Canada: The Migration Law Review, July 2006

Edited by Guidy Mamann

Contents

The Migration Law Review^™

is a monthly review of current developments in Canadian and American immigration and naturalization law. It is a publication of the lawyers and attorneys at the Toronto law firm of Mamann & Associates P.C. The articles contained herein are intended for lawyers, immigration professionals, community agencies and other consumers of professional immigration services.

For a free subscription of The Migration Law Review™, The Corporate Relocation Quarterly^™ or Guidy Mamann’s weekly immigration column, please visit our website at www.migrationlaw.com.

The Strange Case of Horvath v. Canada
By Ron Poulton, B.Sc., LL.B.

IRPA contains provisions which suspend a refugee hearing once extradition begins in section 105, and which bar a PRRA from being initiated after extradition has started in section 112(2). However, IRPA has no provision suspending the consideration of a PRRA if it has been initiated prior to an extradition proceeding.

Mr. Horvath, a national of Hungary, applied for a PRRA on a date prior to the commencement of extradition proceedings against him. His PRRA application was approved and he was determined to be a protected person. Extradition proceedings then commenced. Arguments were made to the Minister of Justice that to send a protected person to a country which would persecute him would be conduct that would "shock[ed] the conscience" and be in violation of section 7 of the Charter.

The Minister of Justice sought advice from the Minister of Citizenship and Immigration, Monty Solberg. In an extraordinary opinion, Minister Solberg overruled the PRRA officer and decided that Mr. Horvath would not be at risk if extradited to Hungary, ignoring the finding made on the PRRA following an oral hearing when Mr. Horvath gave credible evidence of the anti-Roma sentiments of the police who arrested him and of the judge who was to try him. He had suffered beatings, stabbings and racist taunts. His wife and son were accepted in Canada under the PDRCC program on the basis of the treatment of Mr. Horvath in Hungary. Evidently, Mr. Solberg believed that the very police who had tried to kill him previously, would provide protection to Mr. Horvath in the future.

On the basis of this opinion, the Minister of Justice issued a surrender order, authorizing the extradition to Hungary of Adolf Horvath. The case has been appealed and is presently before the Ontario Court of Appeal.

The over-riding consideration with any entrepreneur work permit application made pursuant to Regulation 205 (a) is convincing an officer that the applicant has a temporary intent upon entering Canada. An applicant can make an application for permanent residence simultaneously with such an application for a work permit. However, the FW Manual clearly states that it is a "rare applicant who could satisfy an officer that their entry into Canada would provide a significant benefit before their eligibility for permanent residence has been assessed."

The Manual also notes, "However, there will be situations where the business or the intended period of work is genuinely temporary, i.e., the applicant intends to leave Canada after starting a business, and either close the business (it being seasonal), or hire a Canadian to operate it." Officers will frequently ask the applicant, ‘why would you come to Canada to set up a business if you do not intend to reside here permanently?’ This is a tender question that applicants might struggle with.

Another issue to consider is that the applicant must show that the proposed business will create a significant benefit to Canada. The entrepreneur must control at least 50% of the business that s/he intends to establish. Section 5.30 of FW1 requires officers to ascertain "Is the work likely to create a viable business that will benefit Canadian workers or provide economic stimulus?" Applicants must also show that the "profits and economic spin-offs generated by the enterprise" will sufficiently reside in the Canadian economy. The applicant must demonstrate that s/he has sufficient capital to fund the business proposal. While some businesses can be started very with a very a modest investment, others require an enormous amount of capital.

Officers must also ask themselves "Does this worker have a particular background of skills that will improve the viability of the business?" This becomes an important consideration in the interview process. The interviewing officer will attempt to ascertain whether the applicant has the business acumen necessary to run a business in Canada. This means a working knowledge of one of Canada’s official languages and a thorough understanding of the Canadian business climate.

