Do It Yourself Immigration – The Risks

By Author: wp-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).

2015-06-29 checklist

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.

 

 

 

An Invitation to Apply -What Did You Sign Up For?

By Author: wp-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.imgres

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: wp-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.

Express Entry Profile: You have Been Warned about Misrepresentation

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.

IMMIGRATION CANADA’S INCREDIBLE SHRINKING DATA

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).

As all nerds are aware, a profound change in computer hardware or software must be accompanied by a backup prior to making such a change.

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.

Use of Representative Form (IMM 5476)

By Author: admin | May 5, 2015

The above forms as of March 2014 states, You do not need to hire an immigration representative. It is your choice. No one can guarantee the approval of your application. All the forms and information that you need to apply are available free at www.cic.gc.ca. This is an example of intentional obfuscation: providing a form (the IMM 5476) that exists only to allow a lawyer to represent you, and simultaneously undermine the purpose of the form by stating, (almost akin to a last ditch effort) that you do not need a lawyer. And while it is technically true that a lawyer is not required, often times individuals choose to hire a competent professional to eliminate the possibility of errors that can lead to a refusal, or, for more obtuse and esotericapplications, provide the submission that is less-than-explicitly required by CIC.

The Use of Representative form indicates that you may only have one representative at a time and that if you appoint a new one, the previous representative will not longer be recognized by CIC as having a relationship to your file.

Conveying the signed Use of Representative form to CIC is often a frustrating ordeal for your putative Representative. There is a dedicated CIC email address to which a completed Use of Representative form is sent. However, it takes 10 (!) business days for the Use of Representative to be matched to a visa application. This assumes that the lawyer is able to get the form past a CIC agent seemingly tasked to deflect the Use of Representative away from the officer assigned to a client’s file.

CIC call centre agents apparently have a mandate to deflect a Use of Representative form for among other things, failing to indicate the “type of application” or “location of office” (contained in question three of the imm 5476). One pedantic call centre person I spoke to mentioned that this is required because a person may have more than one representative – despite the fact that the form itself says it is not possible to have more than one representative.

Similarly, the ‘location of office’ is often, over the life of an application, more than one location. For example, a sponsorship file may move from Mississauga to an immigration office in Canada, or to a visa office abroad. Further, some applications submitted online are at locations in which the lawyer may not be apprised of when uploading said online application.

The delay by CIC call centre agents in conveying the Use of Representative form to the officer dealing with the file often causes prejudice to said lawyer’s client. This may occur, for example, where a request for information is sent to a client rather than to the client’s lawyer leading to the missing of a deadline in which to submit said information. The Federal Court has repeatedly stated that this is a denial of procedural fairness and an error; CIC may not legally dismiss a representative for bureaucratic minutia. Still, it can be frustrating for me and the client to have to threaten legal action to reopen the file.

I often have to remind myself, through gritted teeth, that call centre agents are not officers. They are so placed so that officers do not have to speak to the public and so they can devote their time to administering the Act rather than providing advice. Most officers are very happy to communicate directly with counsel as they do not have to worry that their instructions are not sufficiently laic and thus do not have to devote time to explaining or repeating instructions.

All the above being said, there is a persistent view among the self-filing community that call centre agents are a substitute for counsel, and that if you are having a problem or if you have a question, you can call them and they will be happy to help. Although most call centre agents do not lack for enthusiasm, this view is completely wrong. As a colleague once remarked on reddit (http://www.reddit.com/r/ImmigrationCanada/comments/2k9r82/to_be_clear_you_do_not_require_a/clv2rd4): “There are people in jail, or who have been removed from Canada, based on relying on flatly-wrong Call Centre advice.” If a lawyer is wrong about the advice he or she gives you, that lawyer may be subject to disciplinary action if they are wrong and you are harmed. Call centre agents have no such responsibility.

Interrupted Studies in Canada – Will a 3 Year Post Graduation Work Permit be issued?

By Author: admin | April 24, 2015

An application for a Post-graduation work permit of three years duration is available to those foreign nationals who study at an appropriate school in a program of at least two years duration. One question that arises is whether the duration of the minimum two years of study can be interrupted. Such an interruption may occur if a person studies for perhaps one year, leaves Canada due to an emergency and returns after more than one semester to study at a different course.

