Loss of Permanent Residency for Refugees: Myth or Fact?

Since 2011 when Bill C-31 was created with the goal of modifying the laws of refugees in Canada, there have been a lot of questions regarding the loss of the Canadian permanent residency for people that immigrated to Canada as refugee claimants.

The Law, in the section of protection for refugees, since many years back has had the opportunity to take away the permanent residency to people that do not require the protection of Canada any longer. Bill C-31 only confirms this section and to inform that now more than ever, people need to know that the Canadian government has this option.

“Re-availment” is defined as the voluntary surrender of the protection of their country of origin. If is understandable that a person has subdued to the protection of their country of origin after having lost and obtained Canada’s protection, obtain their passport and return to their country of origin; or when the conditions of the country of origin have changed and now you can obtain the protection that was not available before.

Returning to a country of origin is the most discussed topic in Canadian courts and lately there has been talks about even passport request to respective governments being an issue for quitting permanent residency, this last thing does not necessarily has to be this way and it can be prevented by obtaining a travel document that is offered by the government of Canada, and in this way, it is not necessary for the applicant to have a passport of their nationality. In this sense, the court has defined the following:

“In Chandrakumar, the Court held that Board erred in drawing the inference that the applicant re-availed himself of his country’s protection from the mere fact that he renewed his passport. More evidence was required, particularly concerning the claimant’s motivations in renewing his passport, namely whether his intention was to re-avail himself of Sri Lanka’s protection.”

It is important to know that the fact of obtaining a passport from your country of origin and physically returning (both things) can result in a proceeding of ceasing your permanent residency. In Chandrakumar, the Court determined that the mere fact of obtaining a passport is not the only factor to consider to determine if a person has solicited the protection of their country of origin.

Unfortunately, there are no special permits of force majeure, whether it be ill family members, among others. However, considering particular circumstances of each case is up to the immigration officers and judges at the beginning of the revocation of permanent residency process.

“In Caballero, where the claimant testified that he went back to Honduras intending to stay a year in order to sell his land, the Court agreed with the Refugee Division that his behavior was inconsistent with a well-founded fear of persecution.”

The Council of Refugees and the Court took a similar stand in another case, when the applicant went back to Cuba to transfer his house and prevent the government from confiscating it.

Even if the reason to go back to your country of origin is urgent, the analysis of all circumstances can result in something negative to determine if there is real fear and necessity for protection.

“In Arayo, the principal claimant had returned to Chile and remained there for some nine weeks while she obtained the permission of the father of her child to remove the child from Chile. While the evidence regading re-availment clearly indicated that it was for the sole purpose of allowing the mother to bring her son to Canada with her, the evidence did not go so far as to establish that other arrangements could not have been made so that the two claimants could have left Chile together when the mother first left.”

Based on the presented information, it is advisable to NOT go back to your country of origin if you have obtained the protection of the government of Canada and later having obtained the permanent residency. It is also advised that you obtain a Travel Document instead of your passport.

It is also advisable that at the time of applying for your Canadian citizenship, as soon as you are eligible, with the purpose of being protected by the Canadian Charter of Rights and Freedoms that contemplate the constitutional guarantees in Canada. Particularly, I close this article with section 6 of the Canadian Charter of Rights and Freedoms.

Section 6 (1) Every Citizen of Canada has the right to enter, remain in and leave Canada.

Photo credit: Franck Michel

When Changing Status from Visitor to Student

One of the most common instances for people who are interested in studying in Canada is to enter the country as a visitor, to search for academic programs of their liking, and then trying to find a way to apply for a study permit. At Global AG, we have helped a lot of students with these kinds of applications throughout the years, but in the last few months, there have been some complications for these types of clients.

Recently, there have been observations made by Immigration, Refugees and Citizenship Canada (IRCC) which question the authenticity of the intentions to study from those who have stayed in the country for a long time as visitors and later seek to change their status by applying for a study permit outside of Canada, while they are still physically present in Canada as a visitor. This tends to happen when the person has already extended their stay as a visitor, meaning they have a “visitor record” which means that the staying period is greater than the initial period and that further complicates the application.

