The post This Week’s Success Story: A Successful Outcome Achieved For A Spousal Sponsorship Appeal first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Finding of Medical Inadmissibility Overturned on Appeal first appeared on Bellissimo Law Group.

It is important to keep in mind that, if the refusal/removal order is appealed to the IAD that the PR remains a PR until a final decision is made by the IAD. If the IAD allows the appeal, then the individual is thereafter a PR in good standing. If the IAD refuses the appeal, then the individual loses permanent residence and will have to depart Canada.

In most cases, the decision is legally valid – the PR was not in Canada for at least 730 days of the five year period. In these cases, the challenge at the IAD is instead to demonstrate that there is sufficient humanitarian and compassionate merit for the IAD to allow the appeal. Each residency appeal brought before the IAD is unique to the PR’s circumstances and requires a balancing of his/her personal (and family) circumstances.

Many of the factors surrounding residency in Canada focus on the PR’s settlement and establishment in Canada. How well has the PR immersed him/herself in Canada? Is s/he truly part of the community – through employment, religion, volunteer activities, etc? Are the PR’s family members, particularly children and spouse, residents and established in Canada? Does the PR have a network of friends or other family members in Canada? These are all questions that the PR should be prepared to address at the IAD to demonstrate that it would be a hardship to leave Canada.

Tied with establishment in Canada, is character and behaviour – this is evidence of being a good member of Canadian society. For this purpose, evidence that the PR is law-abiding is important: does s/he pay income taxes? Does s/he have a clean criminal record in Canada? Participation in Canadian events – whether political, religious, sport – are also of value, as they demonstrate an interest in the Canadian community.

On the other side of establishment considerations is the explanation for having been outside of Canada. If the PR was outside of Canada due to employment or education, then it is important to demonstrate to the IAD that these circumstances are not going to be repeated. It would serve no purpose for the IAD to allow the PR’s appeal, if the individual was going to continue to be working outside of Canada and would default on residency again. The PR should have a clear employment trajectory that will lead to working in Canada, whether it be by finding a Canadian employer, having their foreign credentials approved in Canada, finding Canadian clients if self-employed, or otherwise.

Another frequent explanation for being outside of Canada is family commitments; at times a PR leaves Canada to care for an ailing parent or grandparent, for example. If this is the only explanation for being outside of Canada for over three years (in the five year period), this will be a challenge as it will be important to establish that there was no other family member available to share the care giving to that family member. The IAD will look at whether the PR returned at the first opportunity and whether the prolonged period outside of Canada was truly necessary.

The factors involved in a humanitarian and compassionate appeal are as varied as the PRs involved in this process. It is important to have a clear legal strategy from the day the appeal is filed, so that by the time of the hearing the individual is prepared both with their plan for the future and with appropriate evidence.

For more information on residency appeals, please click here.

The post Residency Appeals – So, you were not in Canada for enough days… first appeared on Bellissimo Law Group.

In 2013 appeal rights became narrower. A permanent resident, inadmissible for serious criminality, who received a criminal sentence of six months of more in Canada became barred from appealing the decision. Furthermore, a permanent resident with a foreign conviction (or who is thought to have committed a criminal offence), which was seen as equivalent to crime attracting the ‘serious criminality’ label in Canada, also lost all appeal rights. Having lost appeal rights, these permanent residents will lose their permanent residence status and will, in most circumstances, be removed from Canada.

The changes to appeal rights in 2013 have had significant consequences that intersect with the criminal justice system. The old two year limit was a natural sentencing consideration for the criminal courts, as a sentence of two years moved a defendant from provincial detention centres to federal penitentiaries. The criminal court, although not meant to overtly consider immigration consequences, may now look at the implications of any sentence over six months. In circumstances of minimum mandatory sentencing of six months or more, a finding of guilt will be commensurate with loss of status in Canada and removal.

The use of conditional sentencing has also come under scrutiny in this new system. Conditional sentencing was used by the criminal courts to punish a convicted person, but to also allow them to continue living within the community. Conditional sentences were used on individuals seen to be less of a risk to the community, but the trade-off was a longer sentence than would be received in detention. For some time this longer sentence, when it was six months or more, was thought to bar access to the IAD – despite that the alternative term of imprisonment would have been under six months. Recently, Justice O’Reilly considered conditional sentencing in Tran v. M.C.I., 2014 FC 1040 and conclusively stated that a conditional sentence of twelve months did not amount to a term of imprisonment of at least six months.

Criminal convictions are a very serious matter for permanent residents of Canada. Clearly, the sentence received for these convictions in Canada has tremendous implications on the person’s status in Canada. This intersection of criminal and immigration law is important and needs to be carefully addressed in a collaborative manner.

The post Serious Criminality & Access to the Immigration Appeal Division first appeared on Bellissimo Law Group.

Dear Applicants:

Unfortunately, the Federal Court of Appeal has dismissed (rejected) our appeal in the Federal Skilled Worker termination case – May Joe Tabingo, et al and the Minister of Citizenship and Immigration. A more detailed report will follow in the coming days, after we have the chance to analyse the decision and communicate with the other lawyers who participated in the case.

Sincerely,

Mario D. Bellissimo

The post Important message: Communication to Federal Skilled Worker Applicants first appeared on Bellissimo Law Group.

The Appeal Books (which includes the thousands of pages of evidence the parties are respectively relying upon) are due to be filed at the Federal Court of Appeal by December 20^th, 2013.

The Appellant’s (Our) Legal Arguments (Memoranda) are due at the Federal Court of Appeal by February 28^th, 2014. 

The Respondent’s (Department of Justice) Legal Arguments (Memoranda) are due at the Federal Court of Appeal by April 17^th, 2014.

Thereafter the hearings will be set down likely over several days.

The post Latest Update – Federal Skilled Worker Class Litigation: Federal Court of Appeal first appeared on Bellissimo Law Group.

The post Latest Update – Federal Skilled Worker Class Litigation: Federal Court of Appeal first appeared on Bellissimo Law Group.

We will be in communication with our clients to exchange information, share ideas and to provide specific updates as to the progress of the case directly to respective e-mail addresses.  Please ensure your current e-mail address is on file with our office and if there has been any recent change to your e-mail address to advise our office immediately.

The post Latest Update: Federal Skilled Worker Litigation Appeal first appeared on Bellissimo Law Group.

We will continue to diligently advance the interest of our clients in the ensuing months.

Please check back for more updates!

The post Federal Skilled Worker Litigation Appeal Launched with the Court first appeared on Bellissimo Law Group.

Please note that we have extended the deadline to join the Federal Skilled Worker Litigation Appeal. All interested applicants who wish to proceed with the appeal are asked to contact Parminder Kaur in our Accounting Department at pk@bellissimolawgroup.com by 12:00 PM EST on Friday, May 17, 2013. If you have already retained for the purposes of the appeal, please disregard this message.

The post Extended Deadline – Federal Skilled Worker Litigation Appeal first appeared on Bellissimo Law Group.