By Author: Admin | August 24, 2015
Canada’s immigration website allows you to check out some very some basic elements of your application. CIC characterizes this loosely as the ‘status’ of your application: when the application was received and if medicals were completed. No precision on when your application may be finalized is possible. Often all of the cic notes on the file may be as brief as the following:
We received your application for permanent residence on June 18, 2014.
We sent you correspondence acknowledging receipt of your application(s) on August 6, 2014.
We started processing your application on July 31, 2015.
We sent you medical instructions on August 2, 2015. To avoid delays, please provide us the information requested in the letter as soon as possible. Please consider delays in mail delivery before contacting us.
Medicals were received August 20 2015.
An estimate of your sponsorship case’s processing time is available on the cic website, but the published processing time is for 80% of the cases. Your case may not be part of 80% majority if an interview is required, if background checks take longer, of if an officer working on your file is transferred and no officer is replaced in a timely way, among other reasons.
Generally, applications filed online are faster than those that require a physical set of papers to be sent into a CIC office. Presumably, this relates to the ease of manipulating, sending and reviewing application’s uploaded by an applicant or her counsel online.
Some visa offices politely request applicants to keep the status queries regarding the processing of an application to a minimum. Other visa offices convey the message that queries sent before the currently published processing time will be ignored.
As an immigration lawyer, I must balance the eagerness of a client to keep asking about the status of an application against the desire of an immigration officer who can’t reasonably answer too many inquiries about a specific file. Some clients are of the view that repeatedly pestering the visa office will cause the application to proceed more quickly. This is incorrect. However, there is an appropriate time to engage in multiple queries to a visa office about a specific file: usually after the officially published processing time has passed.
Similarly, there are some cases which have are delayed due to a peculiar incident such as a pending criminal charge of which an officer must await a court’s decision. There are other cases which are destined to take an excessive amount of time to process due to a change in the law. Such a change in the law, be it the new criteria for sponsoring parents, or the new criteria for citizenship, often leads to two sets of applications being in the CIC queue: cases under the old law and cases under the subsequently changed law. Inevitably, cases filed under the old law are given less priority and take an excessive amount of time.
By Author: Admin | August 7, 2015
An application for a visa in Canada is subject to published processing times. However, those processing times are not always reflective of an individual’s case processing. Often times, the immigration department’s published processing times speaks to “80% of cases”, thus meaning that there are 20% of cases which are subject to more lengthy processing times.
Self represented people dealing with the immigration department try to have the immigration call centre intervene in an application. Other self represented candidates for a visa might approach a Member of Parliament (if they reside in Canada) to intervene or at least find out the timeframe for the disposition of the application.
I have come across one file where the application was “approved in principle“ subject to minor, administrative requirements such as an updated police and medical check. Nothing was done on the file by the immigration department for more than a couple of years and I was retained to find out what went wrong in the file.
Upon accessing the file notes, I discovered that prior to hiring me, the client expressed concern to the immigration call centre about the delay in processing. The call centre in fact responded to that concern by contacting the appropriate office (CIC Etobicoke), asking that the file be brought forward for further processing. In response, the immigration office did nothing. In fact, the immigration note system indicated that an officer was supposed to work on the file during January 2015. As of June 2015, no officer had commenced any further work on the file.
There is often a kind of “merry-go-round” that extends the processing times potentially into perpetuity. This often consists of requesting documents which have a built-in expiration date such as medical documents and or criminal documents, where the expiration is 12 months and six months respectively. In other words, the officer requests a medical check or criminal check (i.e. a police clearance), and upon receiving it, does no processing on the file. Said third party checks subsequently expire, thus necessitating a request again for the same medical or criminal documentation by the same or different immigration officer.
Another significant cause for delay as if the immigration office has to deal with another third-party. The other third party may include CSIS, or an associated visa post outside of Canada (particularly where a person inside of Canada is seeking a visa for herself, and is also seeking a visa for dependent children who reside outside of Canada). Often times, when there are two immigration officers involved in the processing of one file, there is a failure of both immigration offices to synchronize the work on an application which leads to delays.
In all of the circumstances, when the delay is excessive, the only solution would be to demand that processing be completed within a specific timeframe, and if that demand is not complied with, then seek mandamus at the Federal Court. I’ve had to do this a few times for clients over the years and when all criteria have been met, the response to a Federal Court application by the immigration department is extremely pleasing to the client.
