Archives for July 1999

Q. I would like to join my same sex partner who is a Canadian citizen residing in Canada. Although my education is not yet complete, the Canadian Embassy has suggested to me that I should start my application process before I receive my diploma as the application time can be quite lengthy.I am uncertain as to what my best course of action in the matter would be as this is a very delicate and important situation for me. Would it be best to apply right away, to wait for my diploma or could my partner apply?

Answer: As a general rule, we would not recommend that applicants proceed with an application in the skilled worker program prior to having fulfilled the requirements of such.

In the case of a same sex relationship, the candidate is typically assessed in the skilled worker program first. If the individual does not qualify, the case is then assessed under Humanitarian and Compassionate grounds. This is likely the reason that the immigration official advised you to proceed early.

[Comment: In the cases of same-sex or common-law partners, where formal marriage documents may not exist, it is important to objectively document the relationship for the purpose of applying for immigration. Doing so can often be critical where an applicant does not meet the requirements of the selection criteria for an independent applicant.]

Q. I am a Canadian citizen and engaged to a south Korean, we planned on getting married in Seoul then having her return with me to Canada, at which time I would sponsor her to immigrate to Canada. She does not require a visa to enter canada as a visitor, just a passport.

Could she be refused entry to Canada as a visitor if it comes to light that she has only a one way ticket and is married to a Canadian, thus likely to apply for immigration to Canada, or is this OK under the dual intent clause?

Answer: In theory, any visitor – with or without a visitor visa in hand – can be refused admission at a Canadian port of entry if an immigration official is not satisfied that their intentions as a visitor are bona fide. In other words, if the immigration official suspected that the individual would not leave Canada when required to do so, visitor status could be refused.

Simplified, dual intent means that the individual has an intention to remain in Canada permanently, but is visiting in the interim, and would depart if required to do so. Canada does generally allow for such a possibility if the immigration official is satisfied. This may apply in your spouse’s case.

Additional information on this topic is available at:

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

As was previously reported in this Newsletter (April 1999 Edition), on April 1, 1999, the Federal government announced the implementation of its new Investor Program. The new rules and regulations only apply to individuals who submit their Immigrant Investor applications after March 31, 1999.

As previously reported, the essential changes to the Federal Program can be grouped into two categories. Firstly, the dollar thresholds have been increased. Whereas previously an Immigrant Investor had the option of investing $250,000, $350,000 or $500,000 for a five-year period, the new Program provides for one single investment option in the amount of $400,000. In addition, the minimum net worth required of the Investor has been increased from $500,000 to $800,000.

On a second level, the old Federal Program required Investors to make their investment in a provincial government-administered venture capital fund. Each of these funds would then pool investor money and invest it in other businesses as permitted by Federal regulations and provincial guidelines. Under the new Program, Citizenship and Immigration Canada will act as agent on behalf of provincial and territorial funds, and investments will be subsequently allocated to approved provincial or territorial funds. In this manner, a single federal window will replace the numerous funds previously available to Investors.

Investors who are destined for the Province of Quebec have only been partially affected by the new rules. Quebec has agreed to raise its minimum investment amount to $400,000 and its minimum net worth requirement to $800,000. However, Quebec will not abolish its current system of provincial government-administered venture capital funds.

While the new Federal Program was officially announced on April 1, 1999, there was no actual Program in effect under which candidates could submit their applications as Investors. The latest Update from Citizenship and Immigration Canada confirms that the Program is officially “up and running,” and explains the new processing procedures under the revamped Program.

With respect to the actual application forms, candidates are allowed to use the “old” application forms until such time as new application forms which reflect the changes from the “old” Program are made available.

Processing and Right of Landing Fees remain unchanged under the new Program (processing fees are $1,000 CDN for the principal applicant, $500 CDN for each family member over the age of 18, and $100 CDN for each family member under the age of 18; Right of Landing Fees are $975 CDN for each family member 19 years and older, while family members under 19 years of age do not pay a Right of Landing Fee).

Under the new Program, applicants will pay their $400,000 investment directly to the Receiver General for Canada, and a non-transferable zero interest promissory note – fully guaranteed by participating provinces – will be issued for subsequent repayment, without interest, five years and two months after the end of then month in which payment is received in Ottawa.

Applicants can make their $400,000 investment anytime after an application has been submitted, although payment will not actually be required until immediately prior to visa issuance once all other immigration matters have been resolved. Visas will not be issued to Investors prior to such payment. Arrangements to allow applicants to wire their $400,000 directly to the Federal government will be completed shortly. Until such time, however, applicants may pay their investment by bank draft or money order.

Any arrangements to finance the $400,000 investment are the applicant’s responsibility. If a lender requires the $400,000 promissory note to be pledged as collateral, applicants must arrange with the lender to notify the Federal authorities who, in turn, will confirm receipt of any such arrangements directly with the lender.

