Saturday, 27 December 2008

New Immigration Ministerial Guidelines

Filipiniana News - Rhyme or Reason
12 December 2008

On 28 November 2008, the much-awaited Ministerial Guidelines for the implementation of the immigration amendments imposed by Bill C-50 were finally issued.  The guidelines stated that for permanent resident applications submitted on or after 27 February 2008, only those that fall under any of the following categories will be processed:  those whose skills and work experience fall under the “38 high demand occupations such as health, skilled trades, finance and resource extraction” or “have an offer of arranged employment or have already been living legally in Canada for one year as a temporary foreign worker or international student.”  Those applications which do not fall under any of these categories will be returned unprocessed.  These changes are meant to address the growing backlog in skilled worker applications which could take up to 6 years to process under the old system.   

However, since the guidelines are only meant for applications submitted on or after 27 February 2008, it is not clear what will happen to the applications submitted before this date or how the 900,000 or so backlogged applications will be reduced.  All that the ministerial guidelines state is the vague assurance that: “All applications and requests made prior to February 27, 2008, shall be processed in the manner existing at the time of application.”   It was earlier reported that letters were sent to these previous applications asking if they are still interested in applying for permanent residence in Canada and if not, their processing fees will be refunded.  If they fail to meet the deadline for the fees refund, then the application will be processed as usual, without any indication how slow or quick the processing will take.  There are speculations that for these backlogged applications, the wait may even take much longer. 

A possible alternative option for the pre-February 27, 2008 applications therefore, would be to send new applications if they satisfy the new criteria, so that they can be considered under the priority processing which will supposedly take between six months to one year.   Moreover, the new Minister for Citizenship, Immigration and Multiculturalism Jason Kenney, explained that “Applicants who aren’t eligible for the federal skilled worker category may qualify under another category, such as the Provincial Nominee Program, or as temporary foreign workers, which could then put them on a path to permanent residency through the new Canadian Experience Class. There are many ways to immigrate to Canada.”

However, it must be noted that the only occupations which qualify under the new criteria are still those falling under either the National Occupational Classification (NOC) O, A or B (managerial, professional and some specified skilled trades).   Many temporary foreign workers who arrived in Canada in recent years came under the Low-Skill Pilot Project and whose jobs fall under NOC C and D.  Most of these workers were not properly informed that their skills and qualifications will not qualify for permanent residence application because they do not fall under NOC O, A or B.  Even the new Canadian Experience Class only qualifies those with work experience under NOC O, A or B.  Therefore, aside from the very few who may eventually qualify under the Provincial Nominee Program in some provinces, a great majority of these temporary foreign workers are forever caught in the cycle of temporary resident status in Canada, with very little chance of gaining permanent resident status. 

Although the ministerial guidelines undoubtedly present good news for some, it appears to bring huge uncertainties for many others, particularly for those who have sent in their applications years ago.  How much longer will they have to wait?  Will the fact that they will be bumped off by those who meet the new criteria but who only applied very recently, constitute discrimination or some sort of unfair treatment?  How often will the list of “high demand occupations” be updated to meet the job market realities?  How can the government treat the immigration applicants who have waited a long time with such seemingly cavalier attitude?   Why are the foreign workers in low-skilled occupations still being excluded from the skilled worker immigration category?  

Unfortunately, the ministerial guidelines appear to have raised more questions than they can answer.  What a way to end an economically tumultuous year. 

Meanwhile, let us be thankful that the celebration of Christ’s birth continues to bring joy, hope and peace on earth.   A blessed Christmas and wonderful new year to all!

The author is an immigration lawyer in Toronto and may be reached at

Thursday, 27 November 2008

Spousal Sponsorship Issues

Filipiniana News -  Rhyme or Reason
14 November 2008

In my immigration law practice, I often refer to spousal sponsorship applications as the “happy files.”  This is mainly because they are fun to put together, entails listening to and articulating the heartwarming love stories of the sponsor and his or her spouse/partner and organizing their various joint documents in the best possible way that will convince the visa officer of the genuineness of the marriage or common-law relationship.  Moreover, they are processed much more quickly than regular immigration applications – often, in a few months from sending the application, the spouse or partner is issued a permanent resident visa and landing documents.

However, I have also been seeing a growing number of not-so-happy stories of refused sponsorships especially in cases where the applications were done by the sponsor and applicant themselves without professional legal assistance.  Although the marriage is  genuine, the parties failed to convince the visa officer of the same either because the facts as they were presented were rather disorganized, conflicting or raised many issues.   I have seen application packages that were done so haphazardly that answers to questions in the forms have conflicted with the information in the other documents submitted.  Or the answers to the questions were either unresponsive or incomplete that reviewing visa officers (who are also humans after all) most likely got annoyed, suspicious, or worse, were led to believe that the marriage or common-law partnership was not genuine and simply entered into for immigration purposes. 

Although there is the right of appeal with the Immigration Appeal Division of the Immigration and Refugee Board for overseas spousal sponsorship applications and Federal Court application for leave and judicial review for all final decisions, these remedies do not guarantee success.  Moreover, the hassle of pursuing such remedies could have been avoided if the application package was properly done at the first opportunity.
There is also Regulation 117(9)(d) which has caused grief to many sponsors who realized too late that the spouses or partners they wanted to sponsor cannot be considered a member of the “family class” because the sponsors failed to disclose the spouses’ existence when they applied for permanent residence in Canada.  This regulation effectively provides that if the sponsor failed to declare the spouse in his/her permanent resident application (throughout its processing until the day of landing), he/she will be unable to sponsor the undeclared family member/s because they were not previously examined.  Worse, the sponsor can also be found guilty of misrepresentation which is a ground for inadmissibility and/or revocation of one’s permanent resident status. 

