Monday, December 14, 2009


Interesting article appeared today, highlighting the issue of searches of personal effects at the border. For those interested, you can see several articles I have published on the issue of laptop searches in my website in the "Publications" section.

Canadians don't forfeit right to privacy at border, Obama official says - The Globe and Mail

Saturday, December 12, 2009


Corporate INTL Magazine interviews Ted Badoux of Evereart Advocaten regarding immigration rules in the Netherlands.


Visalaw International's German lawyer Gunther Mävers is interviewed for an article in Corporate INTL Magazine.

Wednesday, December 2, 2009


Canadian HR Reporter

Immigration system not meeting labour market needs: Auditor general
More immigrants coming to Canada through provincial nominee programs

By Shannon Klie

There is a clear lack of a strategy on the government’s part to ensure permanent and temporary workers coming to Canada meet the needs of the labour market, as well as a lack of regulation that leaves temporary foreign workers vulnerable to exploitation, found a report from Canada’s auditor general.
The temporary foreign worker program, in particular, is not delivered efficiently and effectively, found the report. There is no systematic review by either Citizenship and Immigration Canada (CIC) or Human Resources and Skills Development Canada (HRSDC) to ensure job offers are genuine or that employers are complying with the terms and conditions under which the work permits were issued, according to the November 2009 report.
“The problems we noted could leave temporary foreign workers in a vulnerable position and pose significant risks to the integrity of the immigration program as a whole,” said auditor general Sheila Fraser.
In October, before the report was released but after the audit was concluded, Citizenship and Immigration Minister Jason Kenney announced changes to the temporary foreign worker program.
The proposed improvements would include a more rigorous assessment of the genuineness of an employer’s job offer, with an examination of an employer’s past compliance with federal and provincial labour laws.
The changes would also prevent employers that have failed to deliver on promises regarding compensation, working conditions or the actual job from hiring workers through the program for two years. They would also be named on CIC’s blacklist.
Most of the changes are aimed especially at protecting low-skilled workers in the program, said Bill MacGregor, leader of the immigration national practice group at the law firm Gowlings in Waterloo, Ont.
“I think it’s part of a trend generally to tighten things up and try to protect foreign workers and try to have more of an enforcement process,” said MacGregor. “I think that’s a good thing. Whether it goes far enough, I suppose, can be debated.”
Decisions made by CIC, which don’t seem to be supported by a strategy to meet the needs of the Canadian labour market, have caused a significant shift in the types of foreign workers becoming permanent residents, found the report on foreign workers (which is part of a larger report covering other Canadian issues).
While the annual targets for immigrants under the economic class have changed little in the past five years, targets for programs under the class have changed dramatically.
Targets for the provincial nominee programs (PNPs) increased 471 per cent from 3,500 in 2004 to 20,000 in 2009. On the other hand, targets for the federal skilled worker program dropped 31 per cent from 98,200 to 68,200.
The PNP might soon become the largest source of economic immigrants, which could affect how well Canada’s immigration system meets labour market demands, stated the report.
Under the PNP, certain provinces and territories can nominate candidates for immigration based on their own selection criteria to meet regional labour market needs without approval from the federal government. These candidates are not subject to the points system of the federal skilled worker program.
Because the criteria vary so widely among the different PNPs, the federal, provincial and territorial governments need to formally evaluate the programs to see if they are in fact bringing in immigrants who match labour market demands and if immigrants who enter one province actually stay there, stated the report.
“It is critical that the government’s programs to facilitate the entry of permanent and temporary workers be designed and delivered in a way to ensure that the right people are available at the right time to meet the needs of the Canadian labour market. The choices that are made now will affect the kind of society Canada has in the future,” stated the report.
Toronto-based citizenship and immigration lawyer Sergio Karas agreed with the auditor general’s findings.
“The immigration and refugee system is totally broken,” said Karas, who is the chair of the Ontario Bar Association’s citizenship and immigration section. “We need some major reforms.”
At the top of his list is the way in which the system selects skilled immigrants. Instead of relying on a points system and an outdated, political list of priority occupations, the government should work with businesses to find out exactly what kind of immigrants they need, he said.
“I would like to see an employer-driven immigration program,” said Karas. “If we would only bring in the type of immigrants that the labour market demands then they would all have jobs.”
In 2008, the government changed the Immigrant and Refugee Protection Act to give the minister of citizenship and immigration the power to set eligibility criteria in an effort to reduce the backlog of applications under the federal skilled worker program, which had nearly doubled since 2000.
In October 2008, the ministry set new eligibility criteria requiring applicants for the federal skilled worker program to have one year of experience in one of 38 occupations (down from a list of 351), to have lived in Canada for one year as a temporary foreign worker or international student, or have a job offer.
Under the new criteria, the government forecast a reduction in new applications and that processing times for new applications would take six to 12 months. But the auditor general found no evidence of policy, program or operational analysis to support that forecast.
At the end of February 2009, the backlog was 635,233. By June 30, 2009, the total backlog and new applications was 594,122, a 6.5-per-cent reduction, which was mostly due to ineligible applications made by people unaware of the new eligibility criteria, stated the report.
The auditor general called for strong structures and processes to support the identification of priority occupations to ensure there is a link between labour market needs and the selection of immigrants. While the government held consultations to select the 38 priority occupations, there is no mechanism in place to ensure the list will remain up-to-date, found the report.
The government is wasting a lot of resources by bringing in immigrants who will never work or be stuck in low-paying jobs because they don’t have the skills needed for the jobs available, said Karas. Instead, the government should focus its resources on those individuals who will have the most economic impact.
“You can’t have people coming to Canada and wandering the streets not able to find a job,” he said.
There should be a graduated immigration system that starts with work permits, so only people with a job in hand could begin the immigration process, said Karas.
As such, the temporary foreign worker program is absolutely necessary to the system. But there needs to be an acknowledgement not all participants in the program would be appropriate for permanent residency, he said.
The program is often used in industries to meet short peaks in demand. But after the peak, demand drops off and not as many workers are needed so they would no longer have a job, said Karas.
“There are people who need to go home after their services have been performed,” he said.

