Jason Kenney thinks that if you can buy beer in BC, you are not a dependent child and thus, starting on August 1, you won't be able to be sponsored by your parents or accompany them to Canada on their immigration application. In the past, unmarried children under 22 could be sponsored to Canada by their parents or could accompany their parents (sponsored by their child in Canada). The definition of 'dependent child' included one that was older than 22 if he or she maintained full time accredited studies.
Keeping a family together is hard as it is, this government, under the guidance of Jason Kenney (and Chris Alexander), just made it harder. Immigrants may be ok with not being able to bring their parents or grandparents to Canada; not sure if they're ok with leaving a 19 year old daughter behind who is studying and hoping that she will be able to find her own way to Canada. The change in policy thus reflects a cultural insensitivity.
It's extremely important to understand the concept of a 'lock-in' date. This site attempts to clarify that concept.
This continues the theme of immigrants as integers: someone has obviously parsed the economic outcomes of <19 years and >19 years.
The Conservative government is continuing it's short arms, deep pockets approach to immigrants and newcomers to Canada.
Citizens or permanent residents of Canada that live here for ten years have access to the Guaranteed Income Supplement, the Spousal Allowance and the Survivor Allowance. Parents and grandparents that are sponsored to Canada, however, will, after passage of Bill C-31, not be able to access these benefits until 20 years pass after their arrival in Canada.
Jason Kenney pointed to an increase in sponsored seniors utilizing social services after the ten year mark as justification for a doubling of the sponsorship period. A Globe and Mail article discussed his rationale here. Interestingly, according to Kenney, the number one source for parents/grandparents sponsored to Canada is the Punjab region of India.
In my opinion, the Bill does not adequately account for unanticipated and unexpected changes. What happens if the sponsor is unemployed or underemployed or suffers a traumatic injury or serious illness and the sponsored person descends into poverty? There are limited exceptions, including if the sponsor dies, goes into bankruptcy, is in jail or his convicted of an offence against the sponsored person.
An important component of Canada's social safety net is about to be eliminated by this government and the consequences will be borne by some of the most vulnerable in our society, elderly immigrants.
Bjorna graduated with a J.D. from the University of Calgary in May 2014. Prior to that, she earned a Bachelor of Arts degree in Law and Society with distinction from the University of Calgary.
Before joining Stewart Sharma Harsanyi, Calgary's largest dedicated immigration firm, as an articling student, Bjorna completed a clerkship at the Provincial Court of Alberta where she rotated through the Criminal, Civil and Family and Youth Divisions. During her undergraduate studies, Bjorna interned for Stewart & McCullough, gaining an invaluable introduction to criminal law.
While in law school Bjorna was involved with Student Legal Assistance and Pro Bono Students Canada. Prior to that Bjorna volunteered at the Calgary Police Interpretive Center.
She is fluent in Albanian.
I don't think the cheque will be in the mail anytime soon.
Ontario will be sending an invoice for $2,000,000.00 for refugee health costs to Ottawa. This is the cost of providing basic medical services for refugees in that province.
Ontario is sending Ottawa the bill for the $2 million the province will spend this year on basic medical services for refugees, says Health Minister Eric Hoskins.
Bolstered by a Federal Court decision earlier this month that said Prime Minister Stephen Harper’s cuts to coverage were “cruel and unusual,” the province is stepping up its fight with the federal government.
“We have a responsibility to care for all those that reside here — particularly those that are the most vulnerable,” Hoskins said Wednesday at the Crossroads Clinic at Women’s College Hospital, which serves about 1,200 refugee patients a year.
“This isn’t about better care for our refugees, this is about the most basic services,” he said, noting pregnant claimants have suffered because of Ottawa’s move two years ago to slash medical benefits for newcomers.
“I call on Stephen Harper and (Immigration Minister) Chris Alexander to do the right thing and they can also expect to receive the bill from us with a ‘past due date’ for the additional funding Ontario has invested.”
I guess the ball is now in the Federal Government's court. Should they refuse to fund the province, there may well be a basis for a law suit. Will we see litigation between a province and the Federal Government over this policy that has already been deemed to violate the Charter by a Court?