Although there are cases where the sponsor deliberately failed to disclose the spouse or partner to avoid delay in the processing of their application, or to prevent an inadmissibility finding, there are also cases where the failure to disclose was not at all intentional.  In other words, the intent of the regulation which is “to prevent the fraudulent concealment of material circumstances which might prevent the applicant from being admitted to Canada”, may not be applicable.  Unfortunately for those whose “concealment” was not fraudulent or intentional, they too, are often caught by the section 117(9)(d) exclusion. 

For instance, we know that the permanent resident applications of live-in caregivers (after completing two years of full time caregiving work within three years of arrival in Canada) are submitted and processed from within Canada.   While they may truly be unmarried upon submission of their permanent resident applications, a number of them get married in the interim, or while waiting for their PR applications to be processed (which could take several months to a few years).  Upon receiving their PR status during the landing interview at one of the inland CIC offices, it was not made clear that they had to report their change of status.  Often, a curt “please sign here” and “congratulations” are all that is said and the caregiver is left clueless that she has already committed misrepresentation by failing to disclose her new marital status and/or the existence of her spouse. 

The surprise comes when the spousal sponsorship application is subsequently filed and it is eventually refused under section 117(9)(d) of the Immigration and Refugee Protection Regulations.  An appeal is also futile as the IAD does not have jurisdiction to consider humanitarian and compassionate factors if the sponsored person is considered not to be a member of the family class (for not having been disclosed in the sponsor’s permanent resident application).  This is one instance where the law seems particularly harsh but it is the law.  Although visa officers have the discretion to consider humanitarian and compassionate grounds when requested, many of them would rather apply the law strictly in order to “protect the integrity of the immigration system”. 

Since the law is not serving justice in these fundamentally unfair situations, there is a clear need for legal reform.  Although there are admittedly those who try to exploit or abuse the system, a greater number of innocent individuals are prejudiced by the indiscriminate application of technical legal requirements. 

If Canada is truly serious about the immigration objective of family reunification, then this is one area where a visa officer’s judgment should be coupled with a reasonable dose of compassion, rather than a cold-hearted application of the law. 

The author is an immigration lawyer in Toronto and may be reached at

Monday, 27 October 2008

Some Reflections from an Election Campaign

Filipiniana News - Rhyme or Reason
15 October 2008

The Canadian federal election results have been released and we have another minority Conservative government.   Whether this is good or disappointing news for some, one thing is for sure: there are important lessons to be learned from the five-week campaign period that preceded the October 14 elections.

First of all, as it appears that we are almost in the very same situation that we were in before the election was called, people are left wondering whether all the expense and effort was worth it.   From a financial standpoint, most will likely say no, as millions of dollars have been spent on campaign ads and election expenses with the end result of simply maintaining the status quo.  Why did we have to go through all that trouble and spend so much money in the process?

From a more optimistic viewpoint, the campaign period served as a wake-up call not only for politicians, but also for the general population.  The campaign period helped to ignite passions and educate the people on significant issues that they would not otherwise have given more thought about.  For instance, the extensive coverage given to the environmental concerns has awakened many into realizing the extreme importance of protecting our natural habitat.  Failure to do so endangers not only our very lives but also those of future generations.  If only for the very purpose of raising people’s awareness of this very basic but absolutely significant issue, the election exercise could not simply be dismissed as a total waste.

The campaign period also served as a reminder for our politicians that their words and promises can and do come back to haunt them.  Campaign speeches are known to be a fertile ground for promising heaven on earth, which promises tend to be forgotten once the party or candidate is elected to power.   If there are politicians who still think that they can get away with such folly, then they must have realized by now that they are clearly mistaken.  

It had likewise been almost serendipitous that the short election campaign period in Canada coincided with the recent economic downturns not only in North America but also worldwide.   The recent weeks have certainly been a roller coaster ride for many, particularly the stockbrokers, the politicians, the banks, investors, etc..  The sudden collapse of world economies have brought back fears of another recession, causing panic among some sectors of the population.   One important thing that was emphasized through all these is that greed will eventually take its toll.  It is about time that those with power and wealth realize that these possessions are fleeting.  It will thus make much more sense to end the culture of accumulation and selfishness and instead consider effective ways of redistributing excessive wealth and using power for the greater good.

For instance, as we went through this recent political exercise, worried about plunging stock markets and devalued currencies, millions of men, women and children in other parts of the world are dying from severe starvation, curable diseases and untreated ailments on a daily basis.  We need to be reminded that there are hordes of people in developing and underdeveloped countries where the most basic rights to food, shelter, clothing and education are but a distant dream.  There are still those who suffer the most cruel forms of torture and other types of inhuman and undeserved punishment, those who live in the midst of a protracted war, those who live in constant fear and injustice and various forms of human rights violations. 

While the recently concluded election campaign also tackled issues of poverty, crime and the environment within our borders, it should have also served as a reminder that our country is not isolated from the rest of the world.  The need to reach out and assist people especially in poorer countries is a serious responsibility that Canada should not ever neglect.  Yes, there are problems within this country that have yet to be resolved.  But their solutions are clearly intertwined with a clear vision and sincere efforts to cooperate with the rest of the world in making this a better place in which to live not just for Canadians, but for all of our fellow human beings.

The author is a lawyer in Toronto and may be reached at

Saturday, 27 September 2008

Why We Should Vote on Election Day

Filipiniana News - Rhyme or Reason
15 September 2008

Last month, I wrote about the Canadian Experience Class, and expressed the hope that the benefits from these and other changes to Canada’s immigration laws are truly well-meant and are not simply laid out to court people’s votes. 