Sunday, November 8, 2009

Wednesday, November 4, 2009


Canada's Auditor General released her annual report yesterday, with a scathing indictment of Citizenship and Immigration policies. Her warning: the department is losing control of the immigration system and of who is admitted to Canada, with unqualified individuals and fraud levels rising dramatically. Here is the link to her report as it pertains to immigration:

Sunday, October 25, 2009

CTV News | Broken Vows: Marrying for immigration, not love

This is a very interesting W5 documentary which highlights a very common problem. As long as interest groups pressure the authorities for "quick" sponsorships, the problem will continue. What is needed is a change in the legislation to give sponsored spouses temporary entry only, with a probationary period of several years before permanent residency is granted upon the relationship subsisting, much like it is done in the US. If there is a marriage breakdown, there is absolutely no reason for the sponsored spouse to remain in Canada. In addition, those found to have entered into marriages of convenience for money should be subject to penalties and prosecution. Such "deals" are fraudulent and constitute a contravention of the Immigration and refugee Protection Act. What is lacking is the will and the means to prosecute fraudsters.

CTV News Broken Vows: Marrying for immigration, not love

CTV News | Broken Vows: Marrying for immigration, not love

This is a very interesting W5 documentary which highlights a very common problem. As long as interest groups pressure the authorities for "quick" sponsorships, the problem will continue. What is needed is a change in the legislation to give sponsored spouses temporary entry only, with a probationary period of several years before permanent residency is granted upon the relationship subsisting, much like it is done in the US. If there is a marriage breakdown, there is absolutely no reason for the sponsored spouse to remain in Canada. In addition, those found to have entered into marriages of convenience for money should be subject to penalties and prosecution. Such "deals" are fraudulent and constitute a contravention of the Immigration and refugee Protection Act. What is lacking is the will and the means to prosecute fraudsters.

CTV News Broken Vows: Marrying for immigration, not love

Saturday, October 24, 2009


Visalaw International lawyers held meetings in Madrid, on occasion of the IBA annual conference, to discuss different aspects of immigration policy and to plan future activities to assist and inform their worldwide clients.


Several Visalaw International lawyers were speakers at the International Bar Association (IBA) annual conference in Madrid on the panel's of "Medical issues and immigration" and "Entrepreneur and Investor immigration".

Wednesday, September 30, 2009


Marla Bojorge, our Spanish Visalaw International reports on the PenaNet project. She's one of PenaNet's attorneys.

Marla powerpoint -

Saturday, September 19, 2009


Visalaw International New Zealand member David Ryken writes in the New Zealand Herald on problems with immigration consultants.

Thursday, September 17, 2009


Sergio R. Karas co-Chaired today a "Lunch with the Privacy Commissioner of Canada" at the Ontario Bar Association, attended by over 100 lawyers. The session was interesting and informative.

Wednesday, September 16, 2009


Sergio R. Karas appeared recently in teh program "On the line" with Christine Willimas, on CTS Television, to comment on the state of immigration policies in the new economic reality. Here is the link to the video: The Line


Government of Canada Creates Special Immigration Measures to Recognize Contribution of Afghan Staff in Kandahar

OTTAWA, ONTARIO--(Marketwire - Sept. 15, 2009) - The Government of Canada will offer special measures to facilitate immigration to Canada for certain local staff who face exceptional risk or who have suffered serious injury as a result of their work for the Canadian government in Kandahar province, Afghanistan.

"There are Afghans who face extraordinary personal risk as a result of their work in support of Canada's mission in Kandahar," said Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism. "We commend their bravery to help build a better Afghanistan while recognizing the price that they have paid. Their lives and those of their families may be threatened by insurgents, and some have suffered serious injury and can no longer work. To recognize their contribution, we will offer them special consideration if they wish to relocate to Canada."

The government plans to implement these measures in October 2009. In general, applicants must demonstrate that they face individualized and extraordinary risk or have suffered serious injury as a result of their work with the Canadian government. In addition, the applicant must have worked at least 12 cumulative months in Kandahar in support of the Canadian mission.

Spouses of Afghan nationals killed because of their work with the Canadian government will be eligible. All will have to meet standard immigration requirements, including criminal, medical and security screening. The accompanying dependent children of those who qualify would also be eligible.

Canada's approach is consistent with the objectives of similar programs offered by the United States in Afghanistan and the United Kingdom, Australia and Denmark in Iraq.

Successful applicants will receive health-care coverage under the Interim Federal Health Program as well as resettlement services similar to what is currently offered to government-assisted refugees, including up to 12 months of income support upon arrival in Canada. Applicants may apply under this program until the end of the Canadian combat mission in Kandahar in 2011.

Tuesday, August 11, 2009


The New York Times reports on an accelerating trend:
Shanghai and Beijing are becoming new lands of opportunity for recent American college graduates who face unemployment nearing double digits at home.

Even those with limited or no knowledge of Chinese are heeding the call. They are lured by China’s surging economy, the lower cost of living and a chance to bypass some of the dues-paying that is common to first jobs in the United States.