By Author: Admin | July 31, 2015
The Use of Representative form, once completed and received by the immigration department allows a lawyer to interact with the immigration department on your behalf. One key element is how to submit the use of representative form.
In the past, lawyers were instructed to exclusive use the email address email@example.com. Subsequently, at a conference during November 2014, a representative of Canada’s immigration department instructed lawyers to use a specific portal on the CIC website. According to a standard email reply from the immigration department, “Once submitted successfully, your form will be added to your file within 5 to 10 business days.”
A common problem is that the immigration department, despite being stressed for resources, employs apparently many officers to critique and subsequently reject the addition of the use of representative form to a file of a client represented by a lawyer.
This has happened to me for reasons such as the form not being signed recently enough (in the officer’s view a six month elapsing of time apparently made the use of representative form stale dated), which is particularly odd, given that Canada’s immigration department cannot complete a permanent resident application within six months.
What this indicates is that the immigration department is expending a significant amount of resources on people such as officer Ingrid, officer Gionatan, officer Chularath etc., meticulously scrutinize the form not only for completeness, but also, to make judgment calls about the form such as its date of signature. This slavish enthusiasm for rejecting the form has the effect of causing delays and miscommunication, particularly when an immigration officer sends correspondence to an old representative or to the client directly when the client has hired a lawyer to deal with the case.
Similarly, some call centre agents, as a way of blocking disclosure of information, sometimes mention that the required use of representative form is not present in the file (despite the fact that another call centre agent may notice that in fact, the appropriate use of representative form does appear in the file, and thus will freely discuss the matter with the lawyer).
This degree of scrutiny is presumably to protect the privacy of an applicant. However, other government departments tasked with ensuring privacy of information are much more flexible in dealing with the public. For example, officers tasked with an Access to Information Request, typically dispose of such requests via email with a copied (not original)signature on a similarly phrased use of representative form, and routinely disseminate intimate information such as government file notes, often times within 30 days.
The immigration department is different however, as the unwritten mandate for some officers is to act like a bureaucracy in the worst sense of the word: by using forms, procedures and criteria as a means to obviate the need to perform tasks that are being requested by the public.
By Author: Admin | July 24, 2015
Dealing with an untruthful client can be frustrating. As a lawyer, you would put in many hours into your client`s case to ensure he or she will be successful. However, if the client, for any reason, is not disclosing correct information that the lawyer requires, he or she is jeopardizing the desired outcome of a matter.
A worse situation would arise if the client is not forthcoming about his past leading to a finding of misrepresentation. A finding of misrepresentation would put the client into a worse position than before hiring a lawyer.
An example of a case where the client consistently lied to his lawyer is outlined by Ali Akhtar in his article `Don`t Lie to Your Lawyer!` A personal injury client of Mr. Akhtar lied to him about getting head, neck, and hip injuries after a recent accident. Further, said client claimed that it was the first time encountering pain from injuries, and that he had not filed a claim arising from injuries before.
Just as in the immigration context, the effects of such falsehoods jeopardize the chances of deserving people with legitimate claims, be they refugee or other discretionary requests such as staying removal from Canada, or seeking release from immigration detention.
It is important for both the client and the lawyer to know his or her roles in the relationship prior to making agreements with one another. The role of a lawyer is to advise, to negotiate with the opposing party, to draft the appropriate documents, and to advocate. In addition, it is important for the client to have realistic goals about his or her position in the case. The lawyer has a right to withdraw from the case if they see that the case has no chance of success. Such an observation may arise after receiving further government documentation describing the history of a client’s interaction with the immigration department.
The role of the client, on the other hand, is to provide honest information to his or her lawyer because the rate of success of one`s case is dependent on the facts and the law. As well, the client is to tell the lawyer what to do after being given the courses of action available by the lawyer. The lawyer cannot make the decision for the client. The lawyer provides the clients with the various options that may be available. Finally (or firstly), the client needs to pay the lawyer. The client needs to be truthful and tell the lawyer if they are unable to pay the fees prior to signing the agreement. By speaking with the lawyer about the financial difficulties, he or she may provide alternate arrangements to be made if the facts warrant it.
