Monday, 27 December 2010

Justice and Forgiveness

Filipiniana News – December 2010
RHYME & REASON

Ten days before Christmas, the Supreme Court of the Philippines released a decision acquitting the accused in the 1991 Vizconde massacre due to the prosecution’s failure to prove their guilt beyond a reasonable doubt.  

Philippine newspaper accounts portray two contrasting stories and images:  that of the Webb and other accused family members’ rejoicing in the alleged vindication of their kin; and that of Mr. Vizconde’s anguished reaction over the alleged injustice committed against his family. 

Anyone could readily sympathize with Mr. Vizconde’s deep sorrow over what he perceived to be another “massacre” committed against his wife and daughters who were mercilessly killed almost two decades ago.  

For those who profess the innocence of the accused such as their families, it will be an equally grave injustice if Webb and his co-accused continued to be imprisoned after having already spent 15 years in jail for something that they believe they did not do.

It must be noted that the Supreme Court spokesperson himself clarified shortly after the ruling came out that the acquittal is not a declaration of the innocence of the accused.  The acquittal was simply based on the justices’ finding that the prosecution failed to discharge its burden of proving the guilt of the accused beyond a reasonable doubt.  The highest court of the land pointed out serious inconsistencies in the testimony of Jessica Alfaro, which was the main evidence used by the lower court in convicting the accused.   Since these inconsistencies were deemed to raise a “reasonable doubt” as to the guilt of the accused, the Supreme Court found that the conviction cannot be upheld. 

The acquittal cannot be made subject of a motion for reconsideration either as it will violate the basic criminal law principle against “double jeopardy.”

This may seem unfair especially to the families of the victims who may feel that too much “protection” is being given to the accused and a greater burden of proof falls on those who have already been seriously victimized in the first place.   That is, while “double jeopardy” of the accused is prohibited, the victims’ families feel that their “double victimization” is effectively tolerated.     

Unfortunately this line of reasoning fails to consider that the basic criminal law principles of proving one’s guilt beyond a reasonable doubt and the prohibition against double jeopardy form an important part of the due process requirements before anyone can be deprived of life, liberty or property.   These very same principles are even enshrined in the Constitution’s Bill of Rights to ensure not only that justice is served but also to avoid any potential abuse of power in the process. 

We may well be reminded that in criminal prosecutions, the accused is going against an entire state machinery, i.e. the law enforcers, government investigators and the prosecutors, all of which are paid for by the government to ensure that perpetrators of crimes are punished in accordance with the law. 

It is therefore reasonable to expect that these government agents will exercise their powers with the full government resources at their disposal, to gather all available evidence to prove the guilt of the accused with moral certainty, i.e. beyond a reasonable doubt.  Ideally, this requires thoroughness and objectivity in achieving the goal of punishing the guilty and absolving the innocent. 

Humans as we are, it is easy to be swayed by speculations based on media reports and other third hand information which tend to condemn suspected individuals in the court of public opinion even before they have been found guilty in the judicial courts.

Our criminal justice system however, is expected to rely on hard evidence that could overturn the presumption of innocence that anyone accused of a crime is rightfully entitled to.  Hence this recent Supreme Court decision which effectively serves as an admission that a serious injustice may have been committed against both sides.

Sadly, fifteen long years had to pass before our criminal justice system could realize that justice was not achieved in this particular case.  The prescriptive period for heinous crimes will prevent the filing of charges once the twenty-year mark (from the discovery of the crime)  is reached by June 2011.  By then, criminal justice will not only be statute-barred, but also becomes a lost opportunity.

When that occurs, the only option that may be left is forgiveness.  This may seem naïve or even defeatist.  But as human beings, we can only do so much.  If human justice cannot be achieved, surely Divine justice will ultimately prevail.  

A blessed merry Christmas and a prosperous new year to all!
The author is an immigration lawyer in Toronto and may be reached at deanna@santoslaw.ca. 

Saturday, 27 November 2010

Some thoughts on Bill C-49

Filipiniana News – November 2010
RHYME & REASON 

This year is turning out to be an extremely busy one for the government’s immigration portfolio. After numerous changes to the immigration law, regulations and implementing guidelines, here comes Bill, C-49, also known as the “Preventing Human Smugglers from Abusing Canada’s Immigration System Act”, which is being presented by the government as a measure to address the serious problem of human smuggling.

The bill is clearly a reaction to the arrival of a group of Tamil migrants aboard the ship Sun Sea in Vancouver in August 2010 less than a year after another group of Tamil migrants arrived in BC via the ship Ocean Lady in October 2009.  

The rhetoric following these arrivals were sadly filled with sweeping judgments against the migrants even before they were accorded due process within our refugee determination system.   These migrants who have all submitted refugee claims were branded as “queue jumpers”, “terrorists”, “human smugglers” and/or “human traffickers.” 

First of all, we need to clarify the distinctions between “human smuggling” and “human trafficking” as I often hear these two terms being used interchangeably in the ongoing debates.   These two terms, although closely related, are not exactly the same.  Generally, “human smuggling” is defined as the act of facilitating the illegal entry of a person into another territory in exchange for a direct or indirect financial or other material benefit.

“Human trafficking” on the other hand, is generally defined as the recruitment, transfer or harbouring of persons, by means of threat, coercion, fraud, deception or abuse of power for the purpose of exploitation (e.g. prostitution, forced labour, slavery).  Unlike human smuggling, trafficking of persons does not need to involve the crossing of international borders. 

Therefore, one may conclude that human smuggling is not as insidious as human trafficking in that the latter always involves the elements of involuntariness and exploitation while the former may not.  This is not to say however, that human smuggling should not be deemed as a serious crime.  Within the context of transnational organized crime, human smuggling is certainly wrong and ought to be criminally prosecuted.  However, if the so-called “human smuggling” is simply done with the goal of saving the lives of those who are fleeing persecution, then I am not sure that we should be as quick to condemn the act of “human smuggling” within this context.  Lawmakers should therefore be careful in distinguishing these two types of crimes lest the public be misled into thinking otherwise.   

Meanwhile, Bill C-49 has been the subject of intense criticism due to the following:  

Under Bill C-49, refugee claimants, including women and children, who arrive in Canada by boat with the help of human smugglers will be subject to mandatory one-year detention without a review.  This is a clear violation not only of international human rights standards but also of the Charter prohibition against arbitrary detention as recently affirmed by the Supreme Court of Canada in the 2007 case of Charkaoui v. Canada.