What is mentioned above does not mean that you cannot come into Canada and later look for a study permit, because that would go against all logic, seeming that many students need to physically visit the school in order to make a decision, and once in Canada they want to wait for their study permit approval within Canada, rather than going back to their country of origin. It is also important to demonstrate the bona fide nature of the applicant and what has been done during their stay in Canada.

It is important to keep in mind that the process of application for a study permit for a person that is in Canada as a visitor has two parts: 1) the status as a visitor inside Canada and 2) the application for a study permit done outside Canada (generally, the application is sent to the embassy of Canada at the country of origin of the applicant).

The aforementioned implies that the person has to maintain a valid visitor status in Canada, while the application is being processed outside Canada.

In light of this new tendency, what we are recommending to our clients is that they do not prolong their application for a study permit, considering that the maximum time a person should take is 3 months after having arrived in Canada as a visitor to solicit a study permit, and therefore avoid a rejection.

Nevertheless, sending your application on time is not the only thing that matters, because it is also important that you send your application correctly to avoid any time delays due to errors and therefore having to extend your stay in Canada as a visitor and possibly face a rejection to the study permit.

All in all, the best way to avoid a rejection to an application of a study permit done by someone with a visitor status in Canada is to send the application as soon as possible, and with a solid plan for your studies in Canada.

If you are in this situation, I am are here to help.

un-determined job contracts for immigration canada

Undetermined Job Contracts and their Function in a Canadian Immigration Process

Being a foreigner and having a job offer in Canada could open doors towards a permanent residency, however, the definition of a job offer can vary depending on which procedure you use.

An undetermined job contract, or, a labor contract without termination date does not necessarily mean that it will serve for immigration and it will not always be considered as a job offer for purposes of immigrating to Canada.

To understand the concept of undetermined contracts and their impact on immigration; the first step is to identify that the Labor Rights that regulate the employment contracts, is under provincial jurisdiction and its fundamentals are found under the Constitution of 1867 Article 92(10). Meanwhile, the immigration area is under federal jurisdiction and it is regulated through Article 91(25) of the same Constitution.

This division of faculties helps us to understand that the sector that regulates the labor contracts and the sector that regulates job permits for foreigners to issue said contracts are separate jurisdictions. Likewise, when conflict arises between jurisdictions, the Canadian courts have established how to proceed.

An example of conflict between jurisdictions would be the following:

  1. A foreigner has been hired in an undetermined way, his/her contract states that the employment period is “open” and has no expiry date.
  2. The work permit expires in a couple of months or in a few years.
  3. The applicant wishes to validate their undetermined contract in order to continue working in Canada and then obtains a new work permit before the Immigration Department to Canada.

In the previously mentioned scenario, it is not possible to validate the labor contract in order to ensure a new permit; this is primarily due to the fact that the federal government is the one who has the last say with regards to labor permits in accordance to the immigration laws and active procedures.

The basis for this is grounded on the Doctrine of “Paramountcy”. This principle of Canadian Constitutional Rights establishes that priority will be given to the application of federal laws when they are in conflict with a provincial law.

The undetermined job contracts, are only valid for obtaining a work permit as long as they are pre-approved via an Immigration program, for example, when a LMIA or PNP is solicited.

This also happens when a Canadian employer offers a letter in order to obtain a work permit, a letter on its own, is not sufficient and falls within the same principles here aforementioned.

If your employer has offered you an undetermined contract or a letter, the best way to validate it is through an immigration program that is in effect.

At GlobalAG we can help you evaluate your offer and determine the option that best suits you.

The Difference Between Lawyers and Immigration Consultants

Many clients ask me what is the difference between lawyers and immigration consultants. The answer is complicated but at the same time rather simple.

I understand that my clients are curious about this difference because they want to know who they are granting access to their immigration case. Their question is often based on determining who has higher knowledge, and this is the complicated part, because credentials aren’t everything. And, there have been cases of fraud committed by immigration consultants as well as lawyers.