By Author: Admin | July 6, 2015
You’ve applied for a visa. It may be for a study or work visa or for permanent residence. It gets refused. What do you do? If you’ve hired an immigration consultant, they should advise you that you have an option for judicial review at the Federal Court. Some will not and will opt to debate the merits of the refusal. This course of action is risky, particularly if the refusal is based on the officer’s discretion to refuse. Although officers have to be reasonable, the definition of ‘reasonable’ is not in accordance with the colloquial meaning of that word.
The main definition of reasonable is whether the decision “ within the range of reasonable outcomes and the reasoning process was comprehensible, it ought to be upheld despite apparent logical flaws.”
In a case where, for example an officer has considered the evidence filed by a client in relation to something subjective such as a Humanitarian & Compassionate case, debate of a refusal is unlikely to lead to the overturning of said refusal. Similarly, where a client has filed a vague work reference letter and is asserting they have experience in a certain job, an officer is at liberty to refuse the application.
One preferred approach would be to go both to Federal Court and debate the refusal at the same time. Such a ‘two-pronged’ approach was counseled by Mr. Justice Rothstein (As He Then Was) of the Federal Court in the case of Soimu. He indicates that applicants must be prudent to protect their rights to judicial review by proceeding in a timely manner:
[para11] I should observe that the procedural difficulty occasioned in these proceedings might have been avoided if the applicant had sought judicial review of the February 8, 1994 decision in a timely manner
Soimu v. Canada (Secretary of State) Action No. IMM 2551 94 Federal Court of Canada Trial Division Toronto, Ontario Rothstein J. Heard: September 12, 1994, Judgment: September 13, 1994
His Lordship added that the proper approach would be to seek both a review from the visa office, and judicial review at the same time. Some officers either ignore requests to reopen the refusal , or issue a negative reply in a late timeframe, a timeframe that would make the refusal too late to seek judicial review. The time frame for judicial review is 15 or 60 days from the date of the refusal, depending on the location of the officer who rendered the refusal.
If you’ve received a refusal you should be aware of the time limit in which to proceed to federal court and obtain advice from a Toronto Immigration lawyer. Chaudhary Law Office is a firm with a significant amount of success in overturning refusals of visas at the Federal Court.
By Author: Admin | June 29, 2015
For those self-filing their application for a visa to Canada (aka Do It Yourself-ers) , an additional basis to refuse your case may arise: if you fail to declare that you hired someone advise you on the application. The relevant law is in the Immigration and Refugee Protection Regulations at section 10 which state in part:
(c.3) if the applicant has been advised, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the information referred to in paragraphs (c.1) and (c.2) with respect to that person;
(c.4) if the applicant has been advised, for consideration in connection with the application, by an entity — or a person acting on its behalf — referred to in section 91(4) of the Act, include the information referred to in paragraph (c.1) with respect to that entity or person;
Failing to declare that a licensed professional reviewed your application for a fee would, based on the above result in an application that is incomplete. An incomplete application may be returned as unprocessed by the immigration department, resulting in delays or perhaps a failure to qualify (in the event that the criteria changed or a cap was reached upon resubmission).
Even worse, the application may be accepted for processing but then refused and you may be banned from entering Canada for five years on the basis of misrepresentation. I recently came across the following email from a visa officer in Hong Kong:
Furthermore, paragraph 40(1)(a) of the Act states that a permanent resident or a foreign national is inadmissible for misrepresentation 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;
As the information on your file appears to indicate that you have used the services of an unauthorized immigration representative, yet you have not submitted a Use of a Representative form, I have concerns that you have not met the obligation of subsection 16(1) of the Act that you be truthful and provide documents reasonably required, and I also have concerns you may be inadmissible to Canada on grounds of misrepresentation pursuant to paragraph 40(1)(a) of the Act.
In the above case, the person who received this email did, in fact use an unlicensed representative and did not declare that representative’s services. There is some authority for the position that the Regulations do not require unauthorized counsel advising the person to be declared nor those who are only providing interpretive services.
There is nothing wrong of course with getting advice before filing your application. However, to help avoid the problems described above, it would be advisable to indicate in your application that a lawyer has reviewed your application, or said lawyer has given advice on the application that is being submitted. Our office has provided such a reviewing services for a client’s application. We subsequently drafted a certificate stating that the application was reviewed by me and advised the client to include that as part of their application for a visa. This clarifies to the visa officer what role may have been played by an authorized representative.