If a detained refugee claimant is eventually granted refugee status, Bill C-49 proposes that they cannot apply for permanent residence hence unable to sponsor family members, for five years.  With the current immigration processing delays, this could lead to lengthy periods of family separation lasting 7 to 10 years or even longer.

Accepted refugee claimants will not be granted travel documents nor be allowed to travel anywhere thus violating their rights provided by the United Nations Refugee Convention and other relevant human rights treaties. 

Contrary to the general perception that Bill C-49 only deals with human smugglers and  refugees, it is worth noting that it also proposes to give the government the power to arrest any non-citizen (including permanent residents) based on mere suspicion of criminality, and to detain them indefinitely while the investigation is ongoing. 

The proposed bill also takes away the right of appeal for refused refugee claimants, a remedy that was recently put in place through the Balanced Refugee Reform Act enacted just a few months ago.

The only provision in Bill C-49 which directly pertains to human smugglers is that which proposes a mandatory minimum sentence for those found guilty of the crime of human smuggling.   
 
The government’s response to human smuggling therefore mainly involves the imposition of stricter measures  against smuggled people because they allegedly encourage the growth of this activity by paying the smugglers.  The logic then is that, if the “consumers” are “punished” they will think twice if not avoid using smugglers altogether, ergo, smugglers will lose business instead of flourish.

Unfortunately, human migration is a complex reality which could not simply be addressed by pure logic.  What then is the alternative?

Full respect for human rights.  Promoting socio-economic development in poverty-stricken nations.  A healthy dose of compassion and generosity towards the less fortunate.   These are  indispensable elements of Canada’s proud humanitarian tradition and must therefore be part of any proposed solution.
The author is an immigration lawyer in Toronto and may be reached at deanna@santoslaw.ca. 

Wednesday, 27 October 2010

Dealing with an Imperfect System

Filipiniana News – October 2010
RHYME & REASON

A few days ago, I have viewed euphoric scenes of the miners rescued in Chile after having been trapped underground for two months.   It was fascinating to see how millions around the world watched with great anticipation the dramatic rescue of each miner who came out of a narrow tube, one person at a time, every half hour or so.  The miners’ determination to survive, the rescuers’ heroic efforts and everybody else’ refusal to give up hope all undoubtedly contributed to a triumphant outcome. 

The nightmare endured by the miners during those two months reminded me of a recent observation made by an advocate who characterized caregivers with complex immigration problems as being “trapped in a system that can never be perfect.”  

Indeed, the immigration system is far from being perfect.  As such, it can be quite easy to fall into a  seeming trap (or blackhole) for months and even years on end.  However, this should not  lead to complacency and/or helplessness.  Instead, this reality should encourage us to come up with efficient and creative ways of dealing with such a system, imperfections and all.  

In my immigration law practice, I have often encountered situations where clients were prejudiced by errors committed not by them, but by the frontline immigration officers or clerks handling their files.   The errors could simply be typographical:  e.g. that their personal or contact information were wrongly entered or that the notices were sent to the wrong address.   Or they can consist of unexplained processing delays in the issuance of decisions or of visas and landing documents  long after a positive decision has been rendered.  Or they can be substantial:  e.g. arbitrary decisions, or  reasons for refusal which vary from one officer to another especially in applications which involve the exercise of an officer’s discretion, that it often becomes difficult to predict application outcomes despite what the law, regulations or judicial precedents provide.

Typographical errors can often be dealt with most easily by correcting them at the earliest opportunity.   Pointing out these errors to the appropriate office should be simple enough if the applicant realizes the mistake earlier on.  A bigger problem could arise when the communication from CIC is never received because it was sent to a wrong address.  One way to avoid this problem is to regularly check with the CIC call center or follow up directly with the office concerned if a decision is not received within the “normal” processing times that are published on the CIC website.  By doing so, the applicant will eventually learn if a communication has been sent to him/her and to let CIC know if it was never received.

Procedural delays, on the other hand, are clearly part of a bigger problem within the government bureaucracy and is something that needs immediate reform.  However, further delays can be reduced if not avoided when one submits as “complete” an application package as possible and makes full disclosure of all relevant information to avoid the need for CIC to require further submissions. 

In the case of substantial errors (or procedural errors resulting to violations of natural justice), the remedies could include making a request for reconsideration, invoking a statutory right to an appeal or submitting a judicial review application with the Federal Court.  These procedures have specific legal requisites and limitations and will not necessarily lead to desired outcomes.  At the very least, they give one a second kick at the can from the perspective of another adjudicator, judge or decision maker. 

It cannot be overemphasized that one needs a healthy dose of patience and perseverance when dealing with our immigration system.  One should thus avoid contributing to the problem by failing to be thorough, honest and judicious in all submissions or representations made.  At the same time, we need to remain vigilant and persistent in advocating for positive change until our messages are fully heard and acted upon.

Even though we might sometimes find ourselves seemingly trapped and totally discouraged, taking proactive steps to address the issues is the only way forward.  When we always try our best to overcome struggles within an imperfect system, we will remain perfectly confident and hopeful that things can only get better. 

This is true in immigration as in life, as the rescued Chilean miners have triumphantly shown.

The author is an immigration lawyer in Toronto and may be reached at deanna@santoslaw.ca. 

Monday, 27 September 2010

Recent Changes to the Temporary Foreign Worker Regulations

Filipiniana News – September 2010
RHYME & REASON

Recent changes introduced to Canada’s Immigration and Refugee Protection Regulations relating to temporary foreign workers (TFW) have been raising a lot of fear and confusion within the caregiver community. 

Foremost of these fears is the persistent rumor that “live-in caregivers are not anymore eligible to apply for permanent residence in Canada”.  Another is the speculation that live-in caregivers will be deported to their home country if at the end of four years, their permanent residence applications under the live-in caregiver class have not been granted.

What really is the current state of the law as far as LCP participants are concerned?  What are these recent changes which have brought much confusion to many?

Since I have already summarized the administrative and regulatory changes to the LCP in my April 2010 column, I am simply summarizing below the recent regulatory changes to the temporary foreign worker program, and the relevant clarifications received from CIC.

