We argued this determination was based in the Applicant’s arguments upon unforeseeable credibility concerns (he would not leave, course of study, gap in schooling) which were not put to the Applicant and to which the Applicant was not given an opportunity to respond and factual errors unsupported by the record.  The Applicant also argued the Officer failed to properly assess important, credible, and highly relevant evidence including the ESL course he was taking was a compulsory requirement of admission to his program of study in Canada, he could not take another ESL course at a different location, why he was resuming studies later in life, his dual intention, the course of study was linked to his previous study and his significant ties to his home country. In all, the Applicant was of the view he presented an application that was complete and met all legal requirements.

It is well established in law when considering a study permit application, immigration officers have discretion in assessing the evidence and arriving at a decision. However, the decision must contain reasonable findings of fact based on an analysis of relevant evidence. It is trite law that a decision that runs contrary to the evidence is unreasonable.[2]

The Respondent argued the concerns arose from the legislative requirements and it was an insufficiency of evidence finding and reasonable.  There was no procedural breach, no right to an interview and the Applicant was simply disagreeing with the weight assigned by the Officer to the evidence.  Although there may have been other options open to the Officer the negative finding based upon this rational was still within the range of reasonable outcomes.  The Court did not agree and the Honourable Justice Grammond determined the decson was unreasonable.[3]

This case in my view is a good reminder that these applications should not be based upon generalizations and stereotypes but upon an applicant’s individualized circumstances.[4] So, in these types of circumstances suspicions, stereotypes, generalizations or whatever the description have no place. Simply put, the Applicant’s 250 plus page application for a study permit was complete and met all legal requirements and he was owed the opportunity to have his individual circumstances considered.  Anything less is not reasonable and the Federal Court agreed.

For a more detailed discussion of this stage please subscribe to Immquest in our publications section – click here

For more information on applying for a study permit or challenging a refusal please contact us

Thank you for reading.

Sources

The post Study Permit Cases Should Be Decided on Individual Factors and Not Stereotypes or Generalizations first appeared on Bellissimo Law Group.

Q: My brother married a woman overseas three years ago. They now have a child together. After he married about a year and half ago, he submitted a sponsorship application to CPC Mississauga. The immigration office asked him to provide his income and apparently he did not respond. He is self-employed and I am not sure of what his income is each year. He travels back and forth very often, to visit his wife and child, but he never mentions the sponsorship application. We would like to help him, but do not know where to start. Can we sponsor his wife and child on my brother’s behalf? Can they come as visitors to Canada or can we make an application for permanent residency on her behalf?

A: Your question raises a number of issues. First, you must speak to your brother and clarify whether he still has any interest in pursuing this matter, then establish whether his sponsorship application is still in process or the file has been closed. He does not have to meet a specific income requirement for a spousal sponsorship, meaning it is not a bar against sponsoring, but, at the same time, the income must be declared. We cannot be sure without your brother’s consent to access his file or speak with him if the sponsorship remains active.

Unfortunately, you cannot sponsor. Only your brother can sponsor his wife and child. The wife and child may apply, of course, for a temporary resident visa (visitor), but first of all any counsel would want to know what happened with the sponsorship application as they will be screened by the visa post and they will be asked questions about her case. We would also want to know why your brother was reluctant to respond. There is nothing in the legislation preventing her to apply for a visitor visa, but she has to demonstrate that she is willing to return home at the end of the validity of her visitor visa. We would recommend your brother consult immigration counsel.

Thank you for your questions.

The post Can We Sponsor My Brother’s Wife? first appeared on Bellissimo Law Group.

1. Banff, Alberta: Lake Louise is located in Banff National Park, just under two hours away from Calgary. This lake is turquoise in colour and sits in between two mountains which makes it pretty iconic. The historic Fairmont Chateau Lake Louise is located right on the lake front with spectacular views. Lake Louise becomes a skating rink once it freezes over, perfect for hikes, snowshoeing, skiing or dogsledding.

