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Success: H&C

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As part of our series to share success stories, we are thrilled to share this story of a Mexican family who were granted Approval In Principle (AIP) on an Application for Permanent Resident Status based on Humanitarian and Compassionate Considerations (H&C). As you may be aware, the H&C application currently has an approval rate of approximately 50% only. This application requires significant work and research. In this case, we worked with numerous community members, academics, and legal scholars to put together a strong application based on their humanitarian circumstances. humanitarian

A brief background. A family of (5) five Mexican nationals with strong family and historical connections to southern Manitoba came to our office in early 2018. This Mennonite family were all born in Mexico. Their parents (deceased) were members of Old Colony Mennonites who were born in Manitoba. Based on issues related to education, they left Canada to settle in Mexico and Paraguay. They came to us to help them rekindle their ties with the Mennonite community in the Winkler area. As they have no formal education, they did not qualify for the RNIP, MPNP or any other skilled worker category even though these are highly accomplished applicants.

After only 11 months of processing, IRCC gave approval in principle (AIP) to this H&C application based on the strong humanitarian arguments. We are very pleased with the processing time of this application – faster than average processing times.

This family has maintained their temporary status in Canada throughout the H&C process and they are currently working with valid Work Permits. We attribute the success of this application based on the strong support of the Mennonite community and strong legal research. Similar to another humanitarian application that was approved, we prepared +400 pages of documents for this H&C application.

This family is naturally delighted their application has passed the AIP (first-stage) approval and we look forward to this family becoming Permanent Residents of Canada. To date, Clarke Immigration Law has never had an H&C application refused.

Lessons From 2019

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We find ourselves at the end of another year. Indeed, the end of 2019 also marks the end of a decade. This is a time for contemplation and an opportunity to ponder lessons to learn for the future. I want to start but expressing my thanks and gratitude for my team. I am thankful every single day to work with an amazing group of professionals who put their hearts into their work. My main job is to provide guidance and support to ensure that we remain focused on providing the absolute best service for our clients.

I want to take time at the end of 2019 to think about lessons learned; hopefully, 2020 will bring positive change.

  1. Applicants Remain Vulnerable

Over and over and over and over, we have seen how applicants have paid thousands upon thousands of CAD dollars to shady representatives for poor service. I find it deeply frustrating and infuriating to see clients punished as a result of negligence. These applicants are the victims and they remain vulnerable. I recently attended an interview with a CBSA Officer and an Egyptian client shared her story. She paid an immigration consultant $15,000.00 for an application and she was not even eligible to apply. In my view, that is pure theft.

We are working with a Vietnamese family who paid a Chinese representative for a Study Permit. Completely wrong. Thankfully, CBSA started a criminal investigation against him and I hope his former clients are not punished.

In 2019, the Government of Canada took action “to help protect vulnerable people” against “fraudulent immigration consultants”. We will have to see if things get better in 2020 and the next decade.

  1. Canada is the New Hope2019

Clarke Immigration Law is based on Canada’s status around the world and I am constantly reminded how fortunate we are to live in one of the best (if not the best) countries. From our office, this past decade marks a strong collaboration with the news. We were called upon by CBC News, CTV News, Global News, Winnipeg Free Press and many other news sources to comment on different stories. Primarily, these stories stemmed from Canada as the New Hope in the world, replacing the United States as the “best” country for applicants from around the globe.

It was my pleasure as the only Canadian lawyer at the international EB-5 Conference in Las Vegas, USA. I was asked to present as a result of the interest by investors around the world in Canadian business opportunities, including the Manitoba Provincial Nominee Program – Business Investor Stream. And, of course, I must mention the amazing people at TEDx Winnipeg who gave me the stage to talk about open borders and refugees which has been published on YouTube.

It is clear that 2020 will be a decade of growth for Canada and we will continue to work to build this country.