Like in all professions there are those who are honest, and then those who are not. Doctors that are extremely professional and others that are not, teachers who are excellent and others who are not so much and so on. It is the same thing in the immigration field, there are professionals who are good, and others who are better.

Because of the fraud that often is committed in the industry, consultants and lawyers without ethics have contributed to the fact that now people take more precautions. For this, I understand perfectly why my clients and applicants of immigration processes in general want to know these differences.

This article covers the following points:

  • The main difference between lawyers and consultants
  • Differences between some consultants and others: characteristics that need to be taken into account

Regarding immigration, both lawyers and consultants are authorized to manage cases in all their stages until the level of Judicial Revision before a Federal Court.

The main difference is that lawyers can present themselves and litigate a judicial revision in the Canadian Federal Court when errors are made at an administrative level. These types of judicial revisions costs millions of dollars and it can take years in some cases, and this in turn means most people would just re-apply again instead of reaching this scenario. What this means, is that this difference should not be determinant.

In contrast to many other countries, in Canada, law students have the freedom to choose part of the courses that they want throughout their careers. So in Canada, not all lawyers learn about Immigration Law during their studies, and this means that not every lawyer is knowledgable of Canadian Immigration Law.

As a result, it is very common for people coming from other countries to believe that lawyers can practice in all areas just because they are a lawyer. This is a misunderstanding.

DIFFERENCES BETWEEN SOME IMMIGRATION CONSULTANTS AND OTHERS

Among consultants there are important differences that need consideration and it is a matter of choosing the most adequate one, like in any other profession.

It is very important to take into account that not all immigration consultants have knowledge of the law. Individuals must know what the previous job of the consultant was before obtaining his/her licence. This is because a consultant that has no notion about law or judicial reasoning might handle the case slightly different; even more so, if the case is complicated. This does not mean that they are incapable but it is something that needs to be considered by the individual.

A lot of times I give this metaphorical example to answer the question:

  • Imagine that you live in a country where there is no licenced doctors and only medical consultants with a licence.
  • If you have a disease and require surgery:
  1. Would you rather have the surgery done by an individual that has the corresponding licence to do a surgery and that practiced medicine previously, for a long time before obtaining the licence?
  2. Or would you rather have the surgery by an individual that was an engineer or sales expert, which obtained the same licence to conduct a surgery but has never performed a surgery before?

This example, although out of context, says a lot. If you plan to work with an immigration consultant, make sure that this person has the necessary abilities on top of a licence. This same analysis must be practiced when searching for a lawyer, because as previously mentioned, a credential is not everything.

An immigration process is more than just filling out forms. The interpretation and application of the law is a very important ability that is acquired throughout the years and with the corresponding studies. An immigration process is an administrative process that is resolved at a tribunal level. The decisions that officials make are not always correct or reasonable and it is necessary to be able to apply the law from the beginning to obtain the best possible result. Immigration law is made up of various laws, regulations and policies; on top of being influenced by common-law/case-law.

During immigration processes, it is important to recognize when a violation exists to the legal principles of procedural fairness, Independence, impartiality and bias; your representative should know when and how to act to demand some type of legal remedy based on the law and prepare the necessary petitions according to the Rule of Law.

At Global AG, we pride ourselves in making sure that your application is always done according to the law. Our services include much more than just filling out forms and Maria Campos has the necessary knowledge to obtain a positive outcome in your case.

Photo credit: Franck Michel

Educational Credential Assessment (ECA) in immigration processes: What it is and how it works

The additional assessment of credentials that the department of Citizenship and Immigration to Canada has put in place after the recent changes to the system of permanent residency, has created a lot of confusion among applicants. The biggest confusion is when applicants think that this process is to revalidate their professional credentials and that by obtaining a letter from the agency that is in charge of this evaluation, applicants are granted the permission to practice in their fields once they immigrate to Canada.