The policy in the above scenario is not helpful. Said policy requires full time studies in Canada ‘continuously’. The only exception to the requirement to continuously study is when a person is in her final semester of studies and has met the requirements to graduate in the studies pursued.

The only other exception to study permit holder having a gap in studies and being eligible for a Post Graduation Work permit is where a study permit holder obtained a one-year graduate degree or diploma from an appropriate school in Canada. If two years prior to obtaining said one-year graduate level degree or diploma, the student had obtained a degree or diploma within the past two years, then a three year post graduation work permit may be possible.

Restoration within 90 days of losing a study permit is possible if the person holding the lapsed study permit continued to meet the requirements under which the person was allowed to enter and stay in Canada, as well as meeting all the conditions imposed on the study permit.

Immigration Regulations amended June 1 2014 reinforce the requirement to be “actively pursuing” studies while in Canada and while possessing a study permit. Thus the possibility of losing a study permit is possible if an immigration officer discovers that a student has not registered or attended classes for extended periods of time, or arguably, has failed to acquire a passing grade in a certain number of courses. Such a lack of attendance and/or failure to pass has been associated with study permit holders who are not genuine students, but rather, persons who used a study permit as a way to work in Canada illegally.

If you’ve acquired a gap in studies it’s a good idea to get legal advice about whether the gap may make you ineligible to either renew your study visa, or to obtain a Post Graduation Study Permit.

Work Experience – The Cornerstone Of Canada’s Express Entry System

By Author: admin | April 14, 2015

When putting up a profile on the Express Entry system, you must possess at least one year of work experience.  At this early stage of uploading a profile, you don’t need a work reference letter.  Once you’ve been issued an Invitation To Apply, you must follow through with proof of what you said in your initially submitted profile.

Such proof includes third party documents such as police checks and equally important work reference letters.  Such letters are ostensibly authored by your employer.  Express Entry promises a six month processing time once you’ve been issued an Invitation to Apply.  Obtaining permanent residence after receiving an ITA is not a ‘sure thing’; you must back up what you’ve said in your initial EE profile and the failure to do so will result in a finding of misrepresentation and a consequent five year ban.

Post Graduate Work Permit Holders often have a three year work permit.  In that three years they must acquire one year of full time work experience at a suitably skilled level, at a job usually requiring post secondary education.   Similarly, Federal Skilled Worker candidates availing themselves of the EE system have to possess at least one year of paid full time work experience.

Canada’s immigration department has very specific guidelines as to what constitutes a proper work reference letter .  Such a letter must stipulate facts such as whether the job performed was full time or part time, amount of remuneration (and benefits, if any), start and if applicable, end date of employment,positions held and duration of time at each job position, but most importantly, the main duties performed.

This latter point has been the source of countless federal court cases; if your duties are listed with inadequate detail, you have failed to prove the minimum one year work experience required under EE; if your duties too closely match the National Occupational Classification, then then you fail; if your letterhead appears ‘smudged’, your letter may be ‘inadequate’ and you fail.  If you send an updated letter from your employer and the logo or letterhead differs, you fail; if the quality of the paper you employer prints the letter on is poor, you fail.

 

Officers try to fail you on work experience by stating the letter is not fraudulent, but merely inadequate.  If the work reference letter is in adequate, then an officer need not accord you procedural fairness; in other words, the officer can summarily refuse your application without giving you a chance to submit an improved work reference letter.

It is no doubt a challenge to acquire skilled work experience in Canada after graduating.  I suppose the immigration department’s view is that you get three years to acquire that one year of paid experience.  Indeed, other countries such as the UK or USA or Australia have no such pathway to permanent residence via studying in Canada; foreign students in those countries have to return to their home country after paying hefty student tuition fees.

Adding a Common Law Partner to an Existing Application

By Author: admin | April 9, 2015

If you have an application for a visa to Canada, being permanent resident, or a temporary visa, you may have changed your life in a significant way.  Some life changes must actually be reported to Canada’s immigration department if your application is still pending.

One such change is if you’ve become a common law partner while your visa application is in progress.  In other words if you’ve been in a relationship of  exclusivity with a high degree of commitment for more than one year, you may have to declare the relationship to the immigration department or be at risk of misrepresenting yourself before a Canadian visa officer.