  1. Hope for the Best, Plan for the Worst

Generally speaking, I stay out of politics. I have worked with Members of Parliament from all political parties and we will continue to advocate on behalf of our client regardless of the party in power. That said, I firmly support the current Liberal government and I am hopeful for this coming decade.

My hope for positive political change in 2020 is also balanced with a plan to consider the worst. Minister McCallum made significant changes to IRPA that rolled back many of the inhumane changes by the former Conservative government; however, this government needs to do more. I feel privileged that we were able to work with the Liberal government to make changes to section 38 of IRPA (Medical Inadmissibility) on behalf of the Warkentin family.

  1. Uncertainty on the Horizon

As my mum often says, the only constant is change. There is no doubt that 2020 and the new decade will bring change. Here are a few predictions for this coming decade:

  • The Government of Canada and the Government of Manitoba will continue to buttress immigration laws to attract STEM graduates and professionals;
  • The current Liberal government will focus on quicker processing times, including Family Class applications;
  • Regional migration and new programs that focus on smaller communities will thrive;
  • International students are the strongest stream for Permanent Resident status;
  • Refugees will be recognized for their economic contributions;
  • The changes to regulation of Immigration Consultants will fail and the government will be forced to revisit this issue.

We wish you all the best for 2020 and the coming decade. We have many reasons to celebrate 2019 and, at the same time, learn from past lessons.

Sponsor Parents – 2020

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UPDATE (12 DEC 2019): I have spoken with my colleagues and IRCC will be opening this program at the end of JAN 2020; however, they are planning a different system to select applications. For more information, please contact our office directly.

IRCC has announced in December 2019 that Parents and Grandparents may be eligible to sponsor in 2020. This comes after the Liberal Government was reelected and they are continuing with their previous election promise to reunite parents and grandparents in Canada. The previous Conservative government suspended this sponsorship application and replaced this program with the Super Visa.

Based on current information, the program to sponsor parents or grandparents will reopen at the beginning of 2020. Sponsors must an “interest to sponsor” form immediately after the program reopens. We expect this application to sponsor parents will be as popular as previous years. Previously, the IRCC website shut down after approximately 10 minutes only.Sponsor Parents

If you plan to sponsor parents or grandparents, please retain our office to help with the interest to sponsor form. Our fees for this service are only $500.00 CAD and we will have staff prepared to submit these forms as quickly as possible. All our fees are published on our website and we would encourage you to review the Frequently Asked Questions (FAQ).

Only sponsors and applicants who submit the interest to sponsor form in time will have the opportunity to submit a full application in 2020. At that point, we can assist to prepare the full application. There is a 60 day deadline to submit the full application. Based on previous experience with these applications, if a family is not eligible and/or the applicant is inadmissible for any reason, IRCC will contact the next potential applicants.

We can only assist a limited number of families in this process. We would strongly encourage you to have your file opened and set up in DEC 2019 to ensure the best chance of being selected in early 2020 when the program reopens. Please contact us immediately if you would like assistance to sponsor parents or grandparents.

RNIP – Manitoba

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The Rural and Northern Immigration Pilot (RNIP) is an opportunity for applicants to obtain Permanent Resident status in Canada. RNIP officially launched for applicants in November 2019 after IRCC vetted communities across Canada. We are fortunate in Manitoba that two (2) communities in our province have been selected and one (1) community in Ontario that is very close to Winnipeg. This is the result of a proven track record through the Manitoba Provincial Nominee Program (MPNP) for helping families settle and become successful citizens.

We have been receiving many (many!) requests for more information on the RNIP program. This is an exciting program for applicants and the regions that have been selected by IRCC. We can provide general information here on our website; however, I would strongly encourage you to book a consultation for more information that is specific to your circumstances.

RNIP

Photo by Melissa Askew on Unsplash

There are three (3) communities close to Winnipeg who have been approved by Immigration, Refugees and Citizenship Canada (IRCC). Each of these communities was selected by the Federal Government to encourage regional migration and to encourage applicants to consider rural communities for themselves and/or their families.