The Educational Credential Assessment (ECA) was proposed because if someone wanted to claim points for a certain level of education, these points were granted only if the education was indeed obtained. In previous economic programs, points were granted when individuals claimed they had an educational level of BA, Masters, or PhD. but some individuals obtained these educational credentials in a fraudulent manner.

To put a stop to this situation, CIC called in a specialized agency to receive and check the authenticity of these documents. The main goal of the ECA is to compare, not revalidate education. This comparative process can be used, among other things, to fulfil a requirement under certain immigration programs that grant points for academic credentials.

If, at the time when you are uploading your immigration profile under any scheme you plan to obtain points for education in your country of origin, you must keep in mind this evaluation, because if not, your points in this area will be zero.

The agencies that were named by the government to conduct this assessment, require that your educational institution in your country of origin sends a sealed envelope with all your academic documents directly to the agency in charge in Canada, otherwise, it is difficult for the agency to check the authenticity of the documents that will be evaluated.

If you have specific questions on how this program works and how to undertake it, contact us today.

We also offer translation services from Spanish to English, in case your institution only offers the documents in Spanish, we could directly provide the translations to the Canadian agencies through our translation services.

un-determined job contracts for immigration canada

Document Translation for Immigration Purposes

Depending on the type of immigration process, there will usually be a list of documents that will need translation when it comes time to submit the application to Immigration Canada.

Canada’s official languages are English and French, and immigration procedures indicate that every document needs to be presented in either of the official languages of Canada. Even though some embassies and Canadian offices abroad have been flexible when receiving information that is sometimes not in English or French, this may not be for all cases.

Documents that are not in English nor French must be translated. It is understandable that due to the costs of translations, an individual will try to choose only the necessary documents for translation in order for their application to be successful.

If you must choose to translate only a portion of those documents, then the following points will be of much help:

  • If your application is for a temporary stay, financial documents and of ties to your country of origin are the most important.
  • If you would like to prove your relationship with another individual, you must translate marriage certificates or civil proceedings.
  • When applying for permanent residency it is advised that you send all your documents to be translated to avoid risks.

If you wish to apply in your country of origin, you have greater flexibility when it comes to presenting documents that are not translated, however, you have to keep in mind that Immigration Canada officers have the discretion of ignoring your documentation if it is not translated.

If you are looking for translations at a decent price, and the satisfaction of knowing which documents are indispensable for translation, at GlobalAG we can help.

Global Advising Group: Translation Services for Immigration

 

Implications of Writing an Invitation Letter for Family and Friends: The Responsibilities and Legal Impact

Invitation letters for purposes of visa applications and other immigration steps are an important element of the process. These letters are normally obtained by friends or family that live in Canada, who then promise to keep track of vacation expenses, lodging, and also to ensure that the applicant will depart on the stated date.

The person who writes this letter should always do it in good faith and do what is in their power to comply by what is written in the letter, however, the letter has no legal force and IRCC recognizes that this letter is written under good faith. What this implies, is that the letter is not a contract and even if the applicant were to disobey any Canadian rule or if something did not go as planned, there is no legal responsibility of the host, just a moral responsibility.

The above is simply regarding the legal point of view, however, since Canada prides itself with a system of honor in many aspects and in immigration cases, the information that is presented in the visa application is kept through the GCMS system, which will state the name of the host who has written the letter. This allows the IRCC to identify if a host has written an extensive number of letters that have not been of good faith and the terminations of these, and this would impact the credibility of the applicant and host for present and future applications.

The person who receives, and the person who signs the letter should take it with seriousness, because it will be presented to the IRCC. They should also carefully consider the requirements of the letter so that it is accepted.

by Maria Campos Ozaine LL.M
Immigration Consultant

I have a new work permit. Do I need to renew my SIN?

Temporary foreign workers and international students who are entitled to work in Canada often wonder how to match their work permits with the social insurance number (“SIN”) in order to keep using it.

The first thing to know is that the SIN is granted on a personal basis by Service Canada (SC) and that SC and Citizenship and Immigration Canada (CIC) are both federal agencies with different duties.