“I’ve seen a surge of young people coming to work in China over the last few years,” said Jack Perkowski, founder of Asimco Technologies, one of the largest automotive parts companies in China.

“When I came over to China in 1994, that was the first wave of Americans coming to China,” he said. “These young people are part of this big second wave.”

Friday, August 7, 2009


This is quite interesting, because of the implications for sports and immigration: it is undeniable that immigrants from countries who have no affinity to hockey are far less inclined to send their children to hockey practice, or to attend games. In fact, there is a sense of crisis amongst hockey organizations. In my capacity of Chair of the Ontario Bar Association Citizenship and Immigration Section, we were requested by a prominent hockey organization to come up with ideas as to how to interest immigrants in hockey.

Hockey losing its grip among Canadian teens

Thursday, August 6, 2009


The Government has implemented a new transit without visa program , primarily for those changing flights to and from the US. Here is the press release:

News Release

New program to facilitate travel through Canada and encourage business at Canadian airports

Vancouver, July 30, 2009 — The Government of Canada is making it easier for international travellers on their way to and from the United States to pass through Canadian airports. Citizenship, Immigration and Multiculturalism Minister Jason Kenney, Public Safety Minister Peter Van Loan, and International Trade and the Asia-Pacific Gateway Minister Stockwell Day announced the news today.

Each year, hundreds of thousands of travellers pass through Canadian airports on their way to the United States. The new program will allow certain international travellers en route to and from the U.S. with valid U.S. visas to transit through Canadian airports without a Canadian transit visa.

Intended to achieve a balance between ensuring security and facilitating the movement of genuine travellers, the Transit Without Visa program is being implemented in Vancouver following a successful pilot project undertaken at the Vancouver International Airport. Other major Canadian airports will now be able to apply for similar status.

“Removing the requirement for a Canadian transit visa will make Canadian airports more attractive for international travellers going to and from the United States,” said Minister Kenney. “This will help airports expand their business, which will in turn have a positive impact on the local economy.”

“This program creates an opportunity to enhance travel to North America through Canada, while protecting our security interests,” said Minister Van Loan.

“We are embarked on a robust trade agenda to open doors for Canadian business in markets around the world,” said Minister Day. “We are taking action here today to facilitate the flow of people and goods over the border so they can seek opportunities abroad and create jobs at home.”

“The Transit Without Visa program is a key initiative for facilitating travel between North America and Asia via the YVR gateway,” said Larry Berg, President and CEO, Vancouver Airport Authority. “It allows us to capitalize on our geographical advantage as the major West Coast airport closest to Asia, and enables our airlines to transit passengers between Asia and North America seamlessly.”

At this time, the program only applies to nationals of the Philippines, Indonesia, Thailand and Taiwan who hold valid U.S. visas and who are travelling through the Vancouver International Airport to and from the United States on a participating airline. Currently, the following airlines are eligible to participate in the program: Philippine Airlines, China Airlines and Cathay Pacific Airways.

As the Government looks to further expand the Transit Without Visa program, a full assessment of each new request will be conducted before approving any additional airports, airlines or foreign nationals into the program.

As the program expands to include more Canadian airports and participating airlines, so too will the economic benefits to Canada, such as more revenue from airport fees. The increased flow of international travellers transiting to and from the U.S. through Canadian airports will bring more revenue to Canada’s economy, particularly through money spent by passengers on airport retail.

In the meantime, in recognition of the importance of travel from China, a separate China Transit Trial has been put in place. This trial will allow Chinese nationals holding valid U.S. visas to travel to and from the U.S. through the Vancouver International Airport without obtaining a Canadian transit visa. To qualify, they must travel on one of the pre-authorized air carriers in the Transit Without Visa program and fly on direct, non-stop flights to the Vancouver International Airport, originating from Beijing, Hong Kong, Shanghai, Guangzhou, Manila and Taipei. The trial will be in place for one year, after which an evaluation will be undertaken.

For more information, visit the websites of Citizenship and Immigration Canada and the Canada Border Services Agency.

Thursday, July 23, 2009


See this story appeared today in the National Post. I am just wondering how on earth decision-makers who are supposedly trained to apply the law can be so incredibly naive to grant a serial criminal with a history of convictions a "second chance" . This makes absolutely no sense to me. Have IRB decision-makers lost their mind?