The RNIP is an opportunity for applicants who have genuine intentions of settling in these smaller communities. The purpose of the program is to provide power to these rural communities to connect and select applicants who meet their labour needs. This is done through collaboration with local businesses and statistics from the labour market.

This application has two (2) parts. First, applicants must meet the requirements by IRCC. These include minimum proficiency in English or French, at a minimum high school equivalency, and settlement funds. The minimum settlement funds for this program is the equivalent of $8,722.00 CAD. This must be shown through bank statements and/or other property/ financial documents to show IRCC the applicant(s) has the money to pay for the initial costs of moving to Canada. Please note that the minimum settlement fund requirement is not necessary for applicants working in Canada on a valid Work Permit.

BRANDON

We have been in contact regarding this program. Brandon is a city that is approximately 2 hours from Winnipeg by car. Brandon is a vibrant community with a growing middle class. It is the hub for many surrounding communities in Manitoba and Saskatchewan. We currently have clients a Brandon University (BU) and clients in the surrounding area. In general, this community supports newcomers who have a genuine interest in building the community. There are many opportunities for families who are interested in relocating to Brandon.

As noted on the Brandon RNIP website:

As the second largest city in Manitoba, Brandon provides services and amenities not only to its 50,000 residents but also to another 130,000 people that live outside the city. The full service city is home to two colleges, a university, a regional hospital, government offices and numerous businesses and services of all types and sizes. The community has a low crime rate, affordable housing, clean water, fresh air, free quality public education and health systems, and abundant recreational and cultural opportunities.

ALTONA, RHINELAND

This region includes the towns of Altona, Gretna and Plum Coulee. We have served many families in this area and these communities have a strong history of supporting new immigrants. Businesses in this region has a demonstrated support for the RNIP program. This community is organized and they are actively seeking applicants who have a genuine interest. There are currently employment opportunities that are published online.

We have been very impressed with the level of organization from this region. Businesses and the community are very keen to attract immigrants to build businesses. SEED (Supporting Entrepreneurs. Economic Development) has been established to vet applications and a committee is in place to help match potential applicants with businesses.

We are also impressed that SEED has been very clear that representatives cannot guarantee:

  • Rural and Northern Immigration Pilot approval

  • Permanent Residency Approval

  • Bringing your extended family members to Canada, expedite review of your application

  • A faster review of your application to the Rural and Northern Immigration Pilot or for Permanent Residency

If you are interested, we would recommend that you watch this video and build personal connections with residents of this community.

CONSULTATION

For more information please book a consultation with Clarke Immigration Law. 

Brandon and Rural Immigration

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The Government of Canada has regularly boosted rural immigration programs for communities outside the urban centres. These programs focus on communities in Manitoba that include Brandon, Altona, Morden and Portage la Prairie. We look forward to working with businesses and rural municipalities to bring skilled workers and entrepreneurs to these communities as part of the Manitoba Provincial Nominee Program (MPNP) and/or federal programs from Immigration, Refugees and Citizenship Canada (IRCC).

In a recent speech, Minister Hussen recognized the importance of rural immigration to small communities in Canada:

So whether we find ourselves in Sault Ste. Marie or Brandon, Manitoba, or Vernon, British Columbia – I think all Canadians agree that our country would simply not be the same without the contributions and the presence of rural and northern Canada. Canada’s smaller cities and communities provide and contribute almost 30 percent of our GDP, yet most newcomers go to the big cities. Rural Canada and northern Canada are an important part of our history and key to not only our current economic growth, but our future prosperity as a country.

Indeed, here at Clarke Law, we work with entrepreneurs and skilled workers to boost the development of rural Manitoba and communities outside the Greater Capital Region (GCR).