2. Whistler, British Columbia: Visit Whistler, a popular North American ski resort. Spend all day on the slopes and unwind in the alpine Village at the base of the twin ski hills at night. Whistler is located less than a two hour drive from Vancouver and offers sophisticated dining options and so much more.

3. Ottawa, Ontario: Ottawa is quite popular in the winter as it is known for ice skating on the Rideau Canal, BeaverTails, cross country skiing, snowshoeing and hiking in the Gatineau, and lastly, the architecturally stunning Parliament building. Ottawa is also the nation’s capital, so it tends to attract many tourists especially during the holiday months. Did you know the Rideau Canal Skateway is the largest natural outdoor skating rink in the entire world!

4. Whitehorse, Yukon: Into some hardcore adventures up north? To get the full Yukon experience, head there in the winter and experience the aurora borealis, backcountry dogsledding, stay in a luxury yurt or lodge and relax by the fire.

5. Quebec City, Quebec: Quebec City transforms into a winter wonderland during the holiday season as it mimics a European festival. The city is surrounded by 400 year old walls and along the streets you will find little stands and shops offering hand-painted wooden toys, delicate ornaments, locally crafted cheeses, fresh sausages and mulled wine. There are also fireworks, outdoor concerts and dance parties!

There are so many other places to visit in Canada during the holiday season, however these 5 are our top favourites!

To read more, click here.

The post The Best Holiday Getaways in Canada! first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Inadmissibility Finding in Judicial Review Considered Unreasonable first appeared on Bellissimo Law Group.

The Saudi Ministry of Education has later announced exceptions to that decision and confirmed that some groups of students will receive new financial scholarships issued by the Saudi Arabia Cultural Bureau, in particular:

• medical trainees, which includes physicians, dentists and nurses
• graduate (master’s and Ph.D.) students in all academic disciplines
• undergraduate scholarship students in the final year of their bachelor programs

In light of the above, Immigration, Refugees and Citizenship Canada announced that for applicants who do not fall into any of the categories above, the new instructions are to be followed in the processing of study permits and extensions.

In the new applications for study permits and study permit extensions that include a scholarship from the Kingdom of Saudi Arabia as the sole proof of funds, the officers are required to do both of the following:

• request additional proof of funds from the applicant
• allow 30 days for the applicant to provide the proof of funds

After 30 days, if additional proof of funds is provided by the applicant, officers will assess the application, taking into consideration the new proof of funds.

If no additional proof of funds is provided, and the officer is not satisfied that the student will be able to pay for tuition, maintain themselves and accompanying family members during their stay and pay for any necessary transportation costs for themselves and their family members, the application will be refused under section 220 of the Immigration and Refugee Protection Regulations.

Applications for study permits and study permit extensions from nationals of the Kingdom of Saudi Arabia that do not include a scholarship from the Kingdom of Saudi Arabia, but include other proof of funds, are to be processed as regular study permit applications.

The post New Instructions for Saudi Arabian Nationals Regarding Study Permits first appeared on Bellissimo Law Group.

What can we do to help Canada reach its climate change target?

It all starts with plastic waste and marine litter, as people and companies throw away more than $100 billion worth of plastic packaging each year. Devastatingly, 8 million tonnes of plastic flow into our oceans every year, which is equivalent to one garbage truck full of plastic being dumped into our oceans every minute! In order to sustain a healthy environment for Canadians, we need to keep all of our waters and shorelines clean of debris – which is why the Minister of Environment and Climate Change, Catherine McKenna, travelled across Canada this past summer to encourage Canadians to learn more about climate change and how the use of plastics can seriously harm the environment. She launched the Community Cleanup, which is a call for all Canadians to clean up plastics from their local shorelines, parks and neighbourhoods. This cleanup started on September 8, followed by International Coastal Cleanup Day and World Cleanup Day on September 15. In order to maintain this community cleanup, participants need to be continuously involved – you can join or lead your own cleanup, on your own or through the Great Canadian Shoreline Cleanup, anytime and anywhere in Canada! Make sure you register with the Great Canadian Shoreline Cleanup to contribute to global and Canadian data by recording what you find.

