Authorization to Return

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.

Canada’s New Citizenship Law: Protecting Against Terrorism

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.

Discussion, Respect, Courtesy When Debating Proposed Changes to Canadian Citizenship

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).

Expression of Interest and Express Entry- What Does This All Mean?!

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.

Call Centre Adventures: Correct but Bad Advice is Common

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.

Proposed Changes to Canadian Citizenship

By Author: Max Chaudhary | February 7, 2014

Sweeping changes to Canada citizenship act were proposed by the government today. The highlights are as follows:

  • The fee to Lodge an application for citizenship will be increased from $200-$400;
  • The requirement to have a minimum of three years out of a period of four will be increased to 4/6 years of physical presence in Canada. In addition, you must reside in Canada for 6 months out of the year for 4 of those years;
  • You must declare an intent to reside in Canada (this is ambiguous – a recent Globe and Mail article says it is ceremonial, but in my view citizenship officers are going to use family history to determine if the person really intends to live in Canada; for example be observing if close family members have a pattern of obtaining Canadian citizenship and immediately leaving Canada for other places such as the Persian Gulf or the People’s Republic of China may be a fact by which intention is determined;
  • Decisions will no longer be made by a citizenship judge rather a “citizenship officer”;
  • You have to have 4 notices of assessments to apply;
  • Penalties for misrepresentation have dramatically increased – up to $100k and 5 years in prison – an admission by the Government that revocation of citizenship isn’t possible in all cases
  • Everyone has to do a language test between the ages of 14-64. You don’t get an interpreter for the knowledge test anymore;
  • Soldiers can apply faster;
  • Minister has more power;
  • There are rules for Immigration Consultants (putting the citizenship act in line with the requirements for licenced consultants as per the Immigration Refugee Protection Act;
  • Dual citizen terrorists can have their citizenship revoked;
  • It also appears that the right of an appeal to the federal court would be restricted by the imposition of an application for leave to seek federal court. This is essentially restricting the ability to have judicial review of a negative citizenship decision;
  • There is a question about whether the proposed law would be applied retroactively. It is likely that there will be transitional provisions to ensure that existing applications for citizenship wouldn’t be caught under the new law, but rather would be permitted to be processed under the law of existing at the time in which those cases were filed.

If you are looking for professional Toronto Immigration Lawyers, Call 416 – 447 – 6118 now!

Parent Sponsorship 2014: A Lottery

By Author: Max Chaudhary | January 15, 2014

02/01/2014 marked the reopening of the parent sponsorship program by Canada’s immigration Department. This followed a two-year freeze on sponsoring parents which dated back to November 2011.

During November 2011, the immigration department abruptly cut off the law to sponsor parents on the ground of an excessive backlog resulting in delays of sponsoring parents. It should be mentioned that the backlog was created by the Liberal party which allocated fewer officers to deal with the sponsorship of parents  from the year 2003. The backlog then grew as parent sponsorships accumulated with insufficient numbers of officers to deal with them. In 1993 out of a total of 256,641 immigrants, 47,267 were family class members. During the 2000s the number dropped to between23000-28000 family class members.  This is creating ‘facts on the ground’ – manufacturing a delay in sponsoring family class and using that manufactured delay to justify tougher criteria in sponsorships, as can be seen below.

The current  criteria for sponsoring is significantly different from the criteria in the past. Specifically, the Canadian wishing to sponsor their parents must have 30% more income than in the past. In addition, the evidence that must be marshaled to prove that income must go back three years ,and in the form of of verifiable tax evidence such as a CRA-issued Notice of Assessment. By contrast, under the old criteria, only one year of income was required to launch a sponsorship of parents. It must be kept in mind however that an additional hurdle lies in the visa officer’s request for further financial information years after the sponsorship has commenced. Thus, if you launch a sponsorship application for your parent during January 2014, and if the processing has not been completed in a couple of years, it is within the right of the officer to ask for additional proof of ongoing similar income from the sponsor i.e. for 2014 and 2015.