Refugee board gave alleged killer chance

Refugee board gave alleged killer chance

Deportation order lifted week before murder

Kim Bolan, Canwest News Service

A week before Babak Najafi Chaghabouri allegedly kidnapped and killed Vancouver resident Ronak Wagad, the Immigration and Refugee Board gave him one last chance to stay in Canada despite a series of convictions.
Mr. Chaghabouri convinced IRB member Renee Miller last Feb. 16 that he was turning his life around even though he had been ordered out of Canada in 2008 because of serious criminality.
On Feb. 23, Mr. Wagad disappeared. The remains of the 31-year-old were found near Chilliwack, B. C., on July 8.
This week Mr. Chaghabouri and Charles Anthony Leslie were charged with Mr. Wagad's first-degree murder, abduction and forcible confinement. Police said the victim and the accused killers were all involved in the mid-level drug trade.
There was no mention of drugs or gangs in Ms. Miller's ruling reversing Mr. Chaghabouri's deportation order, a copy of which was obtained by The Vancouver Sun.
She said Mr. Chaghabouri had demonstrated he deserved another chance even though he had a string of convictions between 2003 and 2007 for possession of a weapon, assault and forcible confinement, uttering threats and aggravated assault.
"Ultimately I was convinced that the appellant's prospects for rehabilitation are good," Ms. Miller said.
She cited a violence prevention course done by Mr. Chaghabouri as proof of his commitment to change.
"That course did not appear to have been completely successful because the appellant was involved in a subsequent violent offence while in custody and was convicted of that offence," Ms. Miller said. "However, he did provide evidence that he has competed two other preventative courses. Although I do not have the corroborative evidence, I accept his evidence on that point."
She said he seemed to be in a "stable relationship" and had obeyed all his probation conditions. "He told me that part of the efforts that he has made with regard to his rehabilitation is to avoid contact with the Persian community," Ms. Miller said. "I take the view that the appellant has demonstrated that he has made efforts towards rehabilitation and that there is more than a mere possibility that there is rehabilitation in his future, although clearly it is not complete."
Ms. Miller also said that Mr. Chaghabouri had not relied on welfare, which weighed in his favour. Nor did he explain how he earned a living. "Although his evidence of employment and ability to support himself was minimal, there was no evidence of any reliance on social assistance. However, it is hard to see how he could have supported himself on $3,500 per year," she said.
And Ms. Miller said that if Mr. Chaghabouri were to be deported to his native Iran, he could be in danger.
"There was evidence before me that there is a serious risk to the appellant if he were removed to that country, given his past political involvement in Iran and his current involvement in an organization which advocates for the separation of the Kurdish people from the government of Iran," she said.
The murder charge is not the only new allegation Mr. Chaghabouri has faced since having his deportation order overturned.
He was also convicted in two other cases, including one where he carried a knife and an imitation firearm on April 27.
The weapons charge led the public safety minister back to the IRB in June to get the deportation reinstated.
Mr. Chaghabouri was ordered deported a second time on June 29, just nine days before Mr. Wagad's body was found and three weeks before the murder charge was laid.
Mr. Chaghabouri came to Canada in 2001 at the age of 19 and got refugee status in November of that year.
His first run-ins with the law began two years later.
At one point he fled to Ontario to evade prosecution, Ms. Miller heard. "He may well have had an overpowering fear of the criminal justice system in Canada, but it is not a factor in his favour that he fled responsibilities," she said.
She did warn Mr. Chaghabouri that he had better stay on the straight and narrow. "If you continue on the course that you have been, which involves criminal convictions for violent offences or offences that involve weapons, at some point the balance will tip against you and the potential danger to you in return to Iran and the efforts that you have made to create a stable life for yourself in Canada will no longer outweigh the danger to the Canadian society," she said.
Even though the deportation order was ultimately reinstated, criminal proceedings must be completed before someone is removed from Canada.

Monday, July 13, 2009


Today, the government imposed visas on the Czech Republic can Mexico. The visa on Mexico is new, and the one on the Czech Republic is reimposed after three years of visa-free travel for Czech citizens. In both cases, the overwhelming number of refugee claimants and the imposition of visas a must.In the case of Mexico, the drug war, combined with the downturn in the US economy, heightened security at the Southern border and the availability of visa-free travel to Canada, made it a preferred destination of refugee claimants, both real and bogus, with the added concern that drug violence and criminals could be spilling over to Canada. In the case of the Czech Republic, the visa was reimposed after a failed experimenting with visa free travel resulted in large numbers of Czech of Roma origin once again seeking asylum in Canada, as they had done in previous periods of visa-free travel. Of course, this should have been done much sooner, before things got out of control....but for now some sense of order will be restored. Here are the Citizenship and Immigration press releases.

Canada imposes a visa on the Czech Republic

Ottawa, July 13, 2009 —Beginning 12:01 a.m. EDT on July 14, 2009, Czech nationals will require a visa to travel to Canada, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today. For the first 48 hours, Czech citizens may apply for entry on arrival in Canada. After 11:59 p.m. EDT July 15, 2009, a visa will be required.Since the visa requirement was lifted on the Czech Republic in October 2007, nearly 3,000 claims have been filed by Czech nationals, compared with less than five in 2006. The Czech Republic is now the second top source country for refugee claims. The relatively higher acceptance rate of refugee claims originating in the Czech Republic masks the troubling fact that more than half of the claims are abandoned or withdrawn before a final decision is made by the Immigration and Refugee Board, indicating that many claimants may not be genuine refugees.“In addition to creating significant delays and spiraling new costs in our refugee program, the sheer volume of these claims is undermining our ability to help people fleeing real persecution,” said Minister Kenney. “All too often, people who really need Canada’s protection find themselves in a long line, waiting for months and sometimes years to have their claims heard. This is unacceptable. “The visa requirement I am announcing will give us a greater ability to manage the flow of people into Canada and verify bona fides. By taking this important step towards reducing the burden on our refugee system, we will be better equipped to process genuine refugee claims faster.”“The visa process will allow us to assess who is coming to Canada as a legitimate visitor and who might be trying to use the refugee system to jump the immigration queue,” Minister Kenney said. “It is not fair for those who have been waiting patiently to come to Canada, sometimes for years, when others succeed in bypassing our immigration system.”Canada regularly reviews its visa policies toward other countries. Countries are aware that if they do not satisfy the conditions of a visa-exemption, a visa may be imposed.This change means that nationals from the Czech Republic who want to travel to Canada will first need to apply for a Temporary Resident Visa and meet the requirements to receive one. It is up to the applicant to satisfy the visa officer their visit to Canada is temporary, they will not overstay their approved time in Canada, they have enough money to cover their stay in Canada, they are in good health, they do not have a criminal record, and are not a security risk to Canadians. These requirements are the same for anyone who wants to visit Canada.Applicants from the Czech Republic will submit their applications to the Canadian visa office in Vienna, Austria which currently serves nationals from several other European countries.“Canada has strong ties with the Czech Republic,” said Minister Kenney. “We continue to welcome all genuine travellers to Canada from this country