In August 2010, CIC announced and published the revised Immigration and Refugee Protection Regulations which affect TFWs in general and are set to take effect on 1 April 2011.  The CIC website summarized the changes as follows:
  • a more rigorous assessment of the genuineness of the job offer;
  • a two-year prohibition from hiring temporary foreign workers for employers who fail to meet their commitments to workers with respect to wages, working conditions and occupation; and
  • a limit on the length of time a temporary foreign worker may work in Canada before returning home.
The new regulations will screen prospective employers more strictly in that those who were found to have violated workers’ rights or failed to meet their employer obligations in the past will be placed on a “blacklist” and will not be allowed to hire or sponsor any foreign worker for a period of two years. 
The most controversial part of the new regulations however is the new four-year cap on the TFWs’ temporary employment in Canada.  At the end of four years, the TFW will have to leave Canada and can only reapply for a new work permit after another four years have passed.  It must be noted that this limitation stated in Section 200(3)(g) of the new regulations also provides for a couple of exemptions if:
(ii) the foreign national intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents, or
(iii) the foreign national intends to perform work pursuant to an international agreement between Canada and one or more countries, including an agreement concerning seasonal agricultural workers;

The above exemptions however, do not expressly specify LCP participants as among those meant to be included in their scope.  Hence, the persistent fear that after four years of working on LCP or open work permits, LCP participants may not anymore be allowed to stay in Canada to await the processing of their permanent residence applications or worse, that their permanent residence applications will be refused once they are forced to leave Canada at the end of their maximum four-year stay as TFWs. 

After sending an inquiry to CIC to clarify this matter, we received the following response:  

Operational guidelines, that provide more specific information including for all exemptions to R200(3)(g), are being developed and will be available to potential participants prior the regulations coming into force April 1, 2011. Consideration for exemption is being given to various categories of temporary foreign workers, including live-in caregivers.

Preliminary thinking is that it is not expected that R200(3)(g) would affect participants in the live-in caregiver program who have applied for permanent residence.  We are developing guidelines to identify exemptions to the R200(3)(g) requirement, and anticipate that applicants for permanent residence, or those who have applied for permanent residence and received approval in principle, will be excluded. That would mean that once a live-in caregiver has two years of work experience and applied for permanent residence/received approval in principle, the four-year maximum would not be applicable.
The live-in caregiver program is designed to allow its participants to apply for permanent residence well before they would reach the maximum four years of non-permanent status.   As you know, the Government of Canada has recently made it easier for live-in caregivers to become permanent residents by allowing up to four years to accumulate two years or 3900 hours of work experience.    The regulatory change to the Temporary Foreign Worker Program R200(3)(g) is not intended to diminish the changes made to the Live-in Caregiver Program in April 2010.
The above statements were confirmed in the following further clarification from CIC policy officials:
There are two exemptions to the four-year cumulative duration provision, as identified in S200(3)(g) of the amended regulations: for work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents, or for work pursuant to an international agreement between Canada and one or more countries.  More specific information will be provided in the form of operational guidelines. These are being developed and will be available prior to the regulations coming into force April 1, 2011.
With regard to those temporary foreign workers who have applied for permanent residence, the intent of the regulatory amendments is not to require applicants for permanent residency to leave the country. It is likely that a temporary foreign worker, whether employed as a live-in caregiver or in another capacity, who has applied for permanent residency will qualify for an exemption pursuant to section 200(3)(g) of the regulations, until such time as a decision on the application for permanent residency has been made. Full details will be available in the operational guidelines referred to above.
These responses should serve to at least assuage fears that LCP participants will be negatively affected by the recent regulatory changes affecting temporary foreign workers in general.  Aside from the need for continuing vigilance to ensure that the operational guidelines will truly benefit LCP participants, we also need to keep in mind that these changes are only as good as their proper and fair implementation. 

Therefore, the campaign towards the full realization of substantive reforms on behalf of long disadvantaged caregivers needs to continue.  For now, we should preserve the gains achieved so far not only by continued vigilance but also by arming ourselves with the proper information instead of relying on rumors and speculation.

The author is an immigration lawyer in Toronto and may be reached at deanna@santoslaw.ca.

Friday, 27 August 2010

Family Separation in the Immigration Context

Filipiniana News – August 2010
RHYME & REASON

Although the issue had arisen in the past, sponsorship fraud was in the news again quite recently after a number of Canadians who sponsored their foreign spouses publicly decried the fact that the latter only married them for purposes of gaining immigration status in Canada.   Unfortunately, the sponsored spouses have already  been granted permanent residence and the sponsors cannot simply revoke the three-year undertaking to support that they submitted with the sponsorship application.  As much as they would  want these alleged fraudsters deported immediately, there are processes which need to be undertaken before this can be done.

At the other  end of the spectrum are couples in genuine, committed and loving relationships who are suffering from long-term separation due to the immigration officer’s often perceived overzealousness in disputing the genuineness of a marital relationship, usually by cross-examining the spouses during their  visa interviews.  There is hardly any consideration given to the fact that the “failure” in such interviews can often be attributed to language barriers, nervousness or even cultural differences or misunderstanding.  

But how does one truly gauge the genuineness of a relationship and what evidence could be presented to prove that it is genuine and not entered into simply to obtain permanent residence in Canada?   Unfortunately, this is not an exact science and there is no infallible way to do so.   Until such a foolproof way is devised, it is rather unfair that the genuine spouses will bear the brunt of the growing suspicion against potential sponsorship fraud.  To avoid being caught in this unfortunate trap, it is very important that spousal sponsorship applications are not only comprehensive and thorough, but also presented in such a way as to avoid any doubt or confusion on the part of the reviewing officer.   CIC on the other hand, should provide further training to their officers that will inculcate better understanding of cultural differences and personality types that will avoid a one-size-fits-all standard for determining the genuineness of a relationship.

Aside from failed sponsorship applications, there is another type of family separation which had long been cruelly and pervasively affecting many prospective permanent residents.  These often involve live-in caregivers who initially enter Canada on work permits and are not allowed to bring their families with them in the meantime.  It is only after having satisfied the requirements of the program (two years of full time live-in caregiving work) would they be able to apply for permanent residence for themselves and their families, which could easily take an additional few more years to be processed.