Coincidentally, an election call was recently made by the government.  As we know by now, the elections will be held on October 14, 2008.   This is a day when each and every Canadian citizen should participate and make their voices heard.    Here are a few reasons why going out to vote on election day is extremely important:

A Citizen’s Right and Privilege

Canadian citizenship law provides that citizenship can be obtained if one has physically resided in the country for at least three years within the last four years.  As a result, many recent immigrants could obtain citizenship after only having lived and familiarized themselves with the Canadian system for three full years.  Admittedly, three years is a rather short time to be able to fully identify oneself with one’s newly-adopted country, or to gain a full sense of belonging.  This is even more acute for those who have lived those early years in financial uncertainty/insecurity.   There are also those who are still unable to cut themselves off from their countries of origin and would rather be updated on the developments “back home” than inform themselves of the current political and economic events in Canada where they now live.   As a result, the citizenship card and certificate are mere pieces of paper for many and are merely used to obtain the much-coveted Canadian passport to ensure their ability to travel to their home countries for unlimited periods of time without losing their right to return to Canada.

I am not advocating a change in Canadian citizenship law in this regard.  What needs to be changed however, is the way that people interpret the value of their citizenship.

One of the most important distinctions between permanent residents and citizens is the right to vote.   It is as much of a right as it is a privilege.  More than that, it is also a civic duty and should therefore not be taken for granted.  It is a concrete and wonderful opportunity to participate in the decision-making process of the country which we have chosen to call our own. 

Environmental Degradation

Global warming, carbon tax plan, the green shift, etc.  These are buzz words which signify the urgent need to do something about preserving our environment not only for ourselves but also for future generations.   They remind us that we are but stewards of the earth and should act responsibly instead of wantonly destroying the very sources of our survival. 

If we are to allow the future generations to continue to enjoy the quality of life that we have been enjoying, we should pay careful attention to how the environmental issue is being treated by those who are seeking our votes.  The importance of this very issue is so vital in that if the environment continues to deteriorate at its present rate, then all other issues will not even matter as our mother nature and its creatures (including human beings) will eventually cease to exist.

If the politicians seeking to govern our country are therefore sweeping this issue under the rug or are prioritizing corporate profits over environmental sustainability, then we should be very wary.  They are not really promoting our interests but are simply looking at the short-term benefits of the mighty dollar and are obviously kowtowing to pressure from those with economic power.

Immigration and Human Rights

It is trite to say that Canada is a country of immigrants.  As such, immigration objectives and human rights values should lie at the very core of government laws and decision-making.   Immigration policies and practices which reflect utmost fairness for those seeking admission,  and genuine compassion for those displaced from their countries of origin by unfortunate circumstances, should be an absolute priority.

Although it is clear that human rights values should pervade every aspect of government policy and decision-making, immigration issues make it even more imperative to pay closer attention to how these values are actually enforced.  A political party or candidate who simply mouths empty rhetoric without making concrete proposals for reform or whose track record is clearly inconsistent with these values, should not get our vote.

Health and Social Welfare

Among the reasons that Canada has become a desirable place to live is its generous health and social welfare system.   However, it is also well-known that the system has deteriorated over the years.  From a severe shortage of healthcare providers, to huge cuts in government spending, to frustrating bureaucratic delays – this area of governance is clearly in urgent need of drastic and effective reforms. 

These are but some of the extremely important general issues which I believe the politicians should clearly address in this election campaign.  There will of course be other issues, more specific or less contentious, that are equally calling for attention.

It is therefore vital that we should not vote solely on the basis of charisma, oratorical skills, grandstanding, empty promises or worse, petty mudslinging, which sadly pervade election campaigns.  Instead, we should carefully listen to what these politicians are really saying, probe into their motives and decide which party or candidate we believe, in good conscience, will work towards promoting our interests and those of future generations.

 The author is a lawyer in Toronto and may be reached at

Wednesday, 27 August 2008

Canadian Experience Class – Boon or Bane?

Filipiniana News
14 August 2008

Citizenship and Immigration Canada recently announced details on the much touted Canadian Experience Class (CEC) within the current immigration system.  When the idea was first introduced a year or so ago, it was promoted as a solution to the problems relating to the unemployment or underemployment of immigrants whose credentials are not recognized in the Canadian system.

In a nutshell, the CEC is a class of individuals who are eligible to apply for permanent resident status from within Canada provided certain criteria are satisfied.  Those who are deemed eligible to apply under this class are holders of study and work permits who have valid temporary resident status when the permanent resident application is submitted. 

For study permit holders, they must have obtained a degree or diploma from an accredited Canadian educational institution after two years of full time study and must have obtained full time work experience within NOC level O, A or B after obtaining the Canadian degree or diploma. 

For work permit holders, they must have obtained at least two years of full time work experience in NOC level O, A or B within the three years prior to submitting the permanent resident application.

The jobs which are generally deemed to fall under the National Occupational Classification (NOC) level O are management occupations; level A are the professional occupations and level B are the technical occupations or skilled trades.

In addition to valid temporary resident status, full time work and/or study in Canada, the applicants must meet a certain level of language proficiency in English or French preferably through an official language testing centre.  A moderate degree of proficiency is required for those falling under NOC level O and A, while a basic degree of proficiency will be required for those falling under NOC level B.

While I can only agree that this is a step in the right direction, it has yet to prove its worth in terms of effectively addressing the many issues raised by the current immigration system.  Even prior to its actual implementation, a number of issues can already be foreseen as being potentially controversial, some of which are as follows:

Inland or Overseas Processing?