Canada imposes a visa on Mexico

Ottawa, July 13, 2009 — Beginning 12:01 a.m. EDT on July 14, 2009, Mexican nationals will require a visa to travel to Canada, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced today. For the first 48 hours, Mexican citizens may apply for entry on arrival in Canada. After 11:59 p.m. EDT July 15, 2009, a visa will be required.Refugee claims from Mexico have almost tripled since 2005, making it the number one source country for claims. In 2008, more than 9,400 claims filed in Canada came from Mexican nationals, representing 25 per cent of all claims received. Of the Mexican claims reviewed and finalized in 2008 by the Immigration and Refugee Board, an independent administrative tribunal, only 11 per cent were accepted.“In addition to creating significant delays and spiraling new costs in our refugee program, the sheer volume of these claims is undermining our ability to help people fleeing real persecution,” said Minister Kenney. “All too often, people who really need Canada’s protection find themselves in a long line, waiting for months and sometimes years to have their claims heard. This is unacceptable.“The visa requirement I am announcing will give us a greater ability to manage the flow of people into Canada and verify bona fides. By taking this important step towards reducing the burden on our refugee system, we will be better equipped to process genuine refugee claims faster.”“The visa process will allow us to assess who is coming to Canada as a legitimate visitor and who might be trying to use the refugee system to jump the immigration queue,” Minister Kenney said. “It is not fair for those who have been waiting patiently to come to Canada, sometimes for years, when others succeed in bypassing our immigration system.”Canada regularly reviews its visa policies toward other countries. Countries are aware that if they do not satisfy the conditions of a visa-exemption, a visa may be imposed.This change means that nationals from Mexico who want to travel to Canada will first need to apply for a Temporary Resident Visa and meet the requirements to receive one. It is up to the applicant to satisfy the visa officer their visit to Canada is temporary, they will not overstay their approved time in Canada, they have enough money to cover their stay in Canada, they are in good health, they do not have a criminal record, and are not a security risk to Canadians. These requirements are the same for anyone who wants to visit Canada.Citizenship and Immigration Canada (CIC) has been working to increase processing capacity in Mexico City. Nevertheless, the imposition of the visa will mean short-term delays in travel as CIC puts resources in place. Applicants are encouraged to send their applications by courier or registered mail and to avoid visiting the Embassy unless specifically invited for an interview.“Canada has strong ties with Mexico,” said Minister Kenney. “We continue to welcome all genuine travellers to Canada from this country.”

Saturday, July 11, 2009


Help desperately wanted

Help desperately wanted

Dan Bortolotti, FP Magazine

Here's a suggestion for people with a death wish. Stroll through Windsor, Ont., or a Newfoundland outport, and chat up the older residents about their employment prospects. After you've listened to their tales about massive layoffs in the automotive sector and dried-up opportunities in natural resources, tell them that Canada is facing a labour shortage. Then start running.

Along with sticks and stones, your pursuers will hurl statistics at you. In May, the country hit its highest level of joblessness since 1998 - 8.4% - and staffing firm Manpower Canada reports that a mere 16% of companies are planning to hire new workers in the third quarter of 2009. Canada's GDP shrank by an annual rate of 5.4% in the first quarter of this year, its worst contraction since 1991. Those are dramatic numbers. But they're merely snapshots of the recent past, not a trailer for the feature film. What's coming soon to a city near you are workplaces that will be desperate for young, highly skilled workers. Unlikely as it sounds, Canada is actually in the midst of an ongoing labour shortage.

It's a shortage that will have a substantial impact across wide sectors of the economy as we pull out of the recession, and will grow over the years to follow. According to predictions from the Conference Board of Canada, Ontario may face a shortfall of 190,000 workers by 2020, while Quebec may be short 363,000 workers by 2030. The think tank predicts that British Columbia may be in need of 160,000 employees by 2015, while Alberta may have 332,000 unfilled positions by 2025.

The apparent contradiction between the unemployment rate, which is at an 11-year high, and a labour shortage can be explained by separating the current economic woes from the people in the workforce. The economy can turn around - for better or worse - in mere months, but overall skill levels and demographic patterns take years or decades to change, and it's these long-term trends that are behind the coming crunch. "Right now, with unemployment where it is, labour shortages are the furthest thing from people's minds," says Jim Milway, executive director of the Martin Prosperity Institute, a Toronto-based economic think tank. "But mark my words, this recession will end - whether in six, or nine, or 12 months - and those ‘Help Wanted' signs will be going back up."

To understand why, it helps to point out that the current overall employment situation is not nearly as bleak as the headlines suggest. The numbers are highly skewed by the carnage in manufacturing and construction. Since the spring of 2008, Canada has shed more than 200,000 manufacturing jobs, a staggering decline of about 10%, and lost an additional 100,000 jobs in construction. "Manufacturing of both durable and non-durable goods is the weakest we have seen in our surveys since the first quarter of 1978," says Lori Rogers, vice-president of staffing services for Manpower Canada. It's a rotten time to be a middle-aged auto worker, but routine-oriented physical jobs have been in decline for decades. These occupations have unemployment rates approaching 13%, with little hope for improvement.