If I can’t participate in the Great Canadian Shoreline Cleanup, are there little steps I can take to help fight climate change in Canada?

Of course! Many people throughout Canada are tackling climate change with some simple changes to their every day schedule. See below to see how you can help too!

1. Try reducing your transportation emissions. In Canada, transportation accounts for 24 per cent of climate-polluting emissions. Try taking public transit, riding a bike, car-sharing or switching to an electric of hybrid vehicle. These changes will also contribute to your health and will save you a few bucks along the way!

2. Use energy wisely. Try switching to energy-efficient light bulbs and try unplugging your computer, TV and other electronics when they are not in use. In the summer, try hanging your clothes outside to dry instead of using the dryer!

3. Recycle and eat for a climate-stable planet. If you are going to indulge in a meal that is wrapped in plastic, make sure you recycle! Try growing your own food. Make your food at home instead of buying food and wasting plastic! Try using reusable containers.

Together, we can eliminate plastic waste and reduce marine litter in our own country and around the world! To read more, click here.

(Sources)

The post Interested in Helping Canada Reach its Climate Change Target? first appeared on Bellissimo Law Group.

The NEXUS program is a voluntary program which allows pre-screened low risk travellers who are deemed admissible to enter both Canada and the United Sates expedited processing when entering these countries.[1] Program members use designate processing lanes without having to go through the usual customs process. It is jointly run by the Canada Border Services Agency (CBSA) and US Customs and Border Protection.

2. What is the eligibility process?

A Canadian applicant must be a citizen or permanent resident of Canada. Permanent residents of Canada must have lived as legal residents for a minimum of three years before the date of application with few exceptions related to serving in the armed forces.[2]

Once the application has received conditional approval, an interview will be scheduled where a CBSA officer or US Customs Boarder Protection Officer will conduct verification processes and an eligibility review. The membership will then be finalized by the NEXUS Enrolment Centre. The members are given a card identified as the NEXUS membership card. If a new card is issued, all previous cards must be destroyed.[3]

3. Do I have to comply with all the rules and regulations?

As a NEXUS member, the rules are applied very strictly. It includes complying with all customs and immigration laws and regulations, and any other laws or regulations that are enforced by the CBSA and United States Customs and Border Protection. A member is required to have the NEXUS card in their possession when using the services, report all goods being imported, and understand that the membership card is valid for his or her use only.[4]

4. Are you able to cancel your membership?

There is no leniency for carelessness or lack of knowledge.[5] A reason for the cancellation of the NEXUS Membership could be that the individual has been deemed by the United States or Canada to not be of “good character.”[6] The CBSA’s assessment of good character includes a review of the person’s border compliance history, criminal history, immigration violations and intelligence information. CBSA enforcement actions can include (but are not limited to) seizing goods or issuing a penalty or fine.

5. What steps should I take if my card has been cancelled, revoked or seized?

A request for review must be submitted to the CBSA’s Recourse Directorate within 90 days from the date the rejection or cancellation of the membership became effective. It becomes effective either immediately when notified in person or 15 days after the notice is mailed.

If the CBSA Recourse Directorate decides that the enforcement action is warranted, one will have to file two legal proceedings with the Federal Court: (1) a notice of application for judicial review of the NEXUS Membership Cancellation within 30 days of the CBSA Recourse Directorate letter; and (2) a notice of action challenging the enforcement action.

(sources)

The post Travel Often? Here are 5 Frequently Asked Questions Regarding Nexus Passes for Canadians first appeared on Bellissimo Law Group.

Are Permanent Residents allowed to vote?