While it is claimed to be an inland application, submission packages are to be sent to the Canadian Consulate in Buffalo, New York for processing.   When the permanent resident visa is issued, the applicant can land at a port of entry or at a CIC office.  If an interview will be required however prior to the issuance of the visa, the person would still have to travel to the USA or the file may be transferred to the home country if a U.S. visa cannot be obtained.

One wonders how this new system could be any better than the current one.  At present,  a study or work permit holder in Canada who has been granted temporary resident status for at least a year is nonetheless qualified to send in a permanent resident application to the Canadian Consulate in Buffalo.  With the CEC class, the applicant has to satisfy at least two years of full time work experience in Canada before even becoming qualified to apply.   Why should one wait to meet the two-year requirement when one is already qualified to send in a PR application to Buffalo upon being granted one one-year work or study permit?

Hopefully, the difference that the CEC can make will be in terms of expediting applications and facilitating a more systematic processing of applications which meet the criteria laid out by this new class.

English Language Requirement – A Redundancy?

The wisdom of requiring English language testing for those who have already been admitted to (and presumably passed the school’s language requirements), and studied full time at accredited Canadian educational institutions, has been questioned by many.   The same is true for those who have received genuine job offers by Canadian companies, worked full time for at least two years in jobs classified under NOC skill level O, A or B.  Why require further English language testing for these people when they have proven their language ability through their years of integration into the Canadian system?

Even stronger protests have come from native English or French language speakers who are likewise required to undergo similar language testing to prove something they have acquired since birth.      

While the recent guidelines suggest that other written proof of language skills may be accepted, it is “only recommended for native English and French speakers”.   Therefore, the fact that this requirement exists still raises issues of necessity, on top of the additional expense it entails on the applicants. 

Gaps in Health Insurance Coverage

By its very nature, the CEC includes individuals who have lived and worked in Canada for at least two years and have thus integrated into the Canadian system, including possession of health insurance coverage.  If they were student permit holders, they would have been required to purchase the University Health Insurance Program (UHIP) while the LMO-based work permit holders would have qualified for OHIP (if based in Ontario).   However, as had been the experience of current open work permit holders under the post-graduation work permit program, they suddenly find themselves without health coverage because the provincial health law excludes them from coverage.   This is also true for live-in caregivers who have qualified to apply for permanent residence from within Canada and obtained open work permits in the interim.   After years of being covered by OHIP, they suddenly find themselves without public health insurance.  Whether this was due to lack of coordination between, or careless oversight by, our federal and provincial legislators, it is clear that this is a matter that needs to be corrected as soon as possible.

Let us hope that the implementation of the CEC will include thoughtful consideration of these and other related concerns for the true benefit of immigrants, rather than to simply gain their precious votes. 

The author is an immigration lawyer in Toronto and may be reached at

Sunday, 27 July 2008

Visitor Status Not a Guarantee to Long-Term Canadian Residency

Filipiniana News
15 July 2008 

Time and again, I receive inquiries on how to “convert” one’s visitor status into a work permit or permanent resident visa while here in Canada.   Many people tend to 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 apply at a visa office (i.e. outside of Canada).  It also does not help that the current processing times for permanent resident applications at visa offices like the Canadian Embassy in Manila for instance, is now taking about five years to complete.  Any quicker alternative to land on Canadian soil therefore becomes a much more attractive option.

Depending on the individual’s personal circumstances, the above assumption may not necessarily hold true and may in some cases, prove blatantly false.   It therefore 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 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 again, 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 convinced not only of the genuineness of the job offer but that sufficient recruitment efforts were taken 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 obtained, the foreign worker will use this to apply for a work permit.   

An initial work permit application however, must be applied for 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 apply for 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 prior to coming to Canada if part of the plan is to later obtain 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. 

It must be noted that 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 likewise generally submitted to visa offices where the applicant is a national and/or has been legally residing for at least a year.   Inland permanent resident applications 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 be typically satisfied 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.

Canada is a beautiful country and offers many opportunities.   But it is doubtful that this will mean anything much if one is constantly living in fear and uncertainty.

Have a wonderful summer!

The author is an immigration lawyer in Toronto and may be reached at

Friday, 27 June 2008

Wanted: Government Apology for the Oppression of Live-in Caregivers

Filipiniana News
14 June 2008 

Prime Minister Harper recently issued an official apology to the former students of native residential schools and admitted that “this policy of assimilation was wrong, has caused great harm, and has no place in our country.”   Much like the previous official government apologies for the internment of the Japanese and the Chinese head tax, this symbolic act is an important step towards healing old wounds and in paving the way for achieving meaningful reforms and social justice. 

While it is a welcome symbolic act, it should not end up as another lip service to the ideals of fairness and justice that Canada has always claimed to uphold.

Pardon me for sounding cynical, but I cannot help doubting the government’s sincerity as it continues to perpetuate immigration laws and policies which are clearly against the very same ideals of fairness and justice that it claims to promote. 

For instance, this recent apology made me wonder – would the government ever consider apologizing for all the pain and suffering caused to many participants of the Live-in Caregiver Program (LCP) and their families?  

It is widely known that a great majority (approximately 90%) of those admitted under the LCP are from the Philippines.   Moreover, there have been numerous reports and studies of how the live-in caregivers have been, and continue to be abused or taken advantage of by their employers, recruiters, employment agents and/or consultants.  And even after satisfying the condition of working full time as live-in caregivers and eventually gaining permanent resident status in Canada, the long years of separation from their families have often resulted in estranged relationships and broken homes.  