Andy Hayher and I have been co-hosting a weekly radio show on RedFM 106.7 for over a year (Fridays, MST 7-8 PM). Prior to this, we discussed legal issues affecting the South Asian diaspora on Fairchild Radio on 94.7 on Tuesdays. The reason that we started this program (and its predecessor) was the fact that the legal system is exclusionary in many respects. Even those born and raised in Canada have issues accessing justice and navigating the legal system's language and paperwork. New Canadians have a difficult time, not just because Canada's justice system may be quite different than the one they left behind.
There are at least 80,000 South Asians in Calgary, with at least 20,000 that speak Punjabi.
We've covered a wide variety of topics this past year, from Human Rights Issues in Punjab, India from 1984-1995; the centennial of the Komagata Maru; immigration changes and family law.
You can play or download a recent audio file for one of our shows.
The following is a summary of the Federal Skilled Trades Program.
The Federal Skilled Trades Program is for people who want to become permanent residents based on being qualified in a skilled trade.
There will be a 5,000 limit to the applications that are accepted. Within the 5,000 cap, no more than 100 new applications for each job will be considered for processing.
The following outlines the jobs accepted under this program:
Also, look at the following for job descriptions outlined in the National Occupation Classification (NOC):
To apply, you must:
You may take any of these two approved language tests:
CELPIP has three tests. You must take the “CELPIP-General 2014” test to support your immigration application.
IELTS has two options for the reading and writing tests: “General Training” and “Academic.” You must take the “General Training” option.
NOTE the following:
Full-time work” means at least 30 hours of work over a period of one week, or an equal amount in part-time, paid work experience. For example:
Up to two employers can commit to employing you for at least one year of continuous full-time work, meaning at least 30 hours of work over a period of one week.
In Canada, only the provinces and territories can issue certificates of qualification in the skilled trades. To get this certificate, the provincial or territorial trades authority must assess your training, trade experience and skills to decide if you are eligible to write an exam to be certified.
Each website has more details about whether you need a certificate of qualification to work there in a specific skilled trade, and what you have to do to get one.
Look at following for Alberta:
You are inadmissible to apply under this program if:
What do you do when your application as a Federal Skilled Worker is rejected?
Ram Sankaran from our office attended before Justice Rennie of the Federal Court earlier this week to argue that a decision by an immigration officer refusing our client's application for permanent residence under the Canadian Experience Class was unreasonable.
Our client originally came to CAnada in 2002 to study English. He graduated with a Bachelor's degree from a University here and received his post graduate work permit. He started work with a large company and started duties commensurate with NOC6211, Retail Sales Supervisor and worked in that capacity for more than a year. He applied for permanent residence under the CEC and provided documentation as to his job duties and information from his employer.
A Case Officer from the Case Processing Pilot in Ottawa refused the application. In his/her reasons, the officer took issue with the "verbs" utilized in the job experience letter.
The relevant regulation is 87.1(2)(c) of the IRPR. The evidence indicated that our client performed four of the eight listed duties for NOC6211 (the Regulation calls for the foreign nationals to perform "a substantial number of the main duties of the occupation as set out in the occupational descriptions" of the NOC" including all of the essential duties).
There are no essential duties for this occupation and the NOC itself indicated that a Retail Sales Supervisor may perform some or all of the listed duties.
Another case that is of assistance is Benoit v. Canada (MCI)  FCJ NO. 214. Justice Zinn set aside the officer's reasoning in that decision, finding:
[...] The Regulations clearly require that only a 'substantial' number of the duties be performed. That is the test. The officer in this case singled out only parts of two of the eight main duties from NOC 6211 and on that basis concluded that Ms. Benoit's experience at the Granite Club did not qualify. While I cannot positively conclude that there was 'substantial' overlap between Ms. Benoit's experience at the Granite Club and NOC 6211 - that assessment must be done by the officer - I am satisfied that her responsibilities at the Granite Club were far from being such a total mismatch that her application for permanent residence has no chance of success. Indeed, at a glance the duties are a substantial match."