It must be noted that in this permanent residence application, the caregiver is applying concurrently with her family members and not “sponsoring” them.  As such, they are all required to pass the medical and security clearance requirements.  Although recent changes to the LCP regulations removed the requirement of a second medical examination for the caregiver herself, the accompanying family members would still need to undergo the medical and security checks at the permanent residence application stage.    Even if the family members are declared to be “non-accompanying dependents”  they are still required to undergo medical and security checks  -  and if one family member is found to be inadmissible in the process, this would render everyone, including the principal applicant caregiver, inadmissible to Canada. 

There are all sorts of complicated situations that could arise from this requirement.   First and most prevalent of all, a married caregiver who has been away from her family for many years while working as an overseas domestic worker, often ends up with a broken home – i.e. a philandering spouse and/or alienated children who refuse to finish school or become addicted to vices.   When it is time to process the family’s permanent residence applications, these family members could either refuse to undergo the required medical examinations, provide the necessary police clearances or worse, fail them for all sorts of reasons.   For caregivers who have become estranged from their husbands, they would also need to obtain a legal separation, annulment or divorce if they want them removed from their permanent residence applications altogether.  As these are legal processes which could take time and financial resources, many caregivers find themselves trapped in a situation where their permanent residence applications are delayed or even denied, if they and their dependents are unable to meet these additional requirements within a reasonable time.  

The conflict of law issues arising from the differences in Philippine and Canadian and family laws (e.g. lack of divorce and prohibition against collusion in annulment cases in the Philippines) could result in further complications not only in the caregivers’ permanent residence applications but also in the legal status of their marriage and family lives.   While obtaining a divorce in Canada or entering into a separation agreement with spouses may be a quick solution for some in having their permanent residence applications finalized, it is also important to be fully aware of the implications of such remedies, which could haunt the spouses even long after the permanent residence application has been granted or denied.  

So whether one is dealing with sponsorship fraud, an unfairly refused sponsorship application or the inadmissibility of a dependent in a caregiver’s permanent residence application, prolonged and indefinite family separation is almost always an unwanted result.   This clearly contradicts one of the main objectives of Canadian’s immigration law which is that of “family reunification.”

These unfortunate situations are just a few indications that our immigration system is quite broken and needs  a lot of repair (not least of which is the granting of permanent residence to caregivers upon arrival).   Meanwhile, there are still matters which are well within one’s control that could help prevent such unpleasant outcomes.  For one, choose your spouses prudently.   Then choose your immigration legal advisers wisely.   Hopefully, more happy endings will follow.

The author is an immigration lawyer in Toronto and may be reached at deanna@santoslaw.ca. 

Tuesday, 27 July 2010

The Ever-Changing Immigration Guidelines

Filipiniana News – July 2010
RHYME & REASON
  
Minister Kenney is being touted as one of the most, if not the most hardworking, immigration ministers that Canada has ever had.  This can be attributed not only to his extremely high visibility in media and community events but also to the successive reforms that he has introduced and implemented in the less than two years that he has been appointed as head of Citizenship and Immigration Canada (CIC). 

After having introduced reforms to the LCP and the refugee application process, he has once again proposed revisions to the ministerial guidelines with respect to those applying for permanent residence in Canada under the federal skilled worker and immigrant investor categories.

The changes to the skilled worker applications took effect on 26 June 2010.  One of the main changes was the reduction of the list of in demand occupations from 38 to 29 jobs.
Those who wish to apply under the federal skilled worker category must either have arranged employment in a NOC O, A or B occupation (managerial, professional and some skilled trades) or must have at least one year work experience in one of the 29 identified occupations.

What used to be a third class under this category – those in Canada on work or study permits, had been eliminated, because it was deemed to overlap with the Canadian Experience Class (CEC) and Provincial Nominee Program (PNP) categories.  Unfortunately, this third class would have allowed those who are in Canada on “low-skilled” work permits (NOC C and D) a chance to apply for permanent residence as long as they have had at least one year work experience within the last ten years in a NOC O, A or B occupation.  With this recent change however, this possibility appears to have been eliminated, unless the foreign worker falls under the two remaining classes.  It must be noted that the CEC class only credits work experience in an occupation falling under the NOC O, A or B categories.  While there are semi-skilled worker categories in some PNPs, these are mainly employer-driven categories and end up being granted to a very select few.

Moreover, CIC will limit the number of complete applications that will be processed under the 29 occupations to 20,000 annually, with a cap of up to 1,000 per occupation.  There will be no limit imposed however, to those applications with arranged employment (again in a NOC O, A or B occupation).

Another change introduced is the mandatory official language test requirement for all applicants, regardless of country of origin.  According to CIC, this change is meant to help speed up processing by allowing a more objective weighting of one’s language skills based on the actual test results.  This has become rather controversial as it is perceived to place an unnecessary burden on applicants from English or French speaking countries, or even on highly educated applicants from other countries who are extremely fluent in these two official languages.

In the immigrant investor category, CIC has proposed an increase of the net worth requirement to $1.6 million (from $800,000) and the investment requirement to $800,000 (from $400,000).  CIC has stopped receiving applications under this category (if postmarked after 26 June 2010) to help reduce the current backlog and prevent a surge of new applications before the new rules take effect.

CIC has justified these changes as measures intended to reduce the growing backlog of immigration applications while trying to meet Canada’s labor market needs. 

Critics have expressed concern that the seemingly growing emphasis on economic considerations may lead to a neglect of the other aspects of Canada’s immigration policy, namely that of family reunification and other humanitarian and compassionate considerations.  Despite assurances from CIC, the impact and outcome of recent changes have yet to prove that this will not be the case.

In any event, we are at least thankful that we seem to finally have a CIC minister who is willing to listen to stakeholders and work with different political parties in achieving a truly balanced and fair process for everyone concerned.  Let us hope that these efforts continue, along with the humble admission that some reforms may not have gone far enough, or that they may have inadvertently failed to meet their avowed objectives or adapt to the ever-changing socio-political and economic climate.  Hence the need to constantly listen to, and consider further suggestions for reform.

In Canadian immigration, as in life in general, the only thing that seems constant is change.


The author is an immigration lawyer in Toronto and may be reached at deanna@santoslaw.ca. 