Most couples know when they’ve entered a common law relationship, but perhaps not down to the exact day.  Such couples may have started as roommates but gradually, started to share household chores and pay for expenses for each other.  They may have also presented themselves to their peers and relatives as an exclusive couple.

When the common law relationship has been in place for more than one year, it should be declared in the context of a pending visa application.  Such a declaration, however, may have certain consequences to an already filed application.  For example, adding a common-law partner to a Canada Experience Class application or to a Federal Skilled Worker application may add more processing time.  The additional processing time would arise from the inevitable medical and background checks for the added common law partner.    In less clear cases, an officer may have to spend additional time making a determination of whether, in fact, the person being added is a common law partner.

Such an analysis would entail a review of evidence showing that the couple do, in fact, share a life together, in a substantive way.  There may be evidence of the origin of the relationship, its evolution from acquaintance to friendship to exclusivity, the sharing a large and/or long term financial burden, testimonials from relatives and friends, etc.

From an immigration officer standpoint, it is preferable for an applicant to simply get married, as the amount of scrutiny of officer may have to exercise would be less than assessing evidence of a common law relationship.   The reasons for maintaining  a common law relationship  as opposed to getting married may relate to cultural impositions. For example, if a couple from a less culturally evolved country has yet to tell their parents of the exclusivity of the relationship, they may opt to maintain the common law status until they have proven to each other’s’ respective parents that they are compatible as a couple.

If an officer deems that inadequate evidence has been given to prove the relationship is not a common law one, then the excluded putative dependent partner would be excluded from the application and would not get the benefits of said application, be it permanent residency, or in other cases, an open work permit.

The issue may be more material in Federal Skilled Worker applications where a dependent spouse’s education may yield additional points to the main applicant.  In such cases, if evidence of a weak common law (or indeed, a weak marriage) was put forward, the main applicant could be refused and barred for materially  misrepresenting a fact to an officer; the penalty for such misrepresentation would be  five years of inadmissibility to Canada.

In such circumstances, advice from a Toronto Immigration Lawyer would be prudent prior to making an application to Canada’s Immigration Department.

Removals as Soon As Possible – Fair and Efficient?

By Author: admin | April 1, 2015

The current government is preoccupied with streamlining processes and reducing backlongs.  One backlog relates to removing persons who have been ordered deported.  Attempts at making it easier to remove person have involved changing a phrase in one part of Canada’s immigration laws; the change is from the phrase ‘as soon as practicable’ to  ‘as soon as possible’. 

The Immigration Refugee Protection Act at s.48 states

Enforceable removal order

  • 48. (1) A removal order is enforceable if it has come into force and is not stayed.
  • Effect

(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible.[Emphasis Added]

 

The use of the phrase “as soon as possible” constitutes  a change from the 2012 version of the Immigration Refugee Protection Act  which stated that an enforcement order must be enforced ‘as soon as practicable’.

What’s the difference?   The difference is that ‘as soon as possible’ puts pressure on the Canada Border Services Agency to give a priority to removals of those possessing removal orders over and above the other activities of the CBSA.    This also creates an expectation by the public that the CBSA will remove  in a timely way, persons who have received deportation orders.

You may wonder, who amongst the public may want the CBSA to give effect to a removal “as soon as possible”?   One case may include spousal sponsors of often male foreign spouses who land in Canada and commit spousal abuse against the sponsor.  A sponsor whose abusive sponsored husband is reported to the police and the CBSA should under the current law expect that abusive husband to be removed “as soon as possible”.  This is particularly so since the sponsor is financially responsible for the abusive husband for three years.  A lackadaisical CBSA would legitimately be the target of a law suit by the abused sponsor to recover any social assistance that may be taken by the abusive applicant.

To shirk their duty, the CBSA has recently tried to ‘turn the clock back’ on a removal  of a war criminal by asking the appropriate tribunal to issue a second ,redundant, removal order.  In that case, said tribunal asked the CBSA, why the government was seeking another deportation order when one has already been issued“.   Said tribunal also asked “why Mr. Rogan [the person with the removal order] is still in Canada and why the minister is seeking this proceeding…”

Department of Justice lawyers have, when opposing a request to stay a removal order interpreted ‘as soon as possible’ to mean that a CBSA removal order may only be stayed by the Federal Court.  One judge took issue with that interpretation and was of the view that the Officer using said section to deny a deferral of removal “…had no feelings at all!”

 

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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

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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,

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