While it is admitted that there are live-in caregivers who may speak positively about their experience, this is overshadowed by the tragic experiences of many other LCP participants and their families.  After all, the problem with the LCP is far more complicated than meets the eye.  It breeds systemic discrimination.  The inherent injustices perpetuated by the LCP are so deeply-ingrained in historical prejudices and discriminatory attitudes that even so-called politically-correct government policies and humanitarian objectives cannot simply make up for its many flaws. 

Concretely, we see it daily in the blatant violation of contractual provisions that live-in caregivers and their employers have entered into as a requisite for the issuance of the work permit.  While the law clearly provides that the LCP was created for the purpose of providing care for children, the elderly or disabled, HRSDC and CIC-approved contracts routinely allow the inclusion of “light housekeeping duties” under the tasks that are expected of the caregivers.  In reality, these “light housekeeping duties” can translate into working very long hours daily (e.g. from 5a.m. until midnight), preparing meals for the entire household, washing dishes, doing the laundry, ironing clothes, shoveling snow, walking the dog, running various errands, etc..  If this is not modern-day slavery, I don’t know what is.

Who is monitoring the enforcement of these LCP contracts anyway?  What are the consequences, if any, for employers who seriously take advantage of their live-in caregivers’ vulnerability and desperate desire to obtain permanent resident status in Canada?  

Yes, there are human rights and labour laws that can be invoked and government agencies tasked to assist in their enforcement.  But let’s get real.  Of course these caregivers will think twice before taking any step that will antagonize their employers and/or jeopardize their smooth transition from the LCP work permit to the much-coveted permanent resident visa.  Many of them would rather endure “minor” inconveniences just to buy peace, avoid any complications and become permanent residents as soon as possible.  

So how does the LCP reality fit in the picture of a just and equitable Canadian society?   Why the discriminatory treatment of this class of work permit holders who have to satisfy the condition of living in with their employers for two years within three years of arrival in Canada and not being allowed to bring their spouses and children to Canada at the outset, even as temporary residents only? 

There was a recently-published story of the cancer-stricken caregiver, Juana Tejada, whose application for permanent residence based on humanitarian and compassionate grounds was denied due to her medical inadmissibility.  Despite the fact that she was diagnosed with cancer while working as a caregiver for a Canadian family, the government did not consider her deserving of permanent residence in Canada because she will allegedly cause an “excessive demand” on the Canadian system.  To me, this is just one indication of the utter lack of appreciation for the invaluable contribution of live-in caregivers to Canadian society.  Why would the government care for one cancer-stricken caregiver?   After all, there is a long line of prospective caregivers who can easily take her place.  How “humanitarian and compassionate” is that?    

I look forward to the day when the Prime Minister will also render an official apology and corresponding action to rectify the oppressive Live-in Caregiver Program.

May I invite readers, especially past and present live-in caregivers, to please send their comments and experiences to  This will greatly help in our advocacy efforts for changes to the LCP.  Thank you. 

Tuesday, 27 May 2008

Preserving the Integrity of Canada’s Immigration System

Filipiniana News – May 2008

Last month, I ended my column with the following paragraph:

“I have often heard CBSA officers justifying 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 the sole action is to punish the victims while the culpable ones remain scot-free.  But that can be the subject of another column…”

Please allow me to discuss this matter further.

Recently, I was made aware of the case of construction workers recruited from the Philippines after having been supposedly sponsored by a Canadian company.  Upon arrival at the airport, two of the workers were not issued work permits on the ground that their Labour Market Opinions (LMOs) have expired.  They were subsequently detained at the Immigration Holding Centre until released on bail and under strict terms and conditions while their immigration status is being determined. 

Meanwhile, another worker sponsored by the same company and whose LMO has also expired, was released on conditions but whose passport was seized by the CBSA and asked to report on a regular basis pending the determination of his immigration status. 

Yet another worker recruited by the same company with a similarly expired LMO, was readily issued a work permit without going through any difficulty that his three compatriots experienced. 

A fifth person, who knew of what happened to his four compatriots, took the risk and also flew to Canada several days later, hoping that he would be as “lucky” as the fourth worker who was issued a work permit.  Unfortunately, he ended up being detained and only later released on bail and under strict terms and conditions that were imposed on the other three workers.

Without going into further details, it may appear that there is something terribly wrong and inconsistent with the way that Canada’s immigration laws were applied to these workers.  However, it would not be proper to simply make a sweeping judgment based on these hazy details.  

There is one thing though, that this scenario clearly underscores:  that immigration matters are dealt with on a case-by-case basis, and by individual reviewing officers of varying backgrounds and inclinations.   No one-size-fits-all prescription or remedy applies.  One could not predict with utmost certainty the outcome of a particular case or application until it is individually and independently assessed.  No matter how one thinks that two or more cases have exactly the same facts, there can never be perfectly identical cases.  Each can only be properly evaluated on its particular merits.

And this, I believe is the most important reason for the continued exercise of reasonable discretion on the part of frontline immigration officers who deal with temporary and permanent migrants on a daily basis.   This is also the reason that section 25 of the Immigration and Refugee Protection Act (IRPA), i.e. allowing humanitarian and compassionate considerations, should be retained and further strengthened.   It not only allows flexibility;  it also humanizes the otherwise cold and harsh application of black letter law.   After all, immigration officers are not mechanical robots - each is endowed with reason and compassion just like any other human being.  On the other hand, the immigrants coming to Canada are not mere statistical units – each has a life story to tell and an ability to contribute to the colorful fabric of Canadian society. 