Sunday, 27 June 2010

Misrepresentation in the Immigration Context

Filipiniana News – June 2010
RHYME & REASON

Misrepresentation in the context of immigration law can be a tricky concept.  Hence, many are often caught by surprise when told that they are inadmissible to Canada on this ground.  They learn too late that some act or omission they were not completely aware of, or some seemingly innocent wrongful declaration could either result in a denial of their immigration application, or worse, the stripping of their permanent resident status.

In Canadian immigration law, misrepresentation is defined as “directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the act.” 

The words “directly or indirectly” imply that the act of misrepresentation may have been committed by the applicant/permanent resident or by other people.  Since indirect misrepresentation still appears to be a largely misunderstood and prevalent issue, I would like to focus on this type of misrepresentation in this column.

In view of the above definition, the unscrupulous act of a representative such as placement agents may prejudice an applicant regardless of the latter’s lack of knowledge of the misrepresentation committed.  The real culprits on the other hand, often avoid punishment or retribution owing to their Canadian citizenship status and/or by the often protracted, complex and expensive judicial and other modes of seeking redress.

A situation that many prospective caregivers to Canada find themselves in is that of being  “released upon arrival”.   This means that the caregiver actually has no employer upon arriving in Canada because the sponsoring employer either does not exist or does not anymore require the services of the employer.   Regardless of the reason, Canada Border Services Agency (CBSA) officers can find the caregivers in these situations guilty of misrepresentation because they are assumed to have misrepresented about the non-existence of the employer named in their work visas.   In many cases however,  these prospective caregivers are not aware of the placement agencies’ apparent modus operandi of asking “employers” to sign the employment contracts and LMO applications even though these “employers” have no intention of hiring the caregivers in the first place.  When the caregivers hired by these agents arrive in Canada on a work permit, they are immediately “released” by the original “employers” and made available by the placement agencies to other genuine employers who wish to hire caregivers pronto.   These genuine employers usually do not want to wait the several months (or even as long as two years for caregivers coming directly from Manila) that it takes for LCP work permit applications to be processed.  To address the great demand for instant live-in caregivers therefore, the highly-competitive world of caregiver placement agencies shrewdly came up with the concept of “released upon arrival” caregivers.  The more caregivers they have in their pool, the quicker they can meet the demands of Canadian employers for a readily employable caregiver.  

Another way by which some people are unknowingly caught in the “misrepresentation” trap is when earlier on in their original immigration applications, immigration consultants or representatives advise the applicants (or do so on their own without even notifying the applicant) to remove the names of other dependents or family members or misdeclare marital status to supposedly avoid delays or complications in the applications.  All might seem well and the permanent resident visas are issued, until the time that the permanent resident decides to sponsor other family members – when the immigration officer reviewing the file realizes that the dependent or family member was previously not declared in the sponsor’s original application or that the marriage was not disclosed.  Since these types of misrepresentation are deemed “material”, these could lead to inadmissibility proceedings against the permanent resident aside from the refusal of the sponsorship application under Section 117(9)(d) of the Immigration and Refugee Protection Regulations. 

It is therefore strongly advised that to avoid being caught in the “misrepresentation” trap, applicants must be very wary of advisors or consultants who advise prospective immigrants to lie in their applications, to manipulate or misdeclare facts and/or submit falsified documentation.   If these advisors are advising these to simplify your application and reduce work for themselves, then they are not truly representing your best interests.  

For prospective caregivers and those with family members from overseas applying as live-in caregivers in Canada, it will be best to advise them to ensure that the employment contracts are genuine and with terms that are in accordance with Canadian labour standards.  To confirm these, the caregivers should be able to communicate with their employers directly to ensure that they are aware of the possible long processing times, and are nonetheless intending to hire the caregiver upon the issuance of the work visa.   Only then can the caregiver be better assured that the immigration officer will issue the work permit upon arrival at the border, after having been convinced of the caregiver’s, as well as the employer’s genuine intentions. 

Meanwhile, there is clearly a fundamental injustice in a system which perpetrates further victimization (i.e. caregivers being deported due to indirect misrepresentation) and impunity for those directly responsible (i.e. the placement agents who facilitated the fake employment contracts or committed the misrepresentation).  Therefore, the government must be equally vigilant in prosecuting and discouraging these unscrupulous practices which take advantage of the applicants’ earnest desire to work in or immigrate to Canada.   

CBSA officers often justify their strict enforcement actions as simply  meant towards “preserving the integrity of Canada’s immigration system.”   I am not sure that this objective is truly met if their actions are focused on punishing the victims while the culpable ones remain scot-free.  Hopefully, the recent legislative proposal to crack down unscrupulous practices by “crooked consultants” will effectively address this terrible injustice.

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca. 

Thursday, 27 May 2010

Visitor Status to Permanent Residency: Some Clarifications

Filipiniana News
15 May 2010

Since the last time I wrote on this subject a couple of years ago, I continue to receive inquiries on how to “convert” one’s visitor status into a work permit or permanent resident visa while remaining in Canada.   Apparently, there are still those who assume that once they are able to obtain a visitor visa to enter Canada, it would be much easier to work on their “papers” while inside the country rather than to submit their permanent resident applications from overseas.  It does not help that the current processing times for permanent resident applications are still taking a number of years to complete.  Any potentially quicker alternative therefore becomes a much more attractive option for many.

Depending on one’s personal circumstances, the above assumption may not necessarily hold true and in some cases, prove to be utterly false.   It often becomes a source of disappointment and/or frustration for many to realize that converting one’s status from a visitor to a worker or permanent resident is not as simple as they may have initially thought.   Hopefully, the following will help clarify some of the misconceptions.

Visitor status is allowed only for a maximum period of six months at a time, regardless of the validity period of one’s temporary resident visa.  One can however apply for an extension, which may or may not be granted depending on the personal circumstances of the applicant.  While the extension application is pending, one is deemed to have implied status, provided that the application was submitted prior to the expiry of the initial authorized stay.  But as soon as a decision is received and the extension application is refused, the applicant is deemed to have lost status and must leave Canada immediately.