When someone is granted a SIN, this number will be the same for that person until they become permanent residents. Although, at the time of application, they are given a document that bears an expiry date, that is only a formality to serve as the first guidance for the right to use the SIN.

The SIN does NOT expire, what expires is the right to use it.

That being said, if someone is under implied status because they meet the conditions to keep working in Canada, they can continue to use the SIN despite the fact of having a document that says it is expired. It is not illegal to keep using the SIN as long as the applicant has the legal right to use it. That right is granted by the current immigration laws.

I am on a Visitor Visa and wish to become an International Student in Canada

It is very common that short term students come to Canada as tourist to undertake a program which is less than six months in length. Once in Canada, their desire to pursue post-secondary education or to further their English skills arises. At this point they are in a position where their status needs to be extended, changed, or both.

In general, visitors cannot change their status to students within Canada and the application has to be filed overseas. It is worth mentioning that the applicant may be able to be physically present in Canada while the application is being processed overseas, this applies as long as the applicant holds legal status within the country. Please note that filing the application to change the conditions overseas does NOT grant legal or implied status in Canada. You will be responsible for maintaining active your legal status within the country. This means that sometimes two different proceedings have to be filed for at the same time, one being the application for the study permit, and the other one the extension of your status as a visitor to remain in Canada while waiting for the study permit.

Some visitors to Canada usually apply to change their status at a visa office in the USA, however it is well known that processing times there are slower, therefore, it may be worth to consider applying in your country of origin while you are physically present in Canada.

The only exceptions to apply for a study permit within Canada are as follows:

  1. Minor children studying at the primary or secondary level.
  2. Visiting or exchange students. Usually the ones who come to Canada for a defined period of time and attend a Canadian Institution that has an agreement with their home institution.
  3. Students that completed a short-term course or program of study that is a pre-requisite for acceptance at a designated learning institution. Note that this does NOT include English University path programs because these programs are optional and are not a pre-requisite, in other words, they are not mandatory.

If you are planning to change your status as a student while being a visitor, it is recommended to do it as far in advance as possible trying to avoid the expense and the burden of having to file for two processes at the same time.

Trudeau: Promises vs Facts in Immigration issues to Canada

Now that Justin Trudeau is the Canadian Prime Minister the expectations of the people who travel or wish to travel to this country, or that are possible candidates for an immigration program have risen as a consequence of the promises that the politician made during his campaign.

It is important to remember that throughout the years, the changes that have been made to the immigration programs have been carried out with the intention to equalize it to the immigration systems of brother countries who are also part of the Commonwealth. To say that these changes in Canada have made it worse or that the immigration programs are more difficult to have access to, is relative; individuals that previously did not qualify for immigration to Canada do now at a faster rate with this new system. Individuals that might have previously qualified may not qualify any longer.

The present Prime Minister has stated publicly in several instances, his intention of making changes to the present immigration system in different areas. Nevertheless, before reaching positive conclusions, it is important to take into consideration the following aspects:

  • Justin Trudeau is a politician. Politicians tend to promise endless positive changes to society, with the sole purpose of gaining voters. This often times means that his proposals are kept as promises and they are not translated into real changes.
  • But, let’s assume that there was some changes made, and there was some modification to the law, the time frame in which we could observe the changes might not be as fast as we would like or imagine. To modify any type of law there is a procedure that needs to be followed, and this not only depends on the Prime Minister, but also on Parliament, with periods of discussion, approval, and publication that are out of their reach.
  • In any case that there are changes implemented through any policy, there cannot be any certainty that this is permanent, because by not having enforcement with the law, it could be modified or even eliminated at any time. This could also happen with policies that were previously beneficent that could be eliminated by our Minister.

From the above, we can conclude that we are faced by an environment full of uncertainty with regards to this subject, and it is not good to have any type of expectations; the best option is to wait to see if these promises will turn into actions and take part as laws or policies so we can benefit from them and apply them to the possible candidates as soon as possible.

Immigration Consultant in Vancouver, BC