Rural immigrationThe MPNP program recognizes the importance of these programs. As noted by Kelvin Goertzen, the MLA for Steinbach:

In 2018 we celebrated the 20th anniversary of the Manitoba Provincial Nominee Program (MPNP) and the important contribution that immigration has made to the growth and vitality of our communities and our economy. Over the last two decades, the MPNP brought in more than 130,000 economic immigrants to Manitoba of whom more than 20% established themselves in regional communities throughout the province.

These programs from MPNP and IRCC have had a positive economic impact on these communities that are vital for Canada’s economy. As noted by MLA Goertzen:

Our success in attracting newcomers has been sustained by strong regional economies where unemployment rates have been as low as 3.1%, and immigration has in turn contributed to the labour force growth and business expansion of rural manufacturing and other industries. This success is also reflected in our ability to retain these newcomer families at a rate that has remained consistently between 87 and 90%. But these statistical facts are brought much closer to home for all of those communities that have been able to keep their schools open and in many cases even add additional schools and classrooms to keep up with their growing youth population.

Applicants who are interested in these communities may have a high chance of success and they may be good candidates for Permanent Resident status:

We work with applicants and leaders in the regions above to bring skilled professionals to these regions and boost Manitoba’s economy. Granting Permanent Resident status to professionals and families in smaller cities and rural communities is a win-win situation and we support Minister Hussen and his department for recognizing the importance through the Rural Immigration Pilot Program.

For more information, please contact our office and book a consultation.

Bill C-97 – Changes to IRPA

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CONCERNS REGARDING PROPOSED CHANGES IN BILL C-97

Dear Sir or Madam:

On behalf of residents and organizations in Manitoba who deal directly with immigrants and refugees, we have serious concerns regarding the amendments proposed in Bill C-97. The focus of the comments below relate to the changes to the Immigration and Refugee Protection Act (hereinafter IRPA) specifically. On a procedural note, however, we have serious concerns with the way that the Liberal Government is pushing for significant changes to Canadian laws without proper parliamentary debate.

Genuine Refugees in Manitoba

The vast majority of refugee claimants in Manitoba enter our jurisdiction after they have started an asylum claim in the United States. These claimants are from many countries, including Somalia, Djibouti, Nigeria, Venezuela, the Democratic Republic of Congo. Based on our collective experience, most of these claimants are, in fact, successful with their claims at the Immigration and Refugee Board (hereinafter “IRB”) and they are found to be genuine refugees. The highly skilled adjudicators at the IRB consider the claims based on sections 96 and 97 of IRPA. In addition, they assess the credibility of the claimants and they consider evidence from the United States and any other country where they have sought protection.

The proposed changes to Section 101.1 of IRPA will significant affect many claimants in Manitoba. Claimants who have made a claim for refugee protection in the United States and any of the Five Eyes countries will not be eligible to have their refugee claims heard at the IRB. Instead, Bill C-97 proposes that these individuals will have a risk assessment done as part of a Pre-Removal Risk Assessment (PRRA).

We have concerns that the proposed changes will affect genuine refugees who are seeking the protection of Canada, in accordance with Canadian laws and our international obligations.

The Proposed Changes May be Unconstitutional

We have concerns that banning refugee claimants from the tribunal and, instead, having their risk assessment done by a PRRA Officer is unconstitutional and a breach of Charter Rights. As noted by the Supreme Court of Canada in the Singh decision, the previous system that involved public servants making refugee decisions was unconstitutional; hence, the creation of the IRB.

We have concerns that many claimants in Manitoba will be in long-term limbo. Foreign nationals who are coming from so-called “moratorium countries” may be banned from filing a PRRA application. If they are banned from both the tribunal as well as the PRRA application, they will be living in Manitoba in limbo. They cannot be removed to their home countries and they cannot easily regularize their status. These individuals may be forced to make applications based on humanitarian and compassionate circumstances per Section 25 of IRPA. Currently, the processing time for that application is 30 months and these people will be long-term limbo during this time.