To convert one’s visitor status into a work permit on the other hand, one must first obtain a genuine job offer from a Canadian employer.  The Canadian employer will then have to apply for a confirmation of the job offer (a positive labour market opinion or LMO) from Service Canada. The confirmation will be granted if the reviewing officer is satisfied that certain factors are met, including the genuineness of the job offer, that sufficient recruitment efforts were undertaken to hire Canadians and permanent residents for the position and that there is a current labour market shortage that the foreign worker is seeking to fill.  Once an LMO is granted, the foreign worker may use this to apply for a work permit.   

An initial work permit application however, must be submitted at a visa office or at a port of entry.  The option of applying at a port of entry is only available to applicants coming from visa-exempt countries.   Since the Philippines is not a visa-exempt country,  Filipino work permit applicants who are in Canada on a visitor visa must apply at the nearest visa office, i.e. the U.S..   If called for an interview, the applicant must be able to travel to the U.S. on the scheduled interview date.  This often becomes a problem if the applicant has no U.S. visa as it can prove difficult to obtain a U.S. visa from Canada if one does not have permanent resident (or at least a worker or student) status here.   Therefore, it may be a smart move to also obtain a U.S. visa from Manila (where one has permanent status and clear proof of establishment) prior to coming to Canada if one plans to eventually apply for a worker, student or permanent resident status. 

There is also the option of applying for a student visa once the applicant has received an acceptance for full time studies from an accredited educational institution for a period of at least six months.  Similarly, an initial study permit must be applied for at a visa office outside of Canada. 

The option of applying for a work permit, study permit or to change conditions from within Canada is generally available only to those who initially entered Canada on valid work or student visas and later wish to renew the same.  

Applications for permanent resident status are generally submitted to visa offices where the applicant is a national and/or has been legally residing for at least a year.  Recent amendments require that initial application packages (completed forms and fees) for all federal skilled worker applications must be submitted to the Central Intake Office (CIO) in Sydney, Nova Scotia which conducts the initial screening of these applications.  Once approved by the CIO, the applicant is given 120 days within which to submit the complete application package to the appropriate visa office.

Inland permanent resident applications on the other hand, are only allowed for those falling under the Live-in Caregiver Class, the Spouse or Common Law Partner in Canada class, the Permit holder class, Refugees and Protected Persons, and those seeking permanent resident status based on Humanitarian and Compassionate grounds.  It must be noted however, that there are specific legal requirements for each class which may not necessarily be met by all permanent resident applicants.  Please be wary of any advice received which encourages lying or making up stories to qualify under any of the inland categories.  Misrepresentation is a serious offence under Canadian immigration law.  It could lead to removal proceedings even long after one has obtained permanent resident status or even Canadian citizenship.

It is therefore strongly advised that one must think and assess the situation very carefully before resigning from one’s job or selling everything one owns in the home country after obtaining a temporary resident visa to visit Canada.  A temporary resident (visitor) visa is not a guarantee to obtaining long-term legal status in Canada.  Please do not be misled by claims to the contrary.

Finally, please note that the above is meant for information purposes only and not to provide specific legal advice.  If you wish to inquire about your particular situation, please contact a licensed immigration lawyer or consultant. 

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca

Tuesday, 27 April 2010

Summary of LCP Changes Effective April 1, 2010

Filipiniana News - Rhyme or Reason
April 2010                               

Nearly four months after Minister Jason Kenney’s announcement in December 2009 regarding the changes to the Live-in Caregiver Program (LCP), Citizenship and Immigration Canada (CIC) finally released the implementing guidelines for these changes which took effect on April 1, 2010.  A summary of these guidelines follow.  

Administrative Changes

The following changes affect the processing of LCP work permit applications where the related applications for a labour market opinion (LMO) are received by Service Canada on or after April 1, 2010.   These changes mainly pertain to the additional requirements in the signed employment contracts between the live-in caregivers and their employers.  Under these changes, the prospective employers must agree to pay for the following benefits in favor of their prospective caregivers:
·         transportation to Canada from the live-in caregiver’s country of permanent residence or their country of habitual residence to the location of work in Canada
·         medical insurance coverage provided from the date of the live-in caregiver’s arrival until he or she is eligible for provincial health insurance
·         workplace safety insurance coverage for the duration of employment  and
·         all recruitment fees, including any amounts payable to a third-party recruiter or agents hired by the employer that would otherwise have been charged to the live-in caregiver.

In addition to the old requirement of specifying the job duties, hours of work, wages, accommodation arrangements (including room and board), holiday and sick leave entitlements, LCP contracts are now required to include provisions on termination and resignation terms. The CIC and Service Canada websites provide a new sample contract for this purpose which outlines the above requirements in great detail.  

Regulatory Changes  

The regulatory changes on the other hand, mainly pertain to two aspects of the LCP permanent residence application: the medical examination and employment requirements. 

A. Removal of the Second Medical Examination

The new regulations provide that those who will or have applied for their initial LCP work permits (from a visa office outside of Canada) will, as a rule, not anymore be required to undergo a second medical examination.  Instead, the medical examination conducted when caregivers apply for their initial LCP work permits will become more extensive in that it will include not only an examination of health condition that could pose a risk to Canadian society but also that which could potentially trigger an excessive demand on health and social services in Canada.

However, it must also be noted that: “Officers retain the discretion to request a medical examination at the application for permanent residence stage…. Instructions regarding the basis for requesting medical examinations at the application for permanent residence stage over the longer term will follow. These instructions will be designed to ensure that, over the long term, such requests will be rare and the exception to the rule.” (Operational Bulletin 192, 1 April 2010)
In the event that a live-in caregiver is required to undergo a second medical examination as part of the LCP permanent residence application, and it appears that the medical examination results could lead to a refusal of the application, “officers are encouraged to take a generous view” of requests for exemption from inadmissibility or written requests for consideration on humanitarian and compassionate grounds.
B. Extension of LCP Employment Period to Four Years and 3,900 Hours

The second regulatory change is two-fold: a) live-in caregivers now have four years (instead of three) within which to complete the two years of full time caregiving employment within a Canadian household;  and that  b) the two-year full time caregiving requirement can now be met by proving either 24 months of full–time live-in caregiving work or 3,900 hours of live-in caregiving work within a minimum period of 22 months (but which may include only a maximum of 390 hours of overtime work). 

