The foreign worker decided to submit the application on his own. Much to his surprise, he received, after a couple of weeks, a refusal to his application. The applicant came to us to ask for advice. We checked thoroughly the application he submitted and realized he missed some important documents to attach to his application, therefore the work permit application could not have been approved as it was submitted.

The foreign worker retained our services and we prepared a restoration of the LMIA-exempt work permit, for a Francophone working outside Quebec. The applicant realized how thorough we were and how many supporting documents we wanted to provide to IRCC, to have a perfect image of the situation. We submitted the application and after a couple of months, the restoration of the work permit was approved and the work permit for a period of two years was issued. One can only imagine the happiness of the applicant and our satisfaction for a job well-done!

The post This Week’s Success Story: Restoration of Worker Status – LMIA-exemption for Francophones Working outside Quebec first appeared on Bellissimo Law Group.

We created the profile in the Express Entry pool and because he had a high score, we received an Invitation to Apply (ITA) on the next draw.  We then proceeded in preparing the full application, asked for all the supporting documents and submitted the application within the 60 days allotted for this process. The processing of this application was really fast, as everything was well prepared and no supporting document was missing, all the information was correctly done and the visa officer did not have any questions or clarifications to ask.

Now this individual is happily a permanent resident of Canada, looking for a job in his own field and specialty, which we have no doubt he will find very soon.

To book a consultation, please click here.

The post This Week’s Success Story: Federal Skilled Worker – Express Entry first appeared on Bellissimo Law Group.

Selection is based on a rigorous peer-review, through evaluations by top lawyers. We are delighted that Mario D. Bellissimo has been included, and it is an honour to be part of the list.

To view the listing, please click here.

The post Mario D. Bellissimo Selected for Inclusion in the 13th Edition of Best Lawyers Canada! first appeared on Bellissimo Law Group.

When the program opens, the first step is to secure your spot by registering and creating a profile in OINP e-Filing Portal, after which you will have 14 calendar days to submit your application. The application fee is $1,500.

To be eligible to apply, you must meet the following criteria:

• Completed the requirements necessary to obtain a Master’s degree that is at least one academic year in length or PhD degree that is at least two years in length if pursued on a full-time basis and from an eligible Ontario institution;
• Meet a minimum of Canadian Language Benchmark of Level 7 or above in English or French;
• Demonstrate that you have resided in Ontario for at least one year in the last two years before the application submission date, and intend to continue to reside in Ontario;
• Demonstrate that you have a minimum level of savings or income to support you and your family members;
• At the time of application must be residing in Ontario with legal status or residing outside of Canada. You will not qualify if you reside in Canada but outside of Ontario;
• You must apply within two years of completing the requirements necessary to obtain your Master’s degree.

Once the applicant receives nomination from Ontario, he/she must apply to IRCC for permanent residence within 6 months of being nominated by OINP and include copies of the Letter of Nomination and the OINP Confirmation of Nomination document. Note, however, that nomination by OINP does not guarantee that your application for permanent residence will be approved by IRCC.

The post The Ontario Immigrant Nominee Program – Masters Graduate and PhD Graduate stream – steps and eligibility first appeared on Bellissimo Law Group.

1. The foreign national (principal applicant or their dependent family member) must have a temporary or permanent resident application that was received on or after April 16, 2018 or was pending as of that date, was sent back by the Court for redetermination on or after April 16, 2018, or was sent back by the Immigration Appeal Division for reconsideration on or after April 16, 2018; and
2. The costs of the health and social services (listed in Section 1, Annex B) that would be required to treat the foreign national’s health condition are less than three times the average Canadian per capita health and social services costs over a period of five consecutive years immediately following the most recent medical examination required under paragraph 16(2)(b) of the Immigration and Refugee Protection Act, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years.

Applicants who are required to undergo an immigration medical examination (IME) pursuant to subsection 16(2)(b) of the Immigration and Refugee Protection Act and who are not exempt under subsection 30(1) of the Regulations will continue to be so required.

Pending application: For the purposes of this public policy, an application is considered to be pending up until it is either approved, refused, withdrawn or abandoned.

Section 38 (1) A foreign national is inadmissible on health grounds if their health condition(c) might reasonably be expected to cause excessive demand on health or social services.

Section 2 of the Immigration and Refugee Protection Regulations defines what excessive demand, medical and social services are:

excessive demand means (a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required under paragraph 16(2)(b) of the Act, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or (b) a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents.

The anticipated costs are measured against a threshold that provides for an average cost for Canadian and its residents. Interestingly, Immigration, Refugees and Citizenship Canada reduced the yearly threshold from $6,655 a year to $6,604, although tripled it to average$19,812 a year.

health services means any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care.