Another main criterion is the requirement that the sponsor undertake to support the parent for 20 years rather than 10 years. This in most scenarios indicates a requirement to undertake to support the parents until the parent passes away. Combine this with the fact that parents must be medically examined and not be a burden on Canada’s health or social services, means that one aspect of this lottery is that you must have healthy parents. If they are deemed to be “an excessive demand “ then they would be refused, barring a successful appeal on humanitarian grounds at a different venue, namely the Immigration Refugee Board Appeal Division. Such healthy parents would more likely be those whose morbidity would be brief and/or not financially burdensome at the end of their life.

Xenophobic nut jobs should also rest assured that parents being sponsored are screened for past affiliations to criminal groups and terror groups as well as criminality in general.

The other resemblance to a lottery includes the fact that there is a cap  5000 applicants per year. Given immigration Canada’s official insistence their website itself constitute sufficient information to file an application, they will no doubt be many disappointed would be sponsors who discover that the failure to file a properly constituted application would result in the application being returned. Once that application is returned, the would-be sponsor would likely be ineligible to re-file a sponsorship case and miss the 5000 quota for 2014.

It goes without saying that proper legal advice about what constitutes a proper application to sponsor parents, as well as the appropriate evidence would be essential given this era of quotas on parent sponsorship’s among other types of applications.

 

Call a Toronto Immigration Lawyer for any Canadian immigration issues or concerns you may have – Dial 416-447-6118 now!

Hiring an Immigration Lawyer: Retailer or Wholesaler?

By Author: Max Chaudhary | December 12, 2013

Misrepresentation to Canada’s Immigration Authorities: Any Excuses or Exceptions or Defences?

By Author: Max Chaudhary | December 12, 2013

The definition of misrepresentation under Canada’s Immigration law  is very broad.   Some court  cases state that even  unintentional misrepresentations are the subject of penalties such as a ban from entering Canada for two years.  Such unintentional misrepresentations include the failure of a father to declare the existence of a child when obtaining his permanent resident visa.

The text of the law of for misrepresentation is contained in the Immigration and Refugee Protection Act as follows:

 

40. (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;

 

The above section does not require “spontaneous disclosure” of all information or evidence.  But  there may be an obligation to disclose information or to produce relevant evidence in certain circumstances, given other parts of Canada’s immigration law.  For example, section 16(1) of the Act provides that “[a] person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.”

In Baro v. Canada (Minister of Citizenship and immigration), 2007 FC 1299 at para. 15, the Federal Court recognized that a foreign national seeking to enter Canada has a “duty of candour” which requires disclosure of material facts. The Federal Court also mentioned:

Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (Minister of Citizenship and immigration), [2000] F.C.J. No. 1495(F.C.T.D.)

However, there is an exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information as can be seen in the case of  Medel v. Canada (Minister of Employment and immigration), [1990] 2 F.C. 345, [1990] F.C.J. No. 318 (F.C.A.) (QL).

In Medel, the non-disclosure in question was the fact that the appellant did not tell the immigration officer that the Embassy issuing the visa had requested its return on the ground that it contained an error which the Embassy wanted to correct. The Embassy failed to tell Medel the true reason for the request, namely the withdrawal of the sponsorship by the appellant’s spouse. The Federal Court of Appeal concluded that the appellant was subjectively unaware that she was holding back anything relevant to her admission, and that this belief was reasonable when all the circumstances were considered objectively. The Court noted that this finding might have been different had the Embassy told her the truth.  It can be seen that this case is very unusual, given the lack of candour on the part of

the visa office.

Similarly, Baro (mentioned above) also said that the applicants don’t have to, and are not expected to anticipate the kinds of information that immigration officials might be interested in receiving, stating, “there is no onus on the person to disclose all information that might possibly be relevant”, but the decision maker must look at the surrounding circumstances to decide whether the applicant has failed to comply with s. 40(l)(a).

 

Sometimes, a visa officer discovers a misrepresentation and confronts a visa applicant about it.  Can the person seeking the visa confess and remove the misrepresentation?  Unfortunately, no.  The case of Khan  v. Canada mentions that Paragraph 40(1)(a) is written very broadly in that it applies to any misrepresentation, whether I direct or indirect, relating to a relevant matter that induces or could induce an error in the administration of the Act.  The court mentioned that judges must respect the wording of the Act and give it the broad interpretation its wording demands.  The decision concluded that there is nothing in the wording of section 40(1)(a)indicating that it should not apply to a situation where a misrepresentation is adopted, but clarified prior to a decision being rendered.

