversarial settings.
The Canadian Bar Association’s take on the proposed citizenship changes was measured and even agreed with some of the proposed streamlining of the law, such as defining what constitutes ‘residency’. It admittedly, disagreed with other changes. Some of proposed changes to Canadian citizenship will create stateless people, which violates UN conventions of which Canada is a signatory.
It may be hard to believe but the Canadian Bar Association was in some respects acting against the financial interests of immigration lawyers by opposing much of the proposed citizenship changes. For example, one of the citizenship proposals is the “Intent to Reside in Canada if Granted Citizenship.” This proposal if passed, will create a great deal of litigation at the Federal Court (good for immigration lawyers, bad for the public who would have to fund government lawyers to defend the badly drafted law)
Clients with some travel history outside of Canada would fear a rejection of their citizenship, and will face higher scrutiny and enforcement by citizenship officers (good for immigration lawyers who would be hired to defend against such government enforcement) . Such clients may be interviewed by the citizenship department and would want to hire an immigration lawyer to accompany them.
The higher scrutiny would result in delays processing all citizenship cases, both simple and complex (good for lawyers who would be hired to expedite the process, bad for the run of the mill citizenship applicant whose ordinary case would be delayed by government bureaucrats focussing on the more complex citizenship cases).
By Author: Max Chaudhary | May 2, 2014
On A 87.3 (1) the Canada Gazette (i.e. the official newspaper of the Government of Canada) stated, “Any categories for which Instructions are not specifically issued shall continue to be processed in the usual manner, as per processing priorities established by the Department,” which is an implicit reminder that the Minister can arbitrarily terminate/morph the immigration system on a whim, as per the Immigration Refugee Protection Act at 87.3 (1)
One potential arbitrary change is the number of caps on a given occupation. CIC has been ‘cap-happy’ in the recent past changing, for example, the cap in the CEC streamfrom no cap in 2012, to a 12000 cap (in November 2013), and most recently, an 8000 cap.
The government also stated, “Applications received on the same date will be considered for processing having regard to routine office procedures,” meaning that Bob (or whoever) in the CIC Sydney NS mailroom has a ‘procedure’ or a ‘system,’ and your application is at the mercy of it. In one federal court case I had against CIC Sydney, an officer stated that applications are received in ‘pallets’. However, When receiving a number of applications on a pallet, it is not stated how they are placed in queue; they could be placed in queue in alphabetical order or merely the order in which they fell off the delivery vehicle.
It is pertinent to note that the CIC office at Sydney does not allow for hand-delivery of applications. It is thus likely that many applications will be received on a date when a cap is not filled, but will be assessed many weeks later, when the cap has already been filled, hence being disqualified.
If you’re disqualified and miss the cap, the official response is, ”Applicants whose applications do not meet the criteria described above shall be informed that their application does not qualify for processing and shall have their processing fee returned.” This Band-Aid solution of a refund of processing fees is CIC’s way of treating government services like pizza that is free if not delivered at your door in 30 minutes – except the time pressure for delivery is on you, not the government.
The recent changes are likely interim and may change or be ‘caretaker’ or short-term instructions for the more ambitious Expression of Interest system, as per the government’s statement, “…while enabling CIC to prepare for the introduction of a new application management system,” as well as the Press Release of April 2014 which stated, “The CEC cap will be re-set at 8,000 applications, as of May 1, 2014, to cover the transition period leading up to Express Entry.” [Emphasis Added]
The upcoming Expression of Interest system aspires to match employers with applications quickly under the CEC, FSW, and PNP, as per the April 8, 2014 notice, “Qualified applicants can expect faster processing times of six months or less when invited to come to Canada in four key economic streams: the Federal Skilled Worker Program, Federal Skilled Trades Program, Canadian Experience Class, and a portion of the PNP.” This implies there shall be an internal prioritization dictated by the needs of Canadian business and thus, a further layer of arbitrariness in who gets selected under Canada’s Economic Immigration program. One solution to this confusion?Become Irish.
By Author: Max Chaudhary | March 8, 2014
A client with a permanent resident card renewal in progress sought advice from the call centre. The client explained to the call centre operator that he lodged his permanent resident card renewal application with solid proof of living in Canada for more than 730 days but the new PR card had not yet arrived. The client wanted to leave to China to see his recently born granddaughter. without possessing a valid permanent resident card.
The call centre provided advice to the client. It was free advice. More significantly, it was correct but bad advice. The call centre advised this client that he may leave Canada without a valid permanent resident card, because he could always apply to a Canadian visa office for a travel document to return to Canada once the renewed PR card was ready to be picked up.
The above advice is correct. However it is correct only in theory; one may apply for a travel document to return to Canada in the above situation. The reality is that if one applies for a travel document, the visa office will conduct an assessment of the amount of days the applicant acquired in Canada. The amount of days in Canada is calculated as at the time the client lodges the travel document application. This calculation often leads to a finding that the client has not acquired the minimum 730 days. Thus leading to the loss of permanent resident status and necessitating an appeal to regain the PR status.
The appropriate advice would have been to gauge the importance of leaving Canada without a valid PR card against the reason for leaving Canada, along with an assessment of how many days were accumulated inside of Canada. After acquiring the aformentioned information then a decision could be made to either leave or remain in Canada pending the issuance of the new PR card.
Call centre agents have little training; they are neither officers entrusted to make decisions nor have they been called to the bar. As the answers given are spoken over the telephone, they are not responsible for the advice they give. Many clients have told me that they have spoken to two different agents and received two different, conflicting answers. If you have an immigration question that goes beyond the status of an application already in progress, you should consult a Toronto Immigration Lawyer.