The documentation that each applicant submits will vary depending on the type of business and the applicant’s background. Generally, the applicant should provide records of individuals s/he has spoken to in regards to establishing the proposed business in Canada, records of exploratory visits to Canada, financial records, and proof of management ability. This includes a business plan, educational documents, proof of experience, as well as any number of personal references. There is no requirement to show that the applicant has run this type of business before, only that they would have the ability to operate it at this time. For some applicants, key documents to be provided are letters of intent from Canadian businesses. This becomes crucial in occupations such as film editing. Evidence that there are Canadian companies who are not only interested in the applicant’s work, but who cannot find the same skill set in Canada, is very persuasive in such cases.

There are special considerations when an entrepreneur applicant is being considered by a provincial government as a candidate for a provincial nominee program. Applicants should seek a letter from the province where the business is to be established confirming the benefit to be derived from such a business. This will provide the reviewing officer a firm basis for determining that there is a significant benefit to Canada. Under this program, a work permit is to be issued for a two-year period and cannot be renewed. During this period there should be a determination made with respect to the applicant’s provincial nominee program.

On June 1, 2006, USCIS announced that it had received enough applications to meet the FY 2007 H-1B cap as of May 26, 2006. This is record-breaking, indicating that 65,000 H-1B applications were received by USCIS between April 1 and June 1, 2006. The start date for these applications is October 1, 2006.

The H-1B visa is used by skilled workers who are needed by US employers to fill a labour shortage. This cap has been addressed by the recent Senate bill which proposed raising the cap to 115,000. However, the House passed a bill in December, 2005 which contained no such provision.

However, for those individuals who have achieved an "advanced degree", a new quota of H visas became available flowing from the H-1B Visa Reform Act of 2004. The Act allows for an additional 20,000 H-1B visas for foreign workers with a Masters or higher level degree from a U.S. academic institution.

If the foreign worker does not have a Masters or higher degree from a US institution, the applicant may wish to have an academic equivalency assessment conducted with respect to their non-US degree. An evaluation of work experience can be accomplished by:

1. an evaluation from an official who has the authority to grant college level credits
2. a recognized college level equivalency exam
3. an evaluation by a reliable evaluation credential service
4. evidence of certification or registration from a nationally recognized professional association;
5. a determination from the Department of Homeland Security that the requisite education requirement has been reached through an evaluation of the applicant’s work experience. (See Immigration Law Sourcebook Ira J. Kurzban 9^th edition, page 513)

As of July 26, 2006, 19,390 H-1B visas had been given with respect to this category leaving only 610 remaining for FY 2007.

The Federal Court Trial Division applies a tripartite test of serious issue, irreparable harm and balance of convenience in deciding whether or not to grant a stay of removal.

On a challenge to a removal officer’s decision, the "serious issue" test is elevated from demonstrating that the case is not frivolous or vexatious to that of a high probability of success, a standard similar to that used at a hearing for judicial review. The limits to the discretion of a removal officer have been the subject of competing decisions at the Trial Division level with judgments such as Simoes v. MCI stating that the discretion is limited to considering travel related issues, such as flight availability and health issues, to whether a humanitarian application has been filed in a timely manner and has been outstanding for a considerable period.

In other cases such as Harry v. Canada (Minister of Citizenship and Immigration)[2000] F.C.J. No. 1727 and Paterson v. Canada (Minister of Citizenship and Immigration)[2000] F.C.J. No. 139, the Court adopted a broader interpretation of this discretion, to include a requirement that the best interests of any affected children be considered. As these cases were all interlocutory decisions, their precedential value is limited.Last year, the Court released a decision on a judicial review application on the limits of the discretion of a removal officer. The case, Ramada v. Canada [2005] FCJ No. 1384, issued on August 18, 2005, is highly significant because it is a decision rendered on judicial review and as such is of higher precedential value than decisions rendered on motions. In addition, the Court adopts a broader perspective on the discretion of a removal officer. While recognizing that removal officers have limited discretion to delay removal, the Court noted that officers can consider whether there are good reasons to delay removal. Good reasons may include the person’s inability to travel owing to illness, the need to accommodate other commitments such as school or family obligations, or compelling humanitarian and compassionate circumstances. The Court then added the following to the list of a removal officer’s duties;

"..an officer must consider whether exigent personal circumstances, particularly those involving children, justify delay."