Some of the defined health services have been amended slightly to exclude chiropractors and physiotherapists.

social services means any social services, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services, (a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and (b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies.

Further, the defined social services to be considered no longer appears to include special education, although it remains to be known if therapy services (i.e.: speech therapy, occupational therapy, etc.) will continue to fall under the “other care provider” services now listed.

The other interesting aspect is the relationship between the Centralized Medical Accessibility Unit (CMAU) and the Humanitarian Migration and Integrity Division at the IRCC Niagara Falls office (HMID-NF).  The policy reads in part:

If, after weighing provisions of the public policy, the officer determines that the applicant (principal applicant or family member) is still reasonably expected to cause excessive demand, the officer should do both of the following:

• complete all application processing steps, including any outstanding admissibility or eligibility assessments, other than the assessment of medical admissibility and final decision
• transfer the application to the Humanitarian Migration and Integrity Division at the IRCC Niagara Falls office (HMID-NF) for continued processing and a final decision

This is a significant step for Immigration, Refugees and Citizenship Canada as these changes will help reducing social handicapping, discrimination and unlawful medical inadmissibility findings, although it also makes preparing in advance of medical examinations all the more important. The evolution of this policy to likely regulatory amendment and its application to different stages of immigration processing and litigation will be critical to its ultimate impact.

The post New Program Delivery Instructions Regarding Medical Inadmissibility – June 1st first appeared on Bellissimo Law Group.

The pause will only affect applications where the relevant experience of the applicant is in the management of a farm.

The self-employed person permanent residence category consists of a pathway to permanent residence for a Self-employed person who met the following criteria:

• have relevant experience;
• intend and be able to be self-employed in Canada;
• meet the selection criteria for self-employed people; and
• meet medical, security and other conditions.

 Relevant experience for a self-employed person meant that the applicant has at least two years of experience in the following areas:

• for cultural activities;
• for athletics; or
• for buying and managing a farm, two one-year periods managing a farm.

The moratorium only applies to applicants who have relevant experience in the management of farms. Applications for self-employed persons who have relevant experience for cultural activities or for athletics can continue to submit applications under this permanent residence category.

The temporary moratorium will remain in place until otherwise indicated in a future Ministerial Instruction. Applications for permanent residence under the Federal Self-Employed Persons Class by applicants whose relevant experience is in management of a farm that are received on or after 10 March 2018, will be returned along with processing fees.

If you are interested in coming to Canada to purchase or start a farm in Canada, there are still various provincial nomination programs that are available. Please contact our office if you would like further information about these individual programs.

(Sources)

The post IRCC announces Moratorium for Applications under the Federal Self-Employed Persons Class (Farm Management) first appeared on Bellissimo Law Group.

As Irina Raicu, the Director of the Internet Ethics program at the Markkula Center for Applied Ethics, Santa Clara University explained a few years ago:[1]

The Court of Justice of the European Union issued a decision that has been broadly mischaracterized as establishing, in Europe, a “right to be forgotten.” The ruling mandated that search engines delist certain results from certain searches at certain people’s request.

Following that, Google appointed an advisory council (buttressed by input from public meetings held in several European capitals) to advise the company in regard to its implementation of the decision.

The council released its report earlier this month [in 2015]. One of the first things that it notes is that the ruling “does not establish a general Right to be Forgotten. Implementation of the ruling does not have the effect of ‘forgetting’ information about a data subject.”

She went on to explain that “delisting” . . . “. . . requires Google to remove links returned in search results based on an individual’s name when those results are ‘inadequate, irrelevant or no longer relevant, or excessive.”[2]  The reality however is how can even Google with trillions of pages of information souse out inadequate information especially given the prevalence of fake news.  More difficult still, make the call regarding what may be irrelevant or excessive.

Ms. Raicu noted that “[o]ther critics of the ruling have expressed particular concern over the impact it might have on the preservation and dissemination of information about crimes against humanity”.[3] And so this in part is the link to the world of immigration law and policy.  In the immigration context reliable information is critical to making accurate determinations about certain foreign nationals, refugee claimants, permanent residents and even citizens admissibility to Canada (criminality, security, organized crime and other areas of inadmissibility). Fake news, delisting and categorizing (of information) are all thrown into the pot of this complex exercise of determining admissibility.