Permanent Residents are people who have immigrated to Canada but who are not Canadian citizens. They’re entitled to social benefits and health care coverage, and can also work, live or study anywhere in Canada. They’re also entitled to protection under Canadian law and the Charter of Rights and Freedoms. One in five Canadians are immigrants, as of the 2016 census, bringing the total number of immigrants residing in Canada to 7.5 million. Permanent residents can apply for citizenship, but as non-citizens, they can neither vote nor run for political office, nor hold jobs that require “high-level security clearance.”[2]

Every so often I hear a variety of opinions on who should or should not be allowed to vote and at which level. For example, in the runup to the current municipal election in Ontario, there have been news stories about individuals and groups that are advocating for permanent residents (PR’s) to become voters in municipal elections.[3] Given the importance of being able to effect change in your own neighbourhood, to shape the places that you frequent, perhaps municipal voting should not only be the preserve of the Canadian citizen.

The Future

While Toronto and Vancouver have passed motions in favour of giving PR’s the right to vote, PR’s are still unable to vote in those municipalities because the decision lies with the provinces. Perhaps one day Canada will become more like New Zealand and other countries where non-citizen voting is a reality. Until then, it seems that PR’s in Canada will have to wait to become citizens before they are able to elect their representatives (or become candidates for office themselves).

To learn more about how to obtain permanent residence in Canada, please click here.

(sources)

The post The Municipal Election: How does it work for Permanent Residents? first appeared on Bellissimo Law Group.

The decision to shut these streams down was made due to the low retention rate of entrepreneurs.  A major area of concern involved providing permanent residency to approved applicants before they ever entered P.E.I. As a result, many of these entrepreneurs settled in other areas of Canada, contrary to the intention they expressed to operate a business in P.E.I., which formed the basis of the decision to grant them permanent residence. Although unethical, this is not illegal, as Section 6 of the Canadian Charter of Rights and Freedoms allows for freedom of movement. The P.E.I. government had anticipated this and imposed a $200,000 deposit, refundable upon the fulfillment of the entrepreneurs’ stated intention to operate a business in P.E.I. However, they overestimated the value of this money; last year, 177 applicants did not receive their deposits back, raising a total of $18 million for the province.

The sudden closure of the streams without any warning may seem unfair, however, this is the most practical route from an administrative standpoint. As stated in the Speaking notes for The Honourable Jason Kenney, PC, MP Minister of Citizenship, Immigration and Multiculturalism, released at a news conference held on 4 November 2011:

“As we redesign the program to make it sustainable, here’s the challenge we have: if we leave the program open for applications during that period of consultation and redesign, we know what will happen – we will get absolutely flooded with a huge increase in applications. Because people will say “if the criteria might change, we need to get our application in right away.”

Although these notes refer to a different program, the principle still stands; prior notice results in an influx of applications under criteria which are meant to be changed, defeating the purpose of the closure. Even with the removal of the two streams, all is not lost for entrepreneurs wishing to operate a business in P.E.I. There is a stream of business immigration which is still operational, under which entrepreneurs receive a work permit, if approved, to set up their business in P.E.I. Only once they meet the terms of a Performance Agreement will a provincial nomination be granted a route to permanent residency opened. One of those terms is the continuous operation of the business for one year, which may prove more effective in retaining entrepreneurs in the region than a sum of money.

The post P.E.I Shuts Down Two Streams of its Business Immigration Program first appeared on Bellissimo Law Group.

This decision to increase the number of applications that IRCC will accept for processing is a result of continually high demand in the Parents and Grandparents (PGP) Program and the fact that inventory of applications has dropped significantly over the last few years — from a peak of 167 000 people in 2011, to just under 26 000 people in June 2018.

Minister Hussen further announced that the government is making further changes to the application intake process that will streamline access to the program and improve client experience. In 2019, as in previous years, the Interest to Sponsor form will be available online, at the beginning of the year, so eligible potential sponsors can let IRCC know they wish to sponsor their parents and grandparents to come to Canada. However, instead of randomly selecting the sponsors to apply, potential sponsors will be invited to submit an application to sponsor their parents and grandparents based on the order in which IRCC receives their Interest to Sponsor forms. This process will continue until the 2019 cap of 20 000 complete applications is reached.

Further details of these improvements to the system will be announced this fall.

The post Government of Canada to Improve Application Intake System and Accept more Sponsorship Applications for Parents and Grandparents first appeared on Bellissimo Law Group.