The Federal government has prepared a form of Subscription Agreement which must be used in order to subscribe for the $400,000 promissory note. Two copies of this agreement must be signed and submitted along with the $400,000 payment. The Federal authorities will counter-sign both copies of the agreement and return one fully-signed counterpart to the Investor along with a receipt for the $400,000. The actual Promissory Note will be sent to the Investor shortly afterwards, and will indicate the provincial distribution of the $400,000 as well as the redemption date for the Promissory Note (no more than five years and three months after the date of payment).

It is important to note the Government’s refund policy. Absolutely no refunds will be made after visa issuance. However, if an Investor wishes to withdraw his or her application prior to visa issuance, the $400,000 will be returned to the Investor within 90 days of a written request for same. In addition, if an investment has been made and a visa subsequently refused, then a full refund will be made within 90 days of a requests for same.

As a result of the government’s refund policy, certain Investors may choose to make their payment well in advance of visa issuance. Given that the processing of Investor application often takes in excess of 12 months (and even as much as 24 months or more), those Investors who believe they have “strong” cases may opt to make their payment at the same time as they submit their applications. If they are ultimately issued visas, their five-year “lock-in” period will only have three or four years left to run after visa issuance. On the other hand, this “gamble” would fail if visas are not ultimately issued. Although the $400,000 payment would be refunded, the payment would have earned zero interest during the period between payment and refund.

Evaluating Personal Suitability: 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 may be awarded up to a maximum of 10 units of assessment under the somewhat discretionary “Personal Suitability” factor. An assessment as to “Personal Suitability” is supposed to reflect the interviewing visa officer’s impression of the applicant’s likelihood to successfully settle in Canada. Among other things, visa officers are supposed to assess – in as objective a manner as possible – an applicant’s adaptability, motivation, initiative and resourcefulness.

Recent jurisprudence emanating from the Federal Court of Appeal reflects the Court’s increasing frustration with interviewing visa officers who award few “points” under “Personal Suitability” as a means of rejecting applicant’s who otherwise have objectively strong cases but, for some discretionary reason, are not deemed worthy of success by the particular visa officer.

In the recent case of Huang Wei Wen v. Canada (Minister of Citizenship & Immigration), the applicant was awarded a mere 4 units (out of a possible 10) under the Personal Suitability factor. In ruling in favour of the applicant, the Court found the visa officer’s decision unreasonable for three reasons.

Firstly, the visa officer had made an erroneous finding of fact. The visa officer overlooked the fact that the applicant’s wife worked as a bookkeeper, an occupation on the occupational demand list. The Court held that the employability of the spouse was a relevant factor in the assessment of the applicant’s suitability for which he received no credit. Furthermore, the visa officer admitted to this “oversight” in her affidavit and agreed that she would have awarded one unit of assessment for the spouse’s occupation had she in fact taken this into account.

Secondly, the visa officer breached procedural fairness in not raising her concerns about the applicant’s settlement arrangements. The Court found this omission to be even more significant given that the visa officer was unable, in cross-examination, to point out any other reasons that could have triggered her low assessment of the applicant’s Personal Suitability. If this was in the fact the case, the visa officer should have at least given the applicant the opportunity to disabuse her of her concerns regarding his ability to settle in Canada.

Thirdly, upon careful cross-examination, the visa officer was obliged to admit that the applicant had a bona fide job offer in Canada, that his spouse was working in a demand occupation, and that he had relatives in Canada about whom she did not have any particular concerns with respect to ability to assist to settle in Canada. Furthermore, the visa officer stated that his English language ability was not an issue and that he had “some knowledge of Canada.” As a result, the Court found no objective factors on which the visa officer could justify her negative assessment under Personal Suitability.

For these reasons, the Court held that the visa officer’s decision as to Personal Suitability was “perverse.”

Another recent case on point is that of Mustafa Maniruzzaman v. Canada (Minister of Citizenship & Immigration). In that case, the applicant was applying under the occupation of bank utility clerk. The visa officer had awarded the applicant minimal units for Personal Suitability on the grounds that the applicant had been unable to demonstrate that he had made any effort to learn about the banking industry in Canada (his intended occupation) or about Canada in general. As a result, the applicant’s application for permanent residence was refused.

In finding in favour of the applicant, the Judge made a detailed review of the questions posed by the visa officer and the applicant’s responses. While the Judge agreed that the applicant’s knowledge of Canada and the Canadian banking industry was not ideal, it was far from unacceptable. Furthermore, the Court held that the visa officer placed an inordinate amount of weight on relevant but not central factors, such as the applicant’s knowledge of Canadian geography. At the same time, the visa officer appeared to ignore or not explore much more relevant areas, such as the applicant’s efforts to apply for a job in Canada.