Potential Impact on Mental Health

We have concerns that the mental health of refugee claimants is not being sufficiently considered. All of us seek to provide the necessary support for individuals in Manitoba who are coming from countries where they may have experienced trauma, torture or persecution. The IRB has robust measures, including Chairperson’s Guidelines and the Adjudicators receive significant training on dealing with vulnerable persons and individuals who have faced trauma.

We have concerns that the proposed changes to not adequately consider the potential negative impact on the mental health who are coming to Canada seeking protection.

Positive Change

We live in a parliamentary democracy, based on debate and discussion. We have concerns that Bill C-97 has been tabled without due process. We would support changes to IRPA that adequately consider the circumstances of the individuals and the families that we assist on a daily basis.

As Manitobans, we are proud of Canada’s humanitarian tradition and we work hard to build our communities based on diversity and multiculturalism. The refugee determination system in Canada must also reflect our values to properly consider each claim and assess the merits of refugee claimants according to our Charter of Rights and Freedoms.

Thank you for your time and consideration,

Alastair Clarke – Clarke Immigration Law

Abdikheir Ahmed – Immigration Partnership Winnipeg

Lisa Forbes – Amnesty International Canada

Louise Simbadumwe – Amnesty International Canada

Dorota Blumczynska – Immigrant and Refugee Community of Manitoba (IRCOM)

Dr. Shauna Labman – Assistant Professor of Law, University of Manitoba

Ghezae Hagos – Manitoba Interfaith Immigration Council

Bequie Lake – Manitoba Association of Newcomer Serving Organizations

Carol Reimer (IRCOM)

Yahya Samatar – Former Refugee

Razak Iyal – Former Refugee

 

Enhanced Travel Document

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The Manitoba government continues to provide “enhanced” documents that serve as alternatives to a Canadian Passport for crossing the border into the United States by land and/or water. In certain circumstances, this enhanced travel document makes it easy to travel between Canada and the USA. The enhanced features allow the individual to cross the border easily and efficiently.

Currently, the only Canadian provinces to offer the enhanced documents are Manitoba, Ontario and BC. As noted below, Ontario may be canceling their program in 2019. In my view, this document is a poorly understood and little-known document that is cheap and easy to get.

Features:

  • Alternative to a Passport;
  • Helps people cross easily over the border;
  • Less stuff in your wallet/ purse.

The Manitoba enhanced Driver’s Licence allows individuals to simply use their Licence to cross the border. We used to be able to do this when crossing into the USA; however, the laws changed so that regular (non-enhanced) Driver’s Licences are no longer sufficient to enter the United States:

By Land and Sea (including ferries) – Canadian citizens traveling to the U.S. by land or sea are required to present one of the travel documents listed below, and may generally visit the U.S. for up to six months. CBP will accept: Canadian passport, Enhanced Driver’s License/Enhanced Identification Card, NEXUS, FAST/EXPRES and SENTRI enrollment cards.

Ontario recently proposed to discontinue this service and they have eliminated this option:

Ontario is proposing to eliminate an enhanced driver’s licence that allows people to enter the United States at land and water border crossings without a passport.

The driver’s licence option was introduced in 2009, when the U.S. required passports or other secure identification for anyone crossing into the country by land or sea, but it hasn’t had the anticipated uptake.

British Columbia and Manitoba have enhanced driver’s licences, and Quebec used to, but phased out the program — other provinces rejected the idea because it was too costly or there wasn’t enough public interest.

If you or your contacts are interested in the enhanced travel document, please contact our office and we can help with the application.

Presentation on Labour and Immigration

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At the request of instructor Bill Mathieson in the School of Business, Alastair gave a presentation at BCIT in Vancouver on the intersection between labour laws and immigration, including LMIA applications and MPNP-BIS. In particular, the presentation focused on Charter rights and laws in Canada that intersect these different areas of law. Labour laws in Canada are complex and these laws have an impact on workers, businesses, employers and individuals. Each one of these categories may be subject to different laws and regulations.

labour

In particular, employers in Canada need to be aware of compliance issues and adhering to Charter rights. This was a presentation that was done spontaneously at the request of Bill and it was a pleasure to meet these students. The BCIT students were actively engaged with the topic and they are clearly well informed with some of the legal issues that they may face when they become HR Managers or other professionals in Human Resources.