Visa officers continue to make serious admissibility findings regarding security, espionage, and crimes against humanity amongst others, based in part, on open source information.  This is not without peril.  With respect to using blogs as sources of information, the Honourable Mr. Justice Barnes of the Federal Court of Canada in Afanasyev [4]: held “I accept the point that open-source or wiki-type websites are, like blogs, notoriously unreliable and should rarely, if ever, be used as evidentiary sources.” It follows then that admissibility reports which are based on social media and blogs are equally unreliable.  But officers are still making assessments at times on unreliable open source information resulting in serious implications on would be immigrants and their families’ lives.

The legal test for information to be relied upon is “an objective basis for the belief which is based on compelling and credible information.”  No doubt, this is a fascinating and still, a relatively new world.  So much has to be researched, considered and debated as to how societies will manage unprecedented volumes of information and yet preserve some modicum of privacy.  Given the enormity and power of the World Wide Web, this may be one of the greatest global challenges we have ever faced.

(Sources)

The post The Right to Not Be Remembered, False News and the Impact on Immigrants first appeared on Bellissimo Law Group.

It is also very important to thank all of our employees for all their hard work and dedication. In law firms like ours, that deal with a number of urgent and complex matters, what is not always apparent are the late nights and emergency responses.  Our staff and their families make a great sacrifice for the betterment of clients’ lives, the profession and also Canada generally.  I cannot thank them enough.

I wish to also thank all our lawyer, consultant and legal writing colleagues that help us be better every day at what we do.  We remain committed to our clients and improving Canada’s immigration, refugee and citizenship law and policy that are the foundation upon which we operate.

As 2017 draws to a close, I would like to wish you and your loved ones all over the world a wonderful holiday season and a happy and healthy New Year!

The post A Holiday Message from Our Founder first appeared on Bellissimo Law Group.

OTTAWA, November 29, 2017 – The Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, today announced that Paul Favel, Q.C., a partner at McKercher LLP in Saskatoon, is appointed a judge of the Federal Court effective December 11, 2017. He will replace Mr. Justice J. Russell, who has elected to become a supernumerary judge effective December 11, 2017.

 Department of Justice (Canada) News Release

The post New Judge Appointed to the Federal Court first appeared on Bellissimo Law Group.

At the personal level, the Immigration Division (ID) will continue to be at the front line in deciding detention review cases at first instance. The cases from both the Federal Courts and superior courts have reiterated the responsibility of applying the Charter in immigration detention cases falls squarely on the shoulders of ID members. A number of critical questions arise given these developments.  In my view, a couple rise to the forefront.  Specifically, how have the recent habeas corpus decisions and the Brown v. Canada decision at the Federal Court, in particular, impacted the conduct of detention review proceedings?  What factors, if any, do members at the ID have to consider beyond the legislative and regulatory detention review regime in the Immigration and Refugee Protection Act (IRPA)[3] and the Immigration and Refugee Protection Regulations (IRPR)[4] to remain Charter compliant?

A bright light has been shone on the substantive and procedural rights at play beyond those which are enumerated in the legislative context. While the IRPA and the IRPR enumerate non-exhaustive lists of relevant considerations in determining a detainee’s substantive constitutional rights, ID members must also look to the procedural rights guaranteed by the Charter that have been interpreted and applied in recent jurisprudence to ensure the principles of fundamental justice are observed.   In all, recent jurisprudential developments have added depth, colour, and practical application to the conduct of detention review proceedings.

The cases on the ID’s jurisdiction are clear: apply the Charter. Members should look to case law, particularly the recent habeas corpus decisions of the superior courts to help them determine thorny issues like whether a detainee’s detention has been too lengthy or is not justified.  The analysis of a given detention begins with a determination if it is justified, which should be rooted in the section 9 protection against arbitrary detention. Members must also be cognizant that section 7 guarantees procedural protections. These procedural protections are no less significant than the substantive rights that govern detention reviews generally. These include a number of factors highlighted above.  Violations of even one of the procedural guarantees should lead to release of a detainee even when the Minister has satisfied the enumerated factors in section 248 of the IRPR.   Members should look to case law – not limited to the immigration sphere – to add depth, colour, and practical application to the substantive as well as the procedural guarantees in sections 7, 9, and 12 of the Charter.  These complex legal issues will continue to unfold as the jurisprudential and likely the legislative evolution of the IRPA unfolds.  The resulting changes are likely to alter the manner in which detention reviews are conducted and will impact the courtrooms, hearing rooms, holding facilities, ports of entry and everywhere in between.

For more information on Detention Reviews please click here.

(Sources)

The post Detention Reviews, Habeas Corpus and the Charter Navigating a New & Evolving Legal Landscape first appeared on Bellissimo Law Group.