In this case, the visa officer’s line of questioning left the Court with the impression that the visa officer was not fairly assessing the applicant’s personal suitability. For example, in criticizing the applicant for not having searched more diligently for a job in Canada, the visa officer completely ignored the obvious reality that few Canadian employers will offer a job to an immigrant who does not yet have status in Canada.

Furthermore, the Court found that the applicant’s failure to become more knowledgeable about Canada must be considered in the context in which the applicant found himself. He had applied for permanent residence two years before. He had been paper screened and discouraged from proceeding further. He persisted, however, and insisted that he be given an interview. The Judge therefore concluded that the applicant was being interviewed in a situation in which he had been actively discouraged from proceeding with his application, and he could have no firm expectation that he would be accepted for permanent residence.

Assessing Occupational Experience and Equivalency:

As discussed above, Skilled Worker applicants are assessed under a “point” system. Under current Federal Selection Criteria, “units of assessment” are awarded, among other things, for occupational experience. Applicants may be awarded up to 8 units of assessment depending on the amount of relevant work experience accumulated and the type of occupation in question.

In the recent case of Vandana Dogra v. Canada (Minister of Citizenship & Immigration), the Court was faced with the issue of the extent to which visa officers are authorized to look behind the National Occupation Code (NOC) descriptions of education, training and experience, or other statutory criteria, in an attempt to assess the relevance of an applicant’s credentials for becoming successfully established in Canada. In this case, the visa officer evaluated the applicant’s experience as a guidance counsellor in India as zero, on the grounds that the applicant’s experience did not equip her with, and she did not possess, the cultural knowledge necessary to counsel children in schools in Canada.

In ruling in favour of the applicant, the Judge first noted that the experience factor under the current Federal Selection Criteria does not require the visa officer to determine whether an applicant’s experience is equivalent to that in Canada, other than by considering the extent to which the duties performed match those in the description in the NOC. As to whether the visa officer was entitled to make such an “equivalency” determination, the Judge stated that assessing “Canadian equivalents” of overseas qualifications and experience is a task that may be better left to national accreditation committees and provincial licensing authorities.

Furthermore, the Judge stressed that immigration policy is placing increasing emphasis on applicants’ flexibility and adaptability. Thus, educational background and active work experience are likely to be of more importance in predicting successful establishment in Canada.

The Court held that for a visa officer to reject an application for permanent residence as a school guidance counsellor because students in Canada “for the most part, come from an entirely different background than yourself” is at odds with the realities of today’s Canada. For example, many boards of education might regard the applicant’s national origin and experience in Indian schools as valuable assets in assisting children, particularly of South Asian origin, to flourish in a setting where there are conflicts between the values of the students’ ethnic communities and the values of North American society at large.

Lastly, the Judge sternly rebuked the visa officer for posing detailed – and extremely subjective – questions about Canadian customs and culture. For example, the visa officer asked the applicant about the number of grades in Canadian high school, rock groups currently popular with Canadian teenagers and whether she knew what crack cocaine was. The Judge stated that any such questions which are designed to elicit a knowledge of “Canadian customs and culture” are suspect by their very nature, because they assume that “Canadian customs and culture” are monolithic. Not only is this contrary to the theory and practice of multiculturalism in Canada, but it also could easily lead to visa officers identifying as “Canadian customs and culture” those of the oldest established groups only.

The Quebec government has recently issued a statement aimed at Canadian permanent resident applicants who intend to settle in the Province of Quebec.

According to the statement, all applications for Quebec Certificates of Selection (these are the Certificates issued by the Quebec immigration authorities to applicants “selected” by Quebec for immigration to Quebec) filed on or after March 1, 1999 by Skilled Worker/Business Class applicants residing outside the territories which are served by the particular Quebec processing post to which the applications were originally submitted, will be transferred to the appropriate Quebec processing post. This new policy also applies for applications submitted in Montreal. In other words, Quebec applicants will no longer be able to “shop around” for a Quebec immigration processing post (which is a practice currently popular among applicants residing in territories served by Quebec processing posts that have slower than average processing times).

Workers and students residing in Quebec on a temporary basis will still, however, be entitled to submit their applications to Quebec processing posts in New York or Mexico.

The Quebec authorities also announced that the government is undertaking new measures in the face of the massive influx of new applications submitted under the Investor program prior to the restructuring of that program on April 1, 1999. Given that the vast majority of these applications were submitted by Asian applicants, these files will all be transferred to the Quebec processing post in Hong Kong, which post has the appropriate expertise to deal with these applications. The Quebec authorities will announce shortly specific measures that will be undertaken to process this huge number of applications out of the Hong Kong post within reasonable delays.