Archives for 1999

Q. Does anyone know anyone who might have any information at all that might help an HIV+/HIV- same-sex couple immigrate to Canada on Humanitarian and Compassionate grounds? Neither member of the relationship currently resides in Canada, though the negative partner could likely immigrate as an independent.

Answer: Current Canadian Immigration regulations do not allow for same-sex or common-law couples to sponsor their partners under the normal family-reunification rules. However, Immigration Canada has developed an internal policy pursuant to which same-sex/common-law partners of Canadian residents/Permanent Residents will be evaluated as Independent/Skilled Worker applicants. If insufficient “units of assessment” are awarded to the individual, the visa officer would then evaluate, on a case by case basis, whether a permanent resident visa should nonetheless be granted on “Humanitarian and Compassionate” grounds.

The visa officer would then examine all of the evidence provided to establish the genuine nature of the relationship (does the couple live together? for how long? how long have they been a couple? etc…

Almost certainly, however, an applicant that is diagnosed with HIV would not be considered medically admissible. The result could be refusal of all applicants in the case, as is the case with a typical family.

Additional information on this topic may be found at the following URL:

http://canadavisa.com/documents/medical.html

Q. My friend who is a Canadian PR has been stayed outside Canada for more than 6 month for the purpose of study in a European country, and now he would like to return to Canada. He didn’t apply for a Returning Permit when he left Canada, because he didn’t have the intention of abandoning Canada as the permanent residence. In addition, his family has been in Canada and himself still hold a Canadian bank account. He even has a car in Canada which has not been used in the past months.

At the Port of Entry of Canada, IF the immigration officer thinks he wants to abandon Canada, what would happen? Will he be refused to enter Canada and go back to Europe RIGHT AWAY?

Answer: If the immigration official is convinced that the individual had intended to abandon Canada as the place of permanent residence, a number of things may happen:

1) The immigration official could request that the individual leave Canada. As a permanent resident, however, he has the right to insist on his admission, and that an adjudication be held into the case (see 2,3).

2) The immigration official may admit the individual and request an adjudication be held. The individual would be then required to demonstrate the lack of intent to abandon Canada at the adjudication.

3) The immigration official may detain the individual within Canada until the scheduled adjudication. The individual would be then required to demonstrate the lack of intent to abandon Canada at the adjudication.

Again, these are possible only if the immigration official is not satisfied with the individual’s efforts to demonstrate that he did not intend to abandon Canada.

Additional information on this topic may be found at the following URL:

http://canadavisa.com/documents/rrp.html

Employment grew strongly in October for the second consecutive month. An increase of 80,000 builds on September’s gain of 64,000 and brings job gains so far this year to 253,000 (+1.7%).

Unemployment fell in October by an estimated 47,000 and the unemployment rate dropped 0.3 percentage points to 7.2%, its lowest level since March 1990.

For more information, please visit: (Statistics Canada)

In a recent article which appeared in The Globe and Mail (November 19, 1999), Elinor Caplan – Canada’s newly-installed Immigration Minister – indicated Canada’s intentions to encourage the entry of immigrants.

During the course of an interview, Ms. Caplan admitted that Canada has been focusing too much of its resources on protecting its borders, as opposed to promoting immigration to Canada.

Ms. Caplan acknowledged that the Canadian immigration process has become so wrought with delays that many potential new Canadians are discouraged from even applying. Ms. Caplan confirmed that the government is looking at new ways to streamline the immigration process, such as the implementation of a centralized processing center.

As Ms. Caplan stated, “With an economy that’s booming and firing on all cylinders and jobs being created in the high-tech sector particularly, we have to get out there and promote. And we’re not going to be [in a position to] promote if we find people who want to come and they’ve made application and then we make them wait too long.”

This emphasis on speed and quality of service will hopefully inspire qualified foreign individuals to submit applications for permanent residence. The government appears to be aiming to come closer than it has in the recent past of meeting its targeted levels of immigrants. As the article confirmed, Canada “will bring in about 180,000 immigrants this year, 20,000 to 45,000 below the government’s goal.”

On November 5, 1999, the Government of Canada announced the proposal of a new Citizenship Act. According to Elinor Caplan, Canada’s Immigration Minister, the new Act is designed to “strengthen the value of Canadian citizenship by better defining what it means to be Canadian and by setting clearer criteria for acquiring citizenship.”