In Ramada the Court quashed the decision of the officer because she failed to consider relevant evidence on the best interests of the children which had been put before her in the request for deferral.

With the issuance of the decision in Ramada, the limits of the discretion of a removal officer set forth by the Court in Simoes on an interlocutory motion have now been surpassed. The question of whether the best interests of children must be considered by removal officers has been answered. Clearly, they must.

The Ramada decision has been applied by a different Federal Court judge on a stay motion in Mateka v. Canada (Minister of Public Safety and Emergency Preparedness) [2005] IMM-7291-05.

Does a person who voluntarily relinquishes their permanent status in writing actually lose such status?

This question recently arose in the case of a permanent resident who was required to surrender permanent residency status in Canada in order to accept an offer of employment. This individual was in full compliance with his residency obligations and was not otherwise reportable under IRPA. When he approached CIC, he was presented with Form IMM5539B "Declaration: Relinquishment of Permanent Resident Status/Residency Obligation Met" which he duly signed.

Section 46 of IRPA specifies only four conditions under which a permanent resident loses such status. The section allows for the loss of permanent residence upon the acquisition of Canadian citizenship; a final determination made outside of Canada regarding the failure to meet the residency obligation; the coming into force of a removal order; and upon a final determination vacating a decision allowing a refugee claim or allowing an application for protection.

While section 9 of the Citizenship Act provides five conditions which must be met for the relinquishment of Canadian citizenship there is no similar provision found in IRPA for the relinquishment of permanent resident status.

Paragraph 7.10 of ENF 23 sets out the department’s policy in these situations but offers no underlying statutory authority for the procedure. The argument that "the intent to abandon status" must be given effect seems unconvincing when considering that the notion of "intention" which was central to the question of loss of permanent residency status in the former Act was completely dropped in IRPA.

Nonetheless, the IRB-AD reached a different conclusion when it considered the effect of the execution of the declaration in question in Hozayen v MCI, [2004] IADD No. 933. The Board found that there is "no legal impediment to the capacity to relinquish one's status as one obtains this status through an application in the first place. The Act does not limit an individual's freedom to act on his own behalf…"

This reasoning does not appear to have yet been endorsed by the Federal Court and so the legal validity of such declarations remains open to debate. While there is good reason to hold that there is no statutory basis for this procedure, such a conclusion would make it impossible for permanent residents who have good reason to shed their status, to do so.

One of the realities of practicing immigration law in Canada is that the quality of advocacy varies greatly both within the immigration bar as well as among immigration consultants. Occasionally, when assuming carriage of an immigration matter where prior counsel was involved a matter of counsel competence arises. Incompetence of counsel may give rise to a breach of natural justice in appropriate circumstances [Shirwa v. Canada (Minister of Citizenship and Immigration), [1994] 2 F.C. 51 (T.D.) and Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.)].

In the past, the Court took a caveat emptor approach to clients who chose to hire an immigration consultant given that consultants were not subject to any professional standards, had no code of professional conduct, and was not subject to a disciplinary mechanism. The Court’s logic was that providing relief to people whose cases had been prejudiced by the negligence or incompetence of their representative would have the effect of subsidizing consultants in their competition with the bar. [Robles v. MCI (2003) FCT 374, 2 Admin. L.R. (4th) 315, Cove v. MCI 2001 FCT 266, [2001] F.C.J. No. 482]

This situation has changed with the creation of the Canadian Society of Immigration Consultants ("CSIC") and the imposition of a code of professional conduct. It is now easier to substantiate a claim that a consultant behaved incompetently where they breached their own standards of professional conduct. It also answers the Federal Court’s opinion that if a person who chooses to hire an unregulated representative they must accept whatever quality of service they receive. It is necessary to file a complaint with the Discipline Manager of CSIC whenever an allegation of incompetence is being asserted in court against a consultant.

The existence of a code of professional conduct raises the standard expected of regulated consultants which makes them more susceptible to an allegation of incompetence.