It is thus disheartening to hear recent proposals to amend immigration laws which appear to go against the spirit of humanizing and improving the system.  For instance, the proposal to require official English/French language testing for all permanent residence applicants, regardless of origin and educational/work background, is not only totally unfair for those who are native speakers or who have used English/French extensively in school or at work, but is also a way of dehumanizing the screening of applicants.  It is being proposed to reduce the screening of applications to the mere calculation of raw scores and lifeless numbers, rather than evaluating the individual merits of the applicants.   It may sound more “efficient” that even robots and machines can do, but it certainly lacks humanity or even common sense.

Another proposed amendment is that of limiting the use of Section 25 (humanitarian and compassionate) considerations, e.g. not providing this option for applications made from outside of Canada.   Clearly, this will unjustly close the door for many who have otherwise no legal way of reuniting with family members in Canada or escaping from a persecutory environment, among many other negative consequences.

True, there is a huge backlog in the processing of immigration applications and something must be urgently done to resolve this problem.   But there are various ways to do so without sacrificing the values that Canada stands for, and for which reasons the immigration and refugee laws were enacted in the first place.

After all, the best way to preserve the integrity of the Canadian system is to restore its sense of humanity.

The author would be interested to receive any feedback and may be reached at

Sunday, 27 April 2008

Misrepresentation Issues

Filipiniana News – April 2008

Misrepresentation in the context of immigration law can be a tricky concept.  Hence, some people are caught by surprise when found 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.   Unfortunately for the applicant, the unscrupulous act of representatives or placement agents may prejudice his or her  immigration status.  The real culprits on the other hand, feel immune from any negative consequences owing to their Canadian citizenship status and/or by the often protracted, complex and expensive judicial and other modes of seeking redress, thereby discouraging many from pursuing such route. 

For instance, prospective caregivers to Canada who are destined to be “released upon arrival” are considered by Canada Border Services Agency (CBSA) officers to be guilty of misrepresentation because they are not meant to be employed by the employers named in their work visas.   This, despite the fact that the caregiver was not directly aware of the misrepresentation “indirectly” committed by another to support the caregiver’s application.  As is often the case, these prospective caregivers are not aware of the placement agencies’ modus operandi of paying “employers” to sign the employment contracts and LMO applications even though these “employers” have no intention of hiring the caregivers in the first place.  What happens is that once the caregivers 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 have shrewdly created the phenomenon 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, their immigration consultants or representatives advised the applicants (or did so on their own without even notifying the applicant) to remove the names of other dependents or family members or misdeclare marital status to avoid causing 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 marital status was misdeclared.  Since these types of misrepresentation are deemed “material”, these could lead to the commencement of inadmissibility proceedings against the permanent resident and/or the denial of the sponsorship application.

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 assured that the CBSA will be convinced of the caregiver’s, as well as the employer’s intentions, which will lead to the issuance of the work permit upon arrival at the border.

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.   

I have often heard CBSA officers justifying 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 the sole action is to punish the victims while the culpable ones remain scot-free.  But that can be the subject of another column…

The author would be interested to receive any feedback and may be reached at

Thursday, 27 March 2008

The role of lawyers in the immigration process

Filipiniana News  –  March 2008

As an immigrant and foreign-trained professional, it only seemed logical that I gravitated towards the practice of immigration law.   This is not to say that immigrants and foreign-trained professionals do not have other skills and interests;  I just felt that my personal journey and struggles encountered in the process of migrating to Canada furthered my passion and determination to assist others in this oftentimes tricky and complicated area of law.

The process of applying to migrate to Canada appears to be a rather simple and manageable one.  The comprehensive Citizenship and Immigration Canada (CIC) website with all the necessary forms, guides and manuals detailing the application process, allows practically anyone who can read and understand English to prepare an immigration application package.   In fact, the CIC website emphasizes that hiring a lawyer or consultant is not required in this process. 

While this may be true for the most part, the reality is that many applications get denied for simple (or not-so-simple) errors that could have been avoided if the applicant sought professional help in the first place.  With the multiple forms, supporting documentation and other requirements (that are often known or familiar only to those who have gone through this process numerous times), it is easy to miss some seemingly insignificant data but which could ultimately spell the difference between success and failure in an application.   Aside from the often lengthy processing times, CIC officers are vested with substantial discretion in the decision-making process.  It is therefore important to do the application right at the first opportunity. 

All too often, the services of immigration lawyers like myself are obtained when the initial application has been refused or when ‘self-prescribed’ remedies have failed.   It can be especially frustrating when, after some egregious errors have been committed, a client suddenly comes and expects the lawyer to miraculously resolve the issues in a matter of days.   In one extreme instance, I received a phone call seeking assistance about half an hour prior to a person being deported.   With no signed Use of a Representative form, no substantial information on hand and almost an hour’s drive to the airport, I almost wished I were a superhero so I could get to the venue pronto. 

Of course, I am no superhero and can only do so much depending on the situation.   For instance, one of the most stressful remedies that an immigration lawyer undertakes on behalf of a client is the filing of a Motion to Stay a removal order as part of an underlying Application for Leave and Judicial Review (JR) with the Federal Court.  Stay motions are often a last resort remedy for those who have been ordered to leave Canada after all other administrative remedies have failed and they were found not to qualify as persons in need of protection (through the pre-removal risk assessment procedure).  Therefore, these are usually filed at the very last minute, in an attempt to delay the removal date pending the resolution of the JR application.   And what the lawyer files is not simply a piece of paper and voila, the removal will be stayed!  