As the government revealed in its press release, some of the main features of the proposed legislation are the following:

•  The legislation proposes setting more precise terms of residence, requiring that applicants be physically present in Canada for three years of the six years prior to applying. This is in contrast to the current law which requires three years of residence during the four year period prior to applying. In addition, the current law is somewhat unclear about the requirement of “physical presence” in Canada. Thus, while the new law would require actual physical presence in Canada, it would still allow for a certain amount of flexibility – particularly for people who are obliged to be out of the country for extended periods of time.
•  The new Act would set new limits on the number of generations through which citizenship could be passed on to children born abroad. Under the proposed law, an individual born abroad to a Canadian would have Canadian citizenship. However, if that person stays outside of Canada and then has a child, the child would to apply to retain citizenship and meet the residence requirement before the age of 28.
•  Individuals who obtained their citizenship through a false identity or who should have been prohibited from ever obtaining citizenship as a result of criminal activities, could have their citizenship annulled by the Minister.
•  The new law would implement a simplified decision-making process whereby applications would be processed faster.
• A faster and more effective process would be instituted for the review of decisions.
•  A new oath which clearly expresses loyalty to Canada would be introduced. The current oath (dating back to 1947) does not even mention Canada. The new oath would also call for Canadian citizens to confirm their respect for the rights and freedoms of citizens and the centrality of the principles of democracy.
•  Finally, the proposed legislation would establish that foreign children adopted by Canadian citizens could become citizens without first becoming permanent residents.

If passed, this new legislation would represent the first major reform of Canada’s citizenship laws in over twenty years.

Q. I am an American-Chinese, was traveling with a white salesman to make a service call at a large computer company in Toronto. At the airport, customs/immigration asked us the same questions, I was sent for further questioning, but the salesman was sent through.

The immigration official said they were worried about giving out too many work visas, of which I had no interest.

Does Canada have a problem with non-whites in this regard?

Answer: The reality is that such encounters happen with white applicants for employment authorization, as well as non-whites, in many cases where the application is not clearly presented or documented at the time of arrival at a port of entry.

We have been contacted by candidates of all race who have encountered difficulties due to false assumptions about their eligibility to enter Canada for employment related purposes.

[Comment: As there is a degree of discretion available to immigration officials at a port of entry for all non-immigrant visas, the rules that govern admission as such cannot be applied with absolute consistency. For this reason, it is especially important that all applicants for non-immigrant visa at a port of entry be in possession of the appropriate documentation and information for the visa being sought.]

Additional information on this topic may be found at Campbell, Cohen’s web site at the following URL:

http://canadavisa.com/documents/empcanada.html

Q. Campbell/Cohen web site warns that in certain instances the lack of Canadian accreditation may result in the refusal of an application for Canadian Permanent residence.

Is the accreditation for the professions of the:

Auditor,
Accountant, and
Financial analyst

required for the acceptance of the application?

If yes, would the US CPA license suffice?

Answer: Applicants in the profession of Financial Analyst would not typically be required to undergo such accreditation at present. Accounting professionals may be required to undergo such assessment in order to demonstrate employability in Canada, and the eligibility to write the assessments to obtain certification in Canada.

The National Occupational Classification (NOC) indicates that similar requirements exist for auditors, although at least one professional in the field in Canada, from whom we have obtained documentation, has suggested that such requirements do not exist in practical application.

In any case in which NOC requirements are not adhered to strictly, however, applicants should be prepared to provide strong evidence of employability in their profession in Canada.

[Comment: An Accountant or Auditor holding CPA accreditation in the USA would likely be exempted from undergoing assessment for the purpose of the immigration application.]

Employment rose by an estimated 64,000 in September, bringing gains so far this year to 173,000 (+1.2%). September’s job growth resulted in a drop in the number of unemployed, causing the unemployment rate to fall 0.3 points to 7.5%, its lowest level since June 1990.

Full-time employment shows strong growth

September’s job growth was all in full-time work. Although overall employment growth has been slower this year (+1.2%) compared with 1998 (+2.0%), full-time gains have been stronger. Over the first nine months of 1999, full-time work increased 1.9% while part time fell 1.8%. In contrast, over the same period in 1998, full-time employment increased 1.4% while part time jumped 4.7%. As a result, growth in the number of hours worked since the beginning of the year (+1.1%) is similar to the increase observed over the first nine months of 1998 (+1.0%).

More than half of the increase in full-time employment in September was among adult women (+41,000). However, part-time employment for adult women fell by 25,000. Among adult men, employment rose by 21,000, all in full-time jobs.

In the past year, employment growth has been almost twice as strong for adult women (+3.0%) as for adult men (+1.8%), with the gains for both groups all in full-time work. During the same period, the unemployment rate for adult women fell 1.1 points to 5.9%, while the rate for adult men declined 0.8 points to 6.3%.

Applicants who apply for a Canadian Permanent Resident Visa under the “Skilled Worker” category are assessed under a “points” system. Under current Federal Selection Criteria, applicants are awarded “units of assessment” for a number of objective factors, such as age, education, occupational background and language ability.

In addition, applicants must satisfy the employment requirements associated with their intended occupation in Canada, as set forth in the National Occupation Classification (NOC). The NOC will stipulate, for example, whether a particular occupation requires the applicant to have completed a certain level of education at a university or post-secondary level.