By Author: Admin | June 18, 2015
For the Express Entry draw of June 12 2015 the minimum points imposed by the Minister of Immigration was 482. Persons who meet this minimum threshold are invited to apply for immigration to Canada, often under the Federal Skilled Worker Program, or the Canada Experience Class. Interestingly, there have been some persons whose profile was lodged as Canada Experience Class and were selected as a Federal Skilled Worker candidate.
Such a difference in selection can be critical since some CEC candidates may not be prepared to submit to those requirements of the FSW that may differ from the CEC. For example, the FSW requires settlement funds an amount of which is dependent on the size of the immediate family of the applicant – two persons require around $17000CAD. CEC does not have a requirement for settlement funds. Similarly the FSW category requires an education credential assessment issued after April 2013 and the CEC does not.
This can lead to paradoxical outcomes. An Express Entry applicant putting her profile up as a CEC candidate may have placed much of her money into a condominium in Canada and thus may not have the funds required under the FSW category. If selected under the FSW, she would have to sell her condominium, bank the equity so show ‘unencumbered’ funds. This potential compromising of such a person’s economic establishment cannot be the intention of Canada’s immigration laws.
Similarly, the person who placed her profile as a CEC candidate, once selected as an FSW would be shocked to learn that an Educational Credential Assessment is mandatory. The shock would set in when realizing that one only has 60 days to submit an application after receiving an Invitation to Apply. Factor in the time to obtain original transcripts from various universities and have them forwarded to one of the various Designated Organizations for an ECA, then await the assessment by said Designated Organization, may very well mean that the invitation to apply would be met by the candidate with an failure to file a complete application.
CIC’s invitation to apply becomes effectively forfeit if you lodge an application that is missing one of the required documents, be it proof of settlement funds, or evidence of an ECA. An application under Canada’s immigration laws is not an application unless the appropriate forms, supporting documents and government fees have been submitted.
Canada Citizenship Laws: Impending Changes to Residency Requirement – How Will This Affect Cases Already in the Queue?
By Author: Admin | June 6, 2015
As of the date I’m writing this (2015-06-06), one of the basic requirements for acquiring Canadian citizenship include physical presence in Canada for three years out of four years prior to submitting an application for citizenship. However the residency requirement will change on June 11 2015. This change was announced yesterday. The residency requirements for Canadian citizenship will substantially change in other ways as well. How will this affect applicants who have applied before June 11 2015?
It is expected that applicants who apply prior to the implementation of this more onerous physical presence requirement will be subject to the three years out of four years rule. However, this would only be a certainty if there are some transitional provisions specifying the status of pending applications for citizenship in relation to the four years out of six years requirement. There is also a requirement to reside for each of the four years for a minimum of 183 days per year, thus barring the ability to apply in a residency pattern where an applicant has spent two non-stop years outside of Canada followed by a four years of nonstop physical presence in Canada.
The implementation of the four years out of six requirement would coincide with the concomitant implementation of more accurate exit controls for Canadians departing from Canada’s Ports of Entry. More accurate exit controls mean that the citizenship department will be able to detect falsehoods regarding residency when applying for Canadian citizenship.
The new citizenship law’s intention to reside in Canada requirement may adversely affect those applicants who applied for Canadian citizenship in the past and whose applications have not yet been disposed of since the passing of the new citizenship law. Specifically, those applicants who met the three years out of four years requirement under the old law and departed Canada after filing an application for citizenship may be determined to not have an intent to reside in Canada and hence may be denied Canadian citizenship.
Such scenarios may include those applicants who are an accompanying spouse of a Canadian citizen abroad. Section 6 of the Canadian Charter of Rights and Freedoms may be the basis to attack the intent to reside section of the new citizenship law, the section of the Charter which allows Canadians free mobility.
There is no information about how the government will implement the intent to reside provisions throughout the process. The new law states that the intent to reside must be continuous up until the applicant is invited to make an oath of citizenship. It is not clear how citizenship officers will judge whether or not the applicant for citizenship has the intention to reside in Canada at the time of applying for Canadian citizenship. A temporary work assignment abroad, or availing oneself of studies abroad or caring for a relative who resides outside of Canada may in fact scuttle an application for citizenship (or possibly lead to the revocation of Canadian citizenship )depending on how broadly the intention to reside is assessed by citizenship officers.