Far from it.  Since the Stay Motion is being filed with the Federal Court, there are particular procedures to be followed and strict deadlines to be met.  Aside from the JR application notice, there is the Motion Record to be submitted containing a properly indexed, paged and bound compilation of facts (presented through affidavits), supporting documents, legal arguments and a book of authorities.  If one wants the submission to look presentable (especially to avoid annoying the Motions judge), they need to be at least properly paged, preferably tabbed and cerlox-bound.  One can only imagine the amount of energy (manual and mental, i.e. legal research and analysis) as well as paper (!) that are entailed by the preparation of these submissions within very limited time constraints.  Moreover, a copy of the record needs to be served on the Department of Justice (DOJ) before three copies are submitted to the Federal Court registry with proof of service to DOJ.  The matter must then be orally argued before a Federal Court judge on Motions day (or any other day with leave of court).  Only after all these have been done will the judge decide whether or not to stay the removal order.

The JR Application is another matter whereby the serious legal and/or factual issues are actually decided upon, i.e. the main application upon which the Motion was based.  An Application record is submitted within a set period and if granted leave, the matter is scheduled for hearing before another Federal Court judge.  While there are always technical arguments that could be made, the case would still be very weak if the foundation itself is weak.  It is an important principle to note that in a JR application, additional evidence cannot be submitted which were not earlier submitted to the administrative officer whose decision is under review.   It is not an “appeal” after all, but a “review” of the administrative decision by the judicial branch.   Therefore, in these instances, winning at the Federal Court level will be a tough battle, unless of course, there are clearly serious procedural and substantive administrative errors committed by the administrative decision-maker.  If the JR is allowed/granted, the matter will be sent back to another administrative decision-maker for redetermination.

While non-lawyers are allowed to represent clients at the Immigration and Refugee Board, only lawyers can appear before the Federal Court.   However, at both levels, there are specific rules to be followed and evidentiary burdens to be met.  If the lawyer is called upon to assist only at the Federal Court level to seek JR and/or file a motion to stay the removal order, it will be a very challenging task to obtain a positive ruling if the legal and factual foundation is weak or has been weakened by errors committed earlier on.

Hopefully, the above has somehow aided towards a better understanding not only of the further remedies available in the immigration system, but also on the role of immigration lawyers in the entire process. 

The author would be interested to receive any feedback and may be reached at

Wednesday, 27 February 2008

Spousal Sponsorship Issues

Filipiniana News – February 2008

Last month, I wrote on family sponsorship in general.  In this column, I would like to deal more specifically with sponsorship of spouses/partners in particular, due to the increasing number of inquiries received on this topic.

Despite the notoriously slow processing times for immigration applications, it is refreshing news when one hears of spousal sponsorship applications being approved in just a few months, as I did recently for one of my clients.   It somehow reaffirms one’s faith in a system where frustrating delays are the norm rather than the exception. 

However, the downside of this is that some unscrupulous individuals try to take advantage of the quick processing times by entering into marriages of convenience (i.e. those entered into solely for immigration purposes) as a faster way of obtaining permanent resident status.  Aside from being illegal, this could seriously lead to more problems and complications in the long run.  This also leads to greater suspicion and stricter screening of spousal applications that even genuine relationships sadly end up being categorized as having been entered into only for immigration purposes. 

Different types of relationship

There are three different types of partnerships that could qualify under the spousal sponsorship class:  spouses, common law partners and conjugal partners.

Spouses are couples who are validly married in the jurisdiction where the wedding was celebrated.   To prove the genuineness of the marriage, the sponsor and applicant must provide documentary evidence such as wedding photos, invitations, reference letters, love letters to each other, etc..   The Canadian or permanent resident can sponsor the spouse even a day after getting married so long as the genuineness of the marriage is adequately proved.

Common law partners refer to couples living together in a committed relationship without getting married.  They can be considered common law partners from day one.  For purposes of immigration sponsorship however, common law partners must have lived together for at least a year to qualify.   This must be proven by a declaration of common law union, joint documents (bank accounts, apartment lease, insurance beneficiary designation, income tax returns, etc.). The burden of proving common law status for at least a year is on the applicants so the more evidentiary documents are submitted, the better.  

Conjugal partners refer to couples in a committed relationship, at the same level of commitment as spouses and common law partners, but who are prevented from marrying or living together by some compelling circumstances - e.g. laws prohibiting same sex union in ultra-conservative countries, war, detention, etc..  This is much more difficult to prove and is thus rarely approved as basis for an immigration sponsorship.

Any of the above relationships can be a heterosexual or a homosexual partnership.

Overseas versus Inland Applications 

There are two avenues for this type of family sponsorship.  The first is the overseas sponsorship whereby after the approval of the sponsor’s eligibility at the case processing centre in Mississauga, the permanent resident application of the partner is processed at the appropriate overseas visa office.  If the person being sponsored needs to be interviewed, he or she will have to attend at the visa office in person.   One advantage of this type of application is that there is a right of appeal with the Immigration Appeal Division (IAD) of the Immigration Refugee Board in case the sponsorship application is eventually refused.   Aside from being able to submit new evidence on appeal, the IAD also has jurisdiction to consider evidence of any relevant humanitarian and compassionate factors. 

The other avenue is via the Spouse or Common Law Partner in Canada class.   As the name implies, this sponsorship is allowed only for spouses and common law partners (and not for conjugal partners).   This type of application assumes that the spouses or common law partners are already living together in Canada and that it will create undue hardship if the application is processed overseas.  Out of status spouses may also be sponsored under this category.  Please note however, that in case the application is refused, it is a final decision and there is no right of appeal.   The only remedy after a refusal is the filing of an Application for Leave and Judicial Review with the Federal Court.  A positive decision in the Federal Court application can only, at best, result in a quashing of the decision but that the matter will be sent back to CIC for a redetermination by another visa officer.  There have been instances where the redetermination still led to a negative decision. 