If the caregiver chooses to satisfy the employment requirement by proving 3,900 hours of live-in caregiving work, the following documentary requirements must be submitted with their LCP permanent residence applications:  a) timesheets signed by current and previous employers clearly indicating the date and number of hours worked for all overtime hours claimed; and b) the new Live-in Caregiver Employer Declaration of Hours Worked (IMM 5634) form completed and signed by current and previous employers. 
Implementation and Continued Advocacy 
While these changes will surely benefit many LCP participants, it remains to be seen if these will indeed result in reducing if not eradicating the problems arising from this program.   As is well known, strict enforcement of well-meaning legal reforms is often an entirely different story. . 

Since the LCP work permits are still employer-specific, the caregivers’ immigration status still conditional and precarious, and their dependents remain subject to criminal and medical checks at the PR application stage, I can already foresee the many issues which may still  arise despite these changes.  Although a request for humanitarian and compassionate consideration is one possible remedy to address issues that were not anticipated by these changes, the final decision on such requests is still discretionary hence still quite unpredictable.

Therefore, even as we are very grateful for these recent changes, more work needs to be done in terms of achieving comprehensive, meaningful and lasting reforms for the long disadvantaged caregivers.  

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca.  

Saturday, 27 March 2010

Visas and Permits – Some Clarifications

Filipiniana News - Rhyme or Reason
March 2010

*Please note that this and all other legal articles that I have written in this column are strictly meant for legal information purposes only and not intended to serve as specific legal advice.  If you have related concerns, it is strongly advised that you consult with a lawyer or paralegal licensed by the relevant provincial law society to discuss your particular situation.*

A previous article that I wrote on this topic almost three years ago was published on the web without my permission.  Incidentally, I made an inaccurate statement in that article which I would like to clarify here.  Contrary to what I wrote then, a single entry visa to Canada will not prevent the visa holder from re-entering Canada if the visa-holder has traveled solely to the United States (or to St. Pierre and Miquelon) as long as the person returns to Canada prior to the expiry date on his or her visitor record.  The immigration regulations state that even if one’s temporary resident visa has expired but there is still a valid work permit, study permit or visitor record, the person traveling solely to the United States (or SP & M) can re-enter Canada within the validity period of the study permit, work permit or visitor record.  For greater clarity, I am reproducing the rest of my previous article below.

Temporary Resident Visa  (TRV)

Under Canadian immigration law, the document issued to allow a person (from a non-visa exempt country such as the Philippines) to enter Canada is called a temporary resident visa or a TRV.  This is the document that is stuck on a page of one’s passport.  The TRV could be issued for a single entry or for multiple entries.  If it is a single entry TRV, then it expires soon after it is used to enter Canada, even if the expiry date indicated on the document has not passed.   If it is a multiple-entry TRV on the other hand, the person may enter and re-enter Canada until the expiry date indicated on the visa.

However,  the issuance of a TRV by a Canadian consulate or visa office abroad (please note that only consulate offices abroad may issue TRVs) is not a guarantee that a person will be allowed to enter Canada.   The TRV holder would still have to satisfy the immigration officer at the Canadian port of entry that he or she will leave Canada at the end of the authorized period of stay.   Once the port of entry officer is satisfied, the usual maximum stay that is granted to a temporary resident is six months, unless a longer period is justified, such as a longer period of study or work.   If the officer is not satisfied that the person will leave Canada after the temporary period of stay or deems the person inadmissible on medical or security grounds, then the person may still be refused entry to Canada.  Yes, even with a valid TRV.

The TRV is issued to anyone who is entering Canada on a temporary basis, whether as a visitor, a student or a worker. 

Visitor Record, Work or Study Permit

The additional document that is issued by the immigration officer at the port of entry is called the visitor record, work permit or study permit, depending on the purpose of one’s temporary stay in Canada.   This is the piece of paper with the annotation: “This document is not valid for re-entry.” 

An extension of any of these types of permits may be applied for from within Canada with the caveat that it is only a permit to stay, work or study in Canada.   The TRV on the other hand, which is the document allowing entry to Canada, is not automatically extended along with the visitor record, work or study permit.  This then results in people having valid visitor records, work or study permits but whose TRVs have expired.   Once they leave Canada, they will have to re-apply for a TRV to re-enter Canada even if their study or work permits are still valid.

Other permits and visas

There are other types of immigration documents which could even add to the confusion.  For instance, there is the temporary resident permit (TRP) which is a permit issued to temporary residents who are deemed inadmissible but are allowed entry based on “compelling reasons”.   There is also the permanent resident (PR) visa which is issued to people who are granted permanent residence in Canada.  Once the person “lands” as a permanent resident in Canada, the permanent resident visa expires and the person is issued a Record of Landing or Confirmation of Permanent Residence document.  The Permanent Resident (PR) card then takes the place of a TRV when a permanent resident leaves and wishes to re-enter Canada.  The possession of a PR card however, does not guarantee the retention of one’s PR status.  The validity of one’s PR status will depend on whether one has satisfied the residency requirements and/or is found inadmissible for some reason, e.g. for having committed a crime or  made any type of misrepresentation to Canadian immigration authorities.

There, in a nutshell are the basic differences between the various documents issued by Canadian immigration authorities.  Meanwhile, we can only hope that Citizenship and Immigration Canada will eventually come up with a less confusing system.  Or will at least devise better and more accessible ways of sufficiently informing those concerned. 

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca

Saturday, 27 February 2010

LCP Reforms: Minister’s Compassion vis-à-vis a Flawed Program

Filipiniana News - Rhyme or Reason
14 February 2010        

Many rejoiced when Citizenship and Immigration Minister Jason Kenney announced substantial changes to the Live-in Caregiver Program (LCP) on 12 December 2009 at the Kababayan Community Centre in Toronto.  Although the changes did not fully encompass the reforms that caregivers and their advocates would have wanted (i.e. permanent resident status upon arrival in Canada), they were generally seen as a good start for at least having recognized the many shortcomings of the program. 

These proposed changes were published in the Canada Gazette on 19 December 2009 for a 30-day period and final regulatory changes are supposed to be published afterwards.  Aside from the Regulatory Impact Analysis Statement (RIAS) published on the CIC website with details of the proposed changes, there is still no clear indication whether these changes have actually entered into force and are being implemented in individual cases.