We are awaiting the decision of Justice Rennie and look forward to a positive resolution of our client's status in Canada.
It's harder than you think to buy a Canadian passport.
We often receive queries from high net worth clients seeking advice and guidance on how to come to Canada under an "investor" categories. While federal investor categories have been closed or are practically useless, various provinces have retained Investor/Business Owner categories in order to stimulate business investment and create jobs in their provinces. Our experiences with these categories indicate the following:
1. Applicants should try to come to Canada and attend provincial business forums specially designed for prospective Applicants under this category. The business visit will not only increase the prospects for success, but also ensure that Applicants are fully aware of the relevant provinces business environment and opportunities;
2. Almost all of these categories for nomination require business experience and/or proof of net worth. Proof of net worth is usually by far the more challenging criteria to meet. Applicants should be encouraged to ensure that if they are claiming non cash assets or real property that these assets are appraised by certified appraisers. Audited financial statements for businesses should be unequivocal and be provided for at least a 24 month period.
3. The provinces will usually require net worth to be verified by one of the major accounting firms in Canada. As such, it is important that Applicants be prepared to provide and continue to provide documentation evidencing net worth to these accounting firms and continue to do so on an ongoing basis and as requested. The nomination will not be approved until the accounting firm verifies net worth.
While the above "tips" indicate that these types of applications may be high on paperwork and take some time to process, if you are serious about trying to immigrate under one of these programs adhering to these principles will ultimately reduce your processing time and increase your chances for success.
Ah, Justice Campbell, a perennial thorn in the side of Government lawyers and a sight for sore eyes for Applicants seeking empathetic justice.
Lin v. Canada (MCI) 2011 FC 316 is a helpful case for Applicants to the Federal Court. Lin was a citizen of the PRC that had asked for relief after his refugee claim was dismissed. As Justice Campbell notes in his decision, establishment is a "critically important H&C issue". In Lin's case, seven years passed between the application and the decision. In those seven years, Lin had become firmly established in Canada. The H&C officer however, dismissed Lin's establishment in Canada because she had "knowledge that she did not have the legal status to remain" and "has chosen to remain in Canada at her own risk".
Justice Campbell however, found that "the question of the Applicant's status in Canada is the result of a shared responsibility between the Applicant and the Respondent". The Applicant "has an obligation to regularize her status" and "the Respondent has an obligation to reasonably respond to her attempts to do so." The Respondent's failure to render a decision in the time period was unreasonable and "of course" the Applicant got on with her life and put down roots in Canada. This fact was to be acknowledged and carefully analysed, "with some respect".
"Equity varies with the length of the Chancellor's foot" - John Selden
I will be appearing before Justice Rennie tomorrow morning on a judicial review application for a failed humanitarian and compassionate application. I am reviewing the relevant case law and present my thoughts on Diabate v. Canada (MCI) 2013 FC 129 which involved similar (flawed) analysis to my case. In Diabate the immigration officer had refused the H&C application of Mahamoudou Sama Diabate, a national of Ivory Coast. Justice Gleason of the Federal Court found that the officer committed a reviewable error and sent the decision back for redetermination by a different officer.
Briefly the facts:
Diabate left his country in 1986 and found his way to Canada in 1993. He sought to remain by making a refugee claim (under a false identity); the claim was refused. He got married and sponsored but the sponsorship was refused and the couple separated (quite quickly it appears). He was ordered to appear for removal but never showed up, making his way to the US where he stayed for 6 years without status. He returned to Canada in 2005 and applied to remain on humanitarian and compassionate grounds.
The Court left open the possibility that the appropriate standard is correctness to an officer's interpretation of s.25 of the IRPA, noting that it sits uncomfortably with recent SCC jurisprudence. The Officer's finding that the length of stay in Canada did not warrant a finding that H&C discretion was warranted was upheld by the Court; however, the Court set aside the decision because the Officer applied an incorrect analysis of s.25 of the Act.