Divorce and Bigamy 

One issue that often arises among Filipinos who are planning to sponsor or are being sponsored by their Canadian or permanent resident spouses/partners, is that of divorce.

It is often unclear or even hard to believe for others that Philippine laws do not allow divorce.   Philippine family law only recognizes legal separation (which does not allow one to remarry)  and annulment (marriage is declared void or void ab initio).  The only instance when a foreign divorce could be recognized is if one of the spouses acquires foreign citizenship in the country where the divorce judgment is obtained.   If the foreign citizen obtains a divorce and remarries, then the Filipino spouse is allowed to remarry as well.

Therefore, even if one becomes a permanent resident of Canada but remains a Filipino citizen, a divorce judgment obtained in Canada may still give rise to possible issues of bigamy and misrepresentation.  That is, if the permanent resident remarries after obtaining the divorce judgment and then eventually sponsors the second spouse, a visa officer may invoke criminal inadmissibility for the bigamous marriage and/or raise misrepresentation issues arising from the bigamous relationship.

Hope the above information will be of some help to those who may be planning to sponsor their spouses or partners to reside permanently in Canada.

The author would be interested to receive any feedback and may be reached at

Sunday, 27 January 2008

Sponsorship Myths and Facts

Filipiniana News – January 2008


Family reunification is among the pillars of Canadian immigration.  This is the principle upon which the provisions for sponsoring family members is based.  As a result, CIC allows the sponsorship of spouses, common law partners, children, parents, grandparents and other relatives (in certain exceptional circumstances), as a means of obtaining permanent resident status in Canada.  

Applications to sponsor spouses, common law or conjugal partners and dependent children are given top priority such that these could take only a few months to process as contrasted to the several years that it takes for other types of sponsorships and permanent resident applications to be finalized.   (For instance, a family class application to sponsor parents from the Philippines is currently taking three to fours years to process.)  If the submission package is complete and is able to address all the concerns that may be raised by the visa officer vis-à-vis the genuineness of the relationship, then the interview will most likely be waived and the processing time is greatly reduced. 

Due to the relatively faster processing time, a number of unscrupulous individuals decide to enter into marriages of convenience and apply for permanent resident status under the family class category.   This is to seriously caution those who are thinking of, or are being advised, to take this route.  It is a very risky proposition and something that is not worth taking.   For one, the threat of blackmail is always present.  So is the possibility of prosecution for fraud, and the declaration of inadmissibility either for criminality or for misrepresentation.   This will eventually lead to removal from Canada. 

It must be kept in mind that the burden of proving the bona fides of the relationship is on the applicant.   If the visa officer is not satisfied based on the documents provided, the visa officer is not obliged to go out of his or her way to seek further evidence.  At best, the interview is the final opportunity for the sponsor and the sponsored person to convince the visa officer that the relationship is genuine and not one simply entered into for purposes of obtaining permanent resident status.  

If the parties truly believe that the relationship is genuine but the visa officer refused to grant the sponsored person a permanent resident visa, the sponsor has a right to file an appeal with the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB).   On appeal, the parties are allowed to submit additional evidence that were not submitted to the visa officer.  If the board member is convinced of the genuineness of the relationship, he or she has the power to reverse the visa officer’s decision and consequently order the granting of a permanent resident visa to the sponsored person.   Please note however, that due to the current shortage of IRB members who can preside at the IAD, there is a huge backlog of cases which is causing a long delay in the scheduling of appeal hearings.  At present, it is taking about a year before an appeal hearing is even scheduled. 

Aside from the documentary requirements and processing times, there are also other factors which need to be seriously considered when filing a family sponsorship application.   Both the sponsor the sponsored person/s do not only have to meet certain qualifications, they also have to execute a Sponsorship Agreement which lays down the responsibilities of both parties.  For the most part, the sponsor undertakes the serious responsibility of taking care of all the basic needs of the sponsored person at least during the period specified.  This means three years for spouses, common law or conjugal partners and dependent children over 22 years of age.   For dependent children below 22 years old, the undertaking is for ten years or until reaching the age of 25 years old, whichever comes first.  For parents, grandparents and all other relatives, the period of undertaking is ten years. 

“Basic needs” refer to food, shelter, clothing, fuel, utilities, household supplies and even health care which are not provided by the government such as the costs of dental and eye care services. 

While the sponsored person is also required to undertake reasonable efforts to meet basic needs, he or she can always depend on the sponsor for any and all forms of support.  If the sponsor fails to provide such support and the sponsored person is forced to seek social welfare, the government will pass on the costs incurred to the sponsor during the period that the sponsorship undertaking is in effect. 

Sponsorship is irrevocable, meaning the sponsor cannot force the government to nullify the sponsorship agreement and remove the sponsored person from Canada.  Barring any ground for inadmissibility, the sponsored person’s status as a permanent resident is safe and is not within the sponsor’s power to take away.

This is important to note for those who are experiencing or have experienced relationship breakdowns.  Some sponsored persons think that they are trapped and cannot get out of the relationship since their immigration status is tied to the sponsor.  This is not true.  The sponsored person is a not a prisoner of the sponsor.  If the relationship breaks down, the sponsored person has a right to seek external help.   If seeking social welfare is necessary for survival, the government cannot deny such assistance.  The sponsor will then become answerable to the government for all financial assistance received. 

While it may not have been actively enforced in the past, the government has recently taken steps to seek repayment from sponsors for all social welfare assistance granted to their sponsored family members.  Some sponsors have in fact been charged up to hundreds of thousands of dollars in accumulated social welfare payments.  

Family reunification may be a pillar of Canadian immigration.    However, it also means serious commitment and responsibility for all concerned.  

The author would be interested to receive any feedback and may be reached at