It is then up to visa officers to determine, on a case by case basis, whether a given Skilled Worker applicant satisfies all of the NOC requirements applicable to his or her intended job occupation. Thus, even though an applicant may have good English or French language skills, a high level of education, and several years of work experience, if the particular NOC requirements are not met, the applicant will most likely be unsuccessful.

In many cases, the NOC’s wording leaves room for interpretation with respect to the exact educational and work experience requirements associated with many job occupations. One of the most controversial phrases often employed by the NOC is that of “usually required.” For example, it is relatively common for the NOC to provide that a certain type of university degree is “usually required” for qualification under a particular occupation. Given the importance of satisfying the NOC requirements, it is not surprising that a visa officer’s interpretation of “usually required” can be the deciding factor in determining whether a Skilled Worker’s application will be accepted or rejected.

Of late, many Skilled Worker applicants have found that wherever the NOC stipulates that a particular degree is “usually required,” visa officers have interpreted this to mean “always required.” In some cases, applicants have been rejected for the sole reason of not having the degree that was “usually required.”

In the recent case of Razavi v. Canada (Minister of Citizenship & Immigration), the applicant was refused on the sole ground that he did not have a B.A. or college degree. In this case, the applicant’s intended occupation was that of “Purchasing Agent.” The NOC stipulates that in the case of purchasing agents “a bachelors degree or college diploma in business administration, commerce or economics is usually required.”

In overturning the decision of the visa officer, the Judge held that the visa officer had misinterpreted the applicable legal standard as set out in the NOC. In essence, the visa officer treated the educational requirement as an absolute requirement, and the judge held that this was an improper interpretation of the NOC wording.

There is no doubt that this case represents a strong grounds upon which Skilled Worker applicants can now argue that, in certain situations, they should not be refused on the sole grounds that they do not meet an NOC requirement which is not an absolute one.

Unfortunately, not all Judges are as liberal in their interpretation of the phrase “usually required.” In another recent case (Wen Hai Li v. Canada (Minister of Citizenship & Immigration)), the applicant had applied as a computer programmer. The NOC stipulates that, for computer programmers, a bachelor’s degree in computer science or in another discipline with a significant programming component, or a college program in computer programming, is “usually required.”

In this case, the applicant was refused on the grounds that, although he had a bachelor’s degree in engineering – which included two computer courses – his education did not include a “significant programming component.” The applicant appealed the visa officer’s decision, arguing that in addition to the computer courses he had taken as part of his engineering degree, he had also taken other short courses in computer programming and had studied computer programming on his own.

Despite all of the evidence presented as to the applicant’s computer programming education, the Federal Court Judge still held that the NOC educational requirements had not been met. In refusing the applicant’s appeal, the Judge effectively confirmed the view held by many visa officers: that the NOC requirements should be interpreted as strictly as possible. Even though the NOC only required a “significant programming component” – with the meaning of “significant” left undefined – and even though this requirement was only “usually required,” the Judge nonetheless found that the applicant had not satisfied the educational element.

To further complicate this already confusing issue, another recent case heard at the Federal Court elaborated upon the circumstances in which a visa officer should accept an applicant who does not possess a degree which is “usually required.” In Nooshin Nemati v. Canada (Minister of Citizenship & Immigration)), the applicant had applied as a advertising and marketing consultant. The NOC stipulates that, for advertising and marketing consultants, a degree or diploma in business administration or commerce is “usually required.” In this case, the applicant had a social science degree and three years’ relevant work experience.

In refusing the application for permanent residence, the visa officer referred to the interpretative provisions of the NOC which state that where an educational level is “usually required,” an applicant must meet it unless the visa officer is satisfied that there are “significant and substantial” factors in the file which make it likely that the applicant could overcome the absence of the usual requirement. In this case, the visa officer found that after examining the applicant’s university transcript and work experience, he was not satisfied that they compensated for the lack of a degree in business administration or commerce.

The Judge supported the visa officer’s decision and rejected the applicant’s appeal. In so doing, the judge confirmed that the assessment of “significant and substantial” factors is essentially a finding of fact that is within the discretionary power of the visa officer. Provided that the visa officer does not make such assessment in a “perverse or capricious manner,” the Courts will not overrule the findings of the visa officer.

In conclusion, then, it appears that the view that “usually required” means “always required” should no longer be adhered to by visa officers when interpreting NOC educational requirements. On the other hand, it is difficult to predict how various Federal Court Judges will rule on the question as to whether there are “significant and substantial” factors in the file which make it likely that the applicant could overcome the absence of the usual requirement. As we have seen, some Judges will apply a more liberal interpretation, others will apply a more strict interpretation, while yet others will defer to the reasonable judgment of the visa officer. Perhaps the most important lesson for potential Skilled Worker applicants is that where the “usual” requirement cannot be met, the file must be presented in as clear and convincing manner as possible so as to stand any chance of success.