Diabate didn't approach the Court with clean hands. We know that the Federal Court could have dismissed his application merely on this basis. His immigration history raises a lot of questions. He made a refugee claim under a false identity (Strike 1). The marriage, it's rejection and it's disintegration all within a year or so (Strike 2). His failure to report for removal, his likely illegal entry to the US (would be highly unusual for him to have a visa given the circumstances) and his likely illegal return (returning without authorization is a criminal offence under IRPA) (Strike 3 or 4?).
In any event, the case turned on the following reasoning by the Officer:
"Although there are still some problems in Ivory Coast, I note that they apply to the entire population. The applicant has not shown in what respect his situation is different from that of the population as a whole."
Justice Gleason found that this formulation of the applicable test was neither "correct nor reasonable". Such an interpretation "frustrates its purpose". The officer "imported a requirement of section 97 - that, to be eligible for protection, an individual must face a risk "not faced generally by other individuals in or from that country" - into her s.25 analysis. Such an interpretation strips section 25 of its function."
Justice Mandamin set aside a similarly worded rejection by an immigration officer in Shah v. MCI 2011 FC 1269. The officer found H&C consideration was not warranted because "the situation and hardship the applicant fears is faced generally by other individuals in the country". Justice Mandamin found that the officer thereby "applied a higher standard than appropriate for H&C decisions by incorrectly requiring the Applicant to establish a personal risk beyond that faced by other individuals in Trinidad...the Officer failed to properly consider whether the overall problem of criminality constituted unusual and undeserved, or disproportionate hardship in the circumstances..." [paragraph 73].
Justice Phelan also set aside a decision that seemed to be preoccupied with language ("personalized risk") found in ss.96 and 97 ... "An H&C determination is not conducted in the same manner as a s.97 analysis" (Morales Esparza v. Canada (MCI) 2013 FC 650).
In Caliskan v. MCI 2012 FC 1190, Justice Hughes cautioned against reliance on the terms of art contained in ss.96 and 97, writing that "...the true answer to the interpretation of the amended provisions of section 25...lies in drawing back from the constraints of lingo such as "personalized" or "generalized" and focusing on the intent of that provision [paragraph 19] ... Included within the broader exercise in considering such hardship is consideration of "adverse country conditions that have a direct negative impact on the applicant".
With all that being said, it is important that applicants for H&C consideration do not merely set out a number of objective country condition facts without showing how these conditions would cause them hardship. Justice O'Keefe in Vuktilaj v. MCI 2014 FC 188 noted "...the applicants must show either that it will probably affect them or, at the very least, that living in conditions where it could happen to them is itself an unusual and undeserved or disproportionate hardship." [paragraph 36].
The Conservative Government is now 0-9 before the Courts of this country.
The Federal Court has set aside the Conservative Government's Refugee health cuts in a strongly worded decision by the Honourable Madam Justice Mactavish. Running 268 pages, the decision finds the Orders in Council inconsistent with sections 12 and 15 of the Canadian Charter of Rights and Freedoms and of no force and effect.
Highlights from the decision (paragraph 1076-1082):
I have a great deal of pride in the "activist immigration lawyers" (a terms used as a pejorative by current Minister Chris Alexander, but a honorific in my view) and other advocates for refugees that challenged the mean spirited and narrow minded excesses of the Canadian government.
This year will likely be the last cohort of the venerable Federal Skilled Worker Class.
This information is current as of July 2014; note that significant changes are coming in January 2015.
Essentially the minimum program criteria for immigrating to Canada as a "Federal Skilled Worker" is the following:
Work experience 1 year (in last ten) of continuous, paid, full-time in a single skilled occupation corresponding to one of the 50 enumerated on the CIC website.
Language proficiency - a minimum of CLB 7 (we generally see the IELTS General Option at this office).
Education - either a Canadian educational credential or a foreign educational credential equivalent to a completed Canadian credential.
This is merely the minimum criteria. After meeting the above, the candidate is assessed on a selection grid assessing language (to a maximum of 28 points), education, work experience, age, arranged employment and adaptability.