The big picture looks quite different, however. Statistics Canada divides the Canadian workforce into two broad categories: the goods-producing sector (manufacturing, construction, agriculture, natural resources and utilities) and the service-producing sector, which lumps together everything else. This latter sector - which employs three and a half times more people than the goods-producing sector - has seen a net increase of 24,000 jobs in the last year. So while the demise of manufacturing jobs has meant hardship for thousands, the service economy is providing livelihoods for more than 13 million Canadians, and that number is growing.

True, recent job gains in the service sector have been modest, well off the growth we saw from 2006 through 2008. But that was during an economic boom and was unsustainable: We had three straight years of unemployment under 7%, a streak we've not seen since the 1960s, before women entered the labour force in significant numbers. In fact, the average annual jobless rate over the past 33 years has been 8.5% - a tick higher than it was in May. We've merely come down from Mount Everest and settled at sea level.

The current hiring freeze at many companies is not going to change the long-term trend. "The recession is actually masking a talent shortage, not only in Canada, but globally," says Manpower's Rogers. There's already a dearth of skilled workers in a wide variety of occupations. Many economists would classify a level of unemployment under 3% as an acute labour shortage, and creativity-oriented workers - a diverse group including scientists and technologists, managers and analysts, lawyers and accountants - now have a jobless rate of just 2.7%. "Unemployment among this creative class is up a bit because of the recession, but it's nothing compared with what you see among blue-collar workers," says Milway.

For example, in high-tech fields such as IT, demand for highly skilled workers remains strong. "I don't think it's ever easy to find good people," says Sarah Weiss, manager of campus programs for IBM Canada. Another sector where worker demand is strong is public administration - local, provincial and federal government departments and agencies, as well as courts and correctional institutions. In nursing, meanwhile, unemployment levels are a minuscule 0.6%, far lower than in any other profession. "There is a well recognized global nursing shortage," says Dr. Sally Thorne, director of the School of Nursing at the University of British Columbia.
And despite the fact that many Canadians seem eager to run their investment advisers out of town, the labour market for business and finance professionals is also tight. A 2009 Manpower survey ranks financial jobs number eight among hard-to-fill positions. Statistics Canada confirms that unemployment in the sector is a mere 2.7% - up from 1.9% in 2008, but still very low. "When it comes to business and finance, contrary to the general perception, in Canada it seems there is still a shortage," says Roger Sauvé of People Patterns Consulting, which specializes in the labour market.

It's worth stressing that creativity-oriented jobs like these are not a lone bright spot in an otherwise dark economic future. On the contrary, they are Canada's economic future, and will be the engine of growth in the years to come. As the number of creative jobs grows, Milway says, they create other opportunities in the service industries. More high-tech workers means more office cleaners to vacuum the cubicles; more accountants working overtime means more take-out restaurant visits on the way home. The Martin Prosperity Institute estimates that creativity-oriented jobs and the services they spawn will make up almost 90% of new positions by 2016. According to Milway, it will be difficult to fill all these new jobs, and while immigration will help, it won't be enough to prevent worker shortages.
Another major factor driving the shortage is our aging population. According to Sauvé, the number of workers aged 55 to 64 has doubled since 1989, while the number over 65 has increased by an astonishing 129%. When the Baby Boomers finally retire, they will leave enormous career opportunities in their wake.

The recession has merely slowed down this demographic inevitability. In many jobs, workers with seniority are the least likely to be laid off, and some workers have delayed retirement so they can rebuild their savings. All of which is creating obstacles for younger people getting jobs - but only temporarily.

The labour shortage will create winners and losers. On one hand, a tight labour market can create big problems for businesses. As companies are forced to raise wages to compete for fewer skilled employees, their costs go up. At the same time, however, a backlog of unfilled positions leads to a drop in production levels. This double whammy of rising costs and lower production is what economists call "wage-push inflation." It can slow economic growth, contribute to a lower overall standard of living, and make the country less competitive in the global marketplace.

The real casualties in Canada's evolving labour force will continue to be those who work in the goods-producing sector, especially manufacturing. Some will successfully complete retraining programs and find work in new fields. Many more, unfortunately, face years of hardship as they compete for a shrinking number of jobs in industries that continue their steady decline.

The winners, of course, will be those with the schooling and skills suited to the new economy. As companies demand more creative, highly skilled workers - a trend already well underway - young, well-educated Canadians can look forward to a fertile job market in the months and years ahead. In the sectors with the greatest needs, the small number of qualified workers should be able to demand higher wages and better working conditions. When the economy improves and these young guns are in high demand, look for them to push back against their employers, lobbying for more flexible hours and family-friendly policies.

The cloud of recession is still hovering above us, and there may be more rain in the coming months. But young Canadians and people in skilled fields can look forward to their day in the sun. "It sounds heartless to say this now," Milway says, "but high unemployment is not a long-term problem."

Friday, July 10, 2009


The past several days have been filled with a number of legislative, regulatory and enforcement developments relating to employer immigration compliance and will certainly be remembered as one of the most important weeks in the history of immigration enforcement.

Here’s a quick review.

July 1, 2009

The month began with the announcement by ICE that an I-9 audit found that nearly a third of the 6,000 workers employed by popular clothing retailer American Apparel appear to lack authorization to work in the United States.

Later in the day, DHS issues a bombshell announcement – ICE will audit the I-9s of 652 businesses across the country. That is more than the total investigations that took place in 2009. The companies were not chosen randomly. According to ICE, they were chosen based on leads and information obtained through investigative means. Last April, DHS Secretary Napolitano noted that enforcement efforts will shift from worksite raids to audits and investigations targeting employers and this is one of the first major signs of the seriousness of the White House in carrying out its announced strategy.