By Author: admin | June 4, 2015
People seeking immigration to Canada under Express Entry (or “EE”) must first lodge a profile with Canada’s immigration department. That profile entails having proof of language ability (e.g. for proof of English ability, an IELTS), and in many cases, proof of equivalency in educational credentials (or educational credential assessment or ECA) if you have gone to school outside of Canada. You must have the IELTS and the ECA results at the time of composing your online profile for EE, and you must faithfully input those results into the EE profile.
There is a CIC website warning stating:
If we find that you misrepresented yourself (gave us false information or left out important details), we will refuse your application. In that case:
- your application could be refused,
- you could be found inadmissible, and
- you could be barred for five years from applying to come to Canada for any reason.
Leaving out important details (or omitting a fact) may, for a particularly prickly immigration officer, may include something innocuous like failing to disclose some aspect of job history, such as a previous job, a more junior position at the same place of employment, etc. At the very least, such an omission may cast doubt about whether or not the work experience you have acquired comports with the National Occupational Classification code you have listed on your EE profile. In this latter situation you may not be ‘misrepped’, but rather simply refused.
Theoretically, misrepresentation may be legally untenable. The issue may be whether there can logically be a finding of misrepresentation in an Express Entry online profile when a profile, in fact, is not an application per se; no fee is taken when uploading an Express Entry profile and no application is deemed to be received by Canada’s immigration department. Rather, the application process starts with the Invitation To Apply (or “ITA”), where the immigration department, based on reviewing the EE profile, invites an applicant to submit a complete application within 60 days.
CIC may take the view that the ITA would not have been issued but for the falsely-based EE profile and, that the EE is effectively a summary of an application that would be lodged after being issued an ITA. However, previous case law has stated that an application is ‘locked-in’ as of the date of an application and required fee have been submitted.
An (old) Immigration Manual from 1999 states:
- PAQ’s are only preliminary assessments. They are not affected by lock-in factors associated with those processes for which processing fees are collected. The resulting assessment is not binding on the applicant or Citizenship and Immigration.
The above excerpt refers to a PAQ or Preliminary Application Questionnaire, a roughly analogous stage of processing to an EE profile (analogous in that there is no fee paid, and there is no promise to process an application by CIC).
This issue may be resolved when the Federal Court disposes of a case where a person placed an EE profile and was given an ITA but was subsequently refused by CIC on the basis of an application that did not cohere in a material way with the EE profile. Nevertheless, as I have written previously in this blog, the advantages of being a test case are meagre; make sure that you are submitting precise and accurate information. Consider hiring an experienced immigration lawyer to help you complete the profile.
By Author: admin | May 19, 2015
I requested the immigration history of a client whose last interaction with Canada’s immigration department dated from around 1990. He wanted me to find out what information the immigration possessed about him as of the year 2015. This is captured in the government notes known as “Field Operations Support System”, or FOSS.
After sending the appropriate request, Canada’s Access to Information and Privacy responded stating they “decommissioned the FOSS system on 13 Dec 2014. CIC says they have “no way of retrieving FOSS”. This has happened with around three other access to information requests I’ve made. The decommissioning was likely due to the immigration department adopting a new record keeping system, the Global Case management System.
I googled the phrase “backup data” and obtained “About 239,000,000 results (0.28 seconds) “. That’s a lot of solutions to backing up data. Even the “seriously dumb yahoo answers” sagaciously mentions: “Personally I always back up Windows and documents saved on the computer to an external hard drive”
I suspect most immigration lawyers have a backup of data on a periodic basis. Indeed, the Canadian Bar Association recommends among other things,
“5. Back up your data.
“If something screws up today, if someone steals the computer today, if it is destroyed in a fire today, you have the information necessary to carry on your practice,” advises Ferguson. “That means backing up daily, taking backup media offsite on a regular basis, and checking that backup data to make sure it’s working.”
In other words, one’s confidence can’t be inspired if the government “has no way of retrieving” a record of someone’s interaction with said government.
As for those clients whose records have vanished, some other possibilities may emerge; some clients may opt to return to Canada after a long absence with a much less complex history for immigration officers to glean. Other clients who are subject to deportation may leverage this absence of information to try to remain in Canada. The concept of the government having a ‘thin file’ is viewed dimly by the Federal Court; the Federal Court sets aside refusals on the basis of the government keeping an inadequate record.
This lack of government accountability is related to a larger trend of decreasing government transparency either on the basis of “culture of secrecy “ of the failure of the government to keep up with technology.