If you or your company is seeking legal advice on the intersection between labour laws and immigration laws, please contact Clarke Immigration Law directly for assistance. 

Bill Mathieson is a senior lecturer with deep roots in Vancouver. He is one of Canada’s top labour negotiators and he has provided instruction to students at BCIT as well as SFU – School of Business.

Federal Court Success re MPNP and Misrepresentation

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Congratulations to our client Ievgen Agapi, a truck driver from Ukraine, and all the supporting people who assisted with this case. Justice Ahmed of the Federal Court of Canada agreed with our arguments that the Visa Officer in Kiev failed to consider whether the alleged misrepresentation was honestly and reasonably made. Click here to read the full decision.

This is a significant decision in the jurisprudence of misrepresentation, as well as the processing of MPNP applications.

In the words of Justice Ahmed:

14]  The Applicant points out that section 40 of the IRPA does not apply to misrepresentations made honestly by an applicant who reasonably believes they did not withhold material information (Medel v Canada (Minister of Employment and Immigration), [1990] 2 FC 345, Baro v Canada (Citizenship and Immigration), 2007 FC 1299 (CanLII) at para 15, and Goudarzi v Canada (Citizenship and Immigration), 2012 FC 425 (CanLII) at para 33). The Applicant submits that his response to the procedural fairness letter provided evidence that this exception applies to his alleged misrepresentation; he explained that the knowledge of the potential fraud was beyond his control and in his view he reasonably and honestly believed that he was not misrepresenting any material facts. Despite his response to the procedural fairness letter, the Applicant submits the Manager failed to consider whether any alleged misrepresentation was honestly and reasonably made.

[15]  The Respondent submits that the Applicant is merely “blaming” a third party for his misrepresentation and argues that efforts to get the original results were not before the decision-maker. The Respondent acknowledges that there is a “narrow exception” for innocent misrepresentation, but reiterates that it only applies in exceptional and narrow circumstance. The Respondent cites a line of jurisprudence for the proposition that misrepresentation made by a non-party to an application, without the applicant’s knowledge, does not save an application from an inadmissibility finding under section 40 of the IRPA. The Respondent also takes the position that the Applicant’s response to the procedural fairness letter did not meet the high standard to warrant such an exception.

[16]  I agree with the Applicant that the Manager failed to consider whether the Applicant honestly and reasonably believed he was not withholding material information.

CONGRATULATIONS TO EVERYONE WHO CONTRIBUTED TO THIS POSITIVE DECISION!

CBC National News: Loopholes

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Alastair was recently interviewed by CBC The National news on the topic of loopholes in the immigration system. There have recently been reports of individuals who are crossing at the Ports of Entry into Canada using a loophole in the law that was not widely known. These individuals are helping family members enter Canada through the loophole.

For the full interview, click here to watch this clip from CBC News.

From an immigration perspective, this so-called loophole is not new. It has always been in the law; however, based on the chaos and anti-immigrant sentiment in the United States, the loophole was rarely used by immigrants and refugee claimants who were in Canada. Prior to the current situation in the United States where many people from around the world recognize the pro-immigrant culture of Canada, they realize how Canada is much different from the United States.

We expect that the numbers of individuals and families who are crossing the border into Canada to increase as long as the US Government continues its rhetoric that shows discrimination and anti-immigrant sentiment.

In the meantime, we will continue to fight for our clients and make sure that everyone has their rights protected.

We continue to implore the government to suspend or repeal the Safe Third Country Agreement (STCA). We have been calling for change for almost 2 years when it became clear that the Agreement, and the loopholes within it, are causing unnecessary danger and risk to people simply seeking safety.