 

However, a misrepresentation that was not the fault of the applicant and not material to the administration of Canada’s immigration laws and was corrected before a decision was made, was deemed to not to be  a material misrepresentation as per the case of ali Anwar Ali v MCI 2008 FC 166.

 

As can be seen above, every case is very unique. Small differences within a case may lead to a different conclusion on the issue of whether or not someone has committed a misrepresentation of fact that could bar entry to Canada.

Immigration Canada’s Information Sharing with The Five Eyes, And CRA

By Author: Max Chaudhary | December 9, 2013

A refugee board member recently intimated to me that the Five Eyes intelligence sharing between five developed English speaking countries has been used to detect the presence of, and citizenship status of, foreign nationals visiting the USA. This surprises some refugee claimants, who come to Canada without a travel document such as a passport, presuming that the travel history captured in their passport will be lost along with the absent passport. The Five Eyes can catch travel history and thereby nullify their claim; similarly, I have seen a Pakistani’s successful refugee status get revoked when he failed to disclose his presence in the USA (such presence making his refugee story implausible and hence ‘vacated’).

Persons presenting themselves to Canada’s Immigration and Refugee Board as citizens of North Korea have been discovered to actually be from South Korea. The method by which this was discovered was the information sharing between the USA and Canada – evidence of those alleged North Korean’s fingerprints tendered upon entering the USA, along with a corresponding passport from South Korea – clear evidence of lying about being North Korean.

Starting in December 2013, biometrics become mandatory for more countries: applicants seeking a visitor visa to Canada will have to travel to a licensed agent of Canada’s immigration department (i.e. the VAC), or a local Canadian visa to provide an in-person fingerprint and photograph for $85.00 for a biometric scan. Once captured, it can be compared to CIC’s and the RCMP’s database; such a fingerprint may reveal the applicant for a visitor visa came to Canada previously under a different name, and was deported from Canada; this would render the visitor visa application refused on, among other things, misrepresentation.

Along the same lines of information sharing, recent CIC forms were amended during November 2013 indicating that the persons who sign an immigration form are consenting to give their information to the Canada Revenue Agency; this seems more to enhance the integrity of Canada’s tax collecting system over Canada’s immigration system given that CIC as of January 2014 is imposing a 30% increase in required income to sponsor parents – giving sponsors an incentive to embellish their income to meet the requirements imposed by Canada’s Immigration Department, leading to a potential ‘Gotcha!’ by the CRA when the CRA discovers this a higher disclosed income in a CIC form.

The public’s response to increasing scrutiny is lackadaisical, despite breaches of security within the Canadian government; this is likely due to the government’s emphasis on biometrics’ utility in protecting Canada against terrorists and other criminals. One can see, however that although cost effective for the government, such measures tend to make it easier to detect misrepresentations when applying for a visa to Canada; self-filing daredevils may wish take note of this; perhaps even better, consult me before being labelled by CIC as ‘misrepresenting’ on an application, and being slapped with a two year ban from entering Canada (in some cases effectively an eternal ban from entering Canada).

Call a Toronto Immigration Lawyer for any Canadian immigration issues or concerns you may have – Dial 416-447-6118 now!

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I was born and raised in Toronto, Ontario Canada. I am an accomplished author and lecturer and am consulted by the media and other immigration lawyers and consultants on immigration matters and challenging immigration cases, appeals, and federal court matters.

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Salam Max

MY spouse [xxxxxx] has received her passport back with the immigrant Visa and landing papers and other related doxs. All of the dox are attatched for your references. congratulations and Thanks Thanks Thanks

-Hamid



Hello again Max

I just wanted to thank you again for your exertions yesterday and for all your preparation leading up to the hearing. I felt that I was well represented and that you articulated the issues and the argument for my case very clearly. Look forward to hearing from the judge next. Hope you are feeling better today,

-Anne Marie


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