It must be noted that the RIAS sets out the implementing guidelines on the three main proposed changes as follows:
1.  The proposal to increase the time within which caregivers may complete the two-year live-in caregiving work to four years instead of three years would apply “upon implementation, to all live-in caregivers, including those already in Canada, for whom a determination on permanent residence had not yet been made.
2.  The proposal to allow an hours-based computation of two years (equivalent to 3,900 hours) must be completed within a minimum of 22 months.   Therefore, even in this hours-based computation, caregivers can only expedite their permanent residence application by two months at the most.  Moreover, only a maximum of 10% of overtime hours can be counted towards this requirement to discourage caregivers or employers from allowing excessive overtime work.  As in the first proposal, this will apply to all live-in caregivers, including those already here, for whom a determination on permanent residence had not yet been made. 
3.  The proposed elimination of the second medical examination however, will not be applied to live-in caregivers who are already here on a work permit and in the process of applying for permanent resident status.  This means that those who are already in the LCP would still have to go through a second medical examination as part of their permanent residence applications.  The proposed change will only apply to those who are still in the process of applying for their initial LCP work permits whose medical examination will now be assessed with a “long-term view” since they will not anymore be required to undergo another medical examination when applying for permanent resident status.

We are still hoping that the feedback received after the publication of the proposed changes in the Canada Gazette could result in even more favorable changes for LCP participants.  Meanwhile, we are happy to note that the CIC Minister’s office has continued to lend a compassionate ear to individual caregiver cases brought to his attention, especially those involving failure to satisfy certain LCP requirements due to unfortunate circumstances.  For instance, the Minister’s office has again kindly exercised positive discretion in the case of a caregiver who recently died of cancer by granting her family members permanent resident status on humanitarian and compassionate grounds.  The Minister’s office has likewise agreed to grant temporary resident permits or issue LCP work permits to a number of deserving caregivers who have either lost status or failed to comply with LCP requirements for reasons beyond their control.   

The Minister’s kind exercise of his discretionary power in exceptional cases is greatly appreciated as it is often the utmost last resort for caregivers who have been faced with difficult situations resulting in their inability to meet the requirements of the program.  Although the remedy of seeking leave for judicial review with the Federal Court is available to challenge unjust administrative refusals, this is not the most practical option for caregivers who have very limited means to afford such a time-consuming and costly legal process.  Unlike failed refugee claimants, live-in caregivers are not even qualified to seek legal aid for pursuing a Federal Court judicial review, or for other immigration legal services.

Through his exercise of discretionary power, the CIC Minister has proven time and again that he is fully aware of the disadvantages that caregivers face and that he is willing to treat those deserving cases with humanity and compassion. 

While the Minister’s positive exercise of discretion is a boon to caregivers and their families who have benefited from this type of generosity, it must be noted that these positive decisions cannot create legal precedents as they are strictly based on the particular circumstances of each case.  

Aside from the need to clarify the implementing details of recent reforms to the LCP therefore, it would be even more greatly appreciated if the Minister heeds the call for further meaningful changes to the LCP, namely, the removal of the mandatory live-in requirement and issuance of occupation-specific instead of employer-specific work permits. Better yet, live-in caregivers should be granted permanent resident status upon arrival in Canada.  Though seemingly drastic, these major reforms could be the only way to end the many injustices perpetrated within the context of an intrinsically flawed, albeit popular immigration program such as the LCP.  

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca

Wednesday, 27 January 2010

Giving Thanks

Filipiniana News - Rhyme or Reason
13 January 2010
  
For many of us, one of the first things that we are taught at home and in school is how to give thanks.  It sounds easy enough to say or do, but as we grow older, it also ends up as being one of the easiest things to neglect.

If we count ourselves among those who routinely say “thank you” for favors given to us, how often have we stopped to reflect whether we really mean it?   Is gratitude adequately  expressed by saying the words, “thank you”?   Perhaps.  But I also think that there are far better and more effective ways of expressing our sincere gratitude.

First, it does not hurt to express thanks directly to the person concerned, not necessarily through spoken words, but also through a kind thought or prayer, a smile, a nod, or even a hand wave.  For instance, I have seen the latter many times while driving on busy roads and drivers acknowledging those who let them pass through this simple way of expressing thanks.  It does make a whole lot of difference to see and experience this basic sign of courtesy on the road and exchanged among total strangers.

Second, we can also show gratitude by paying it forward.  That is, if we can do a similar act of kindness for someone else other than the person who did us the favor, then a ripple effect of kindness and gratitude will quickly spread far beyond our own limited reach.  Is it not often said that when we give, we should not expect anything in return?   It should be more than enough reward to know that your act of kindness will be repaid to someone else who will in turn do the same thing to another, and in the process making a valuable contribution towards creating a much better and kinder world.

Third, we can express appreciation for all the wonderful blessings that we have been bestowed by becoming good stewards of our natural environment.  By taking care of doing all we can to preserve mother nature, we are not only showing appreciation for all that the Creator has given us, but that we are also expressing concern for and helping ensure the survival of future generations.

Fourth, we should always acknowledge the fact that, in our daily struggles and victories, we are never alone.  Anything that we think we might have accomplished was only made possible by the fact that we were supported by various individuals whose contributions we may or may not even be aware, helped us become what we are today.

Fifth, by being good to ourselves and to others, we are expressing gratitude to our omniscient Creator who has taken care of all our needs even before we become aware of those needs.

This being the start of the year, I wanted this piece to be a simple expression of my gratitude for the many blessings received in the past year, for the many people who have provided invaluable support in countless ways, for the kindness and generosity of friends, colleagues and even strangers, and my family’s unconditional love, care, support and guidance.  If I have not verbally expressed my gratitude in the past, rest assured that I am most sincerely thankful for everything.

Words are truly not enough to express our appreciation for the many blessings we receive each day and for the many selfless deeds of so many generous people around us.  We should be thankful that there are many opportunities by which we can express gratitude and that we are still capable of carrying them out.  Let us therefore seize those opportunities as much as we possibly can. 

Meanwhile, here’s wishing you and your families a happy, peaceful and prosperous 2010!

P.S.  Just a final quick note to wish one of the most avid readers of this column, my most beloved mother, Mrs. Precy Pascual Santos, a very happy birthday!

The author is an immigration lawyer in Toronto and may be reached at mdsantos@osgoode.yorku.ca