July 7, 2009

ICE announced that well known company Krispy Kreme has been fined $40,000 after it found the company employed dozens of illegally present immigrants at a plant in Cincinnati, Kentucky.

Senator Charles Schumer (D-NY), the chair of the Senate’s Immigration Subcommittee told the Associated Press that he will introduce the long-anticipated comprehensive immigration reform legislative package before Labor Day, suggesting that the bill will, in fact, will be debated in the near term. The bill will have major repercussions for American employers including provisions to legalize millions of unlawfully present workers and major new employer compliance rules (such as a requirement that all employers in the country use e-Verify). A major open issue is how the bill will deal with the future flow of immigrants to the country.

July 8, 2009

The White House announces decisions on two major rules issued by the Bush Administration that are currently tied up in the courts. First, the White House indicated that it intends to implement a rule mandating federal contractors use the E-Verify electronic employment verification system. The rule is now set to take effect September 8th. One of the issues that has caused the rule to be challenged in the courts is a requirement that existing employees who are working on a contract be run through E-Verify. The normal E-Verify rules require only new hires be run through the system. A rumored compromise by the Administration on this issue remains unaddressed by the Administration in its announcement.

The White House also announced that it is rescinding the controversial social security no-match rule which outlines specific procedures for employers to follow after receiving such letters and the penalty for not following the procedures is a potential finding of knowingly hiring unauthorized workers. Some estimate that as many as four million people are working on false social security numbers so the potential impact of the rule could be massive.

Later in the day, the Senate approves the first of three important E-Verify amendments to the Department of Homeland Security spending bill for fiscal year 2010. Senator Jeff Sessions (R-AL) introduced Amendment 1373 which permanently reauthorizes the E-Verify program and codifies the federal contractor E-Verify regulation. Senator Schumer attempted to table the amendment. That effort failed by a 44 to 53 margin and the amendment then passed by voice vote. The underlying spending bill already had a three year extension for E-Verify, but critics of the amendment expressed concerns that a permanent program would not receive the same level of oversight as a pilot program. The contractor provision seemed a little less important after the White House announcement, but it also contained a provision specifying that existing employees working on contracts are to be put through the system. This seemingly weakens the plaintiffs’ lawsuit challenging the regulation and may tie the White House’s hands as far as negotiating on that issue.

July 9, 2009

Senator David Vitter (R-LA), is successful in getting a positive voice vote on Amendment 1375 to the DHS spending bill. The amendment would bar DHS from using its budget to revoke the federal contractor or no-match rules. The first part appears to be largely moot as the White House indicated it will move forward to implement the contractor rule. But the second part runs contrary to the White House announcement from the 8th. The White House would seem to have the upper hand, however, since the amendment only bars spending 2010 budget money to rescind the no-match rule. The rule will likely be rescinded in the next few weeks, however, so it should not need 2010 money to make it happen. This could explain the timing of the White House announcement.

Finally, Senator Chuck Grassley (R-IA) succeeded in getting a positive voice vote on an amendment that will give employers the option to run current employees through E-Verify instead of only new hires.

Within minutes of the announcement of the passage of Senator Grassley’s amendment, the spending bill was passed by the Senate.


Canadian Vislaw International member lawyer Sergio R. Karas was interviewed last night in the prime time program "Headline" on Business News Network (BNN) on the impact of the economic downturn on immigration and business. Here is the clip of the interview:

Saturday, June 13, 2009


Sergio R. Karas will Chair a distinguished panel of senior government officials to learn about how Service Canada Foreign Worker Program operates in the new economic reality, on Monday, June 15, 2009 at the Ontario Bar Association. Fo rmore information, please see:

Thursday, May 28, 2009


Where the jobs are: skilled professions


From Thursday's Globe and Mail, Thursday, May. 28, 2009 07:10AM EDT

More Canadians may be searching for work, but a report to be released today suggests some sectors are still having trouble filling certain positions.

Skilled trades, such as carpenters and plumbers, along with sales reps, engineers, technicians and accountants are the jobs employers are having most difficulties filling, a Manpower Canada survey of 1,909 employers shows.

The survey comes as the recession has thrown more than 321,000 Canadians out of work, sending the jobless rate to a seven-year high of 8 per cent. Yet even as joblessness rises, today's list suggests demand remains for some skilled professions.

"These results indicate that while more people may be looking for jobs, they don't generally have the skills that organizations are looking for," the report said.

The survey comes on the heels of a new report on Canada's job market, prepared for the federal and provincial labour ministers and obtained by The Globe and Mail, which detailed inefficiencies in the way the country collects and shares information about employment. That report found, for example, little co-ordinated knowledge about job vacancies across the country, or how many people are graduating from postsecondary training and what skills they have.

The Manpower survey also comes as the federal government is boosting spending on job retraining in response to rising unemployment. Some economists believe the jobless rate will veer into double-digit territory - around 10 per cent - over the coming year.

"As people consider work, they now have the opportunity to look at where the talent shortages exist for Canada, and what would suit them in terms of interest and aptitude," said Nadia Ciani, Manpower's vice-president of human resources.

Compared with previous years, the fastest-growing area for jobs lies in engineering, personal assistants and teachers, particularly at the postsecondary level, Ms. Ciani said.

Canadian companies, many of which have downsized in recent months, are far less concerned about talent shortages than they were a few years ago. Just 24 per cent of employers this year said they have difficulty filling positions, far fewer than in 2006, when 66 per cent of them were worried.

The survey was conducted in January and is part of an annual global Manpower release that polled 39,000 employers. Worldwide, it found that 30 per cent of companies are still having difficulty filling certain positions, and that the most sought-after jobs are much the same as in Canada - skilled trades, sales reps and engineers - along with managers and production operators.


Workers wanted

The top 10 jobs Canadian employers are having trouble filling, according to a new survey by Manpower Canada:

1. Skilled trades, such

as carpenters or plumbers.

2. Sales representatives.

3. Engineers.

4. Technicians, such as audio or dental technicians.

5. Secretaries and office support staff.

6. Teachers, particularly at

postsecondary level.

7. Drivers.

8. Accounting and finance.

9. Labourers.

10. Nurses.

Source: Manpower Canada

Sunday, May 24, 2009


May 24, 2009

New Requirements on Border ID Stir Worries at Crossings

New York Times

WASHINGTON — After years of delay and hundreds of millions of dollars in preparations, Customs and Border Protection officials said new security measures would go into effect on June 1, requiring Americans entering the country by land or sea to show government-approved identification.

Currently, Americans crossing borders or arriving on cruise ships can prove their nationality by showing thousands of other forms of identification. But after the start of the Western Hemisphere Travel Initiative, Americans will be required to present a passport or one of five other secure identification cards.

Coming as the summer vacation season starts, the measure is expected to lengthen lines at least temporarily at border crossings and seaports. But the biggest impact is expected along the nearly 4,000-mile border that the United States shares with Canada, which both countries once boasted was the world’s longest undefended frontier.

Before the Sept. 11 terrorist attacks, Americans and Canadians crossing that border were required to do little more than state their nationality. Security has been gradually increased since then, causing longer lines and a steady drop in casual cross-border excursions, according to business and travel associations that monitor border traffic.

Now some local and state officials are concerned that the new measures might further disrupt a major trading relationship for the United States and drive apart border communities that have deep economic and cultural ties.

“We treat Canada like going to Ohio or to Chicago for the weekend,” said Sarah Hubbard of the Detroit Regional Chamber of Commerce. “We have families living on both sides of the border. We have business partnerships on both sides of the border.

“We believe our community is unique because it is bi-national,” Ms. Hubbard added. “It’s seamless in many ways.”

Nearly 20 percent of all land trade between the United States and Canada — valued at an estimated $130 billion — crosses the Ambassador Bridge between Detroit and Windsor, Ontario, according to the Bureau of Transportation Statistics. Ms. Hubbard said some 461,000 trucks, buses and cars crossed the Ambassador Bridge each month.

She said an estimated 4,000 Canadian health care workers commuted into Detroit to work. And the manufacturing industry is so transnational, she said, that a single car can be sent back and forth across the border 12 times before the finished product is ready to be shipped to a dealer.

Still, she said, cross-border traffic has fallen since Sept. 11. Traffic across the Ambassador Bridge is down by nearly 100,000 crossings a month this year compared with last year, Ms. Hubbard said. Representative Louise M. Slaughter, Democrat of New York, said that at border crossings in her state, traffic was down 13 percent to 19 percent this year from what it was last year.

Ms. Hubbard said some of the decline had been caused by the recession. But some of it she attributed to “confusion about documents and hostile treatment by border officials.”

“We have many people who come from Canada and tell us they don’t feel welcome when they cross the border,” she said. “We talk about those complaints with our friends on the border, and they tell us their job is security, not customer service.”

Janet Napolitano, the homeland security secretary who forged her political career on the southern border and plans to travel to the northern border next week, makes no apologies for the tightened security measures, including using unmanned Predator aircraft from Grand Forks Air Force Base in North Dakota to patrol the border with Canada.

Ground sensors were added along the border in Vermont, and towers equipped with cameras and sensors are being built around Buffalo.

“One of the things that I think we need to be sensitive to is the very real feeling among southern border states, and in Mexico, that if things are being done on the Mexican border, they should also be done on the Canadian border,” Ms. Napolitano said at a recent conference on the northern border at the Brookings Institution.

Her comparisons between the northern and southern borders have stirred outrage in Canada, where 80 percent of the population lives within 100 miles of the border and the government considers itself one of America’s most reliable allies.

Seizures of illegal drugs and the detention of immigrants along the northern border are a small fraction of what they are along the southern one, which is considered the busiest transshipment point for illegal immigrants and drugs in the world.

Still, Canadian officials said that their government, like the United States, had become much more sensitive to terrorism threats since Sept. 11. Canada has invested heavily, they said, in improving immigration controls, upgrading security at airports and seaports, sharing intelligence with its allies, and establishing its own homeland security agency, which includes joint American-Canadian border enforcement teams. And Canadian border guards began getting their first weapons in 2007, after years of debate about whether they should be armed.

A Canadian diplomat in Washington said his country’s biggest diplomatic problem had been dealing with the American perception that Canada poses a threat because of its open immigration policy and concerns that it is a haven for terrorists. “We spend a lot of time trying to explain the fact that just because you don’t have the National Guard or a fence along the border, it doesn’t mean it’s not secure,” said the diplomat, who asked not to be identified because of the sensitivity of his comments.

Plans to put the Western Hemisphere Travel Initiative into effect two years ago were postponed because of a significant backlog in passport applications and delays getting sufficient staff and equipment in place.

In a meeting with reporters on Wednesday, Jayson P. Ahern, acting commissioner of Customs and Border Protection, said Congress had allotted $350 million to help the agency resolve those problems.

Mr. Ahern said recent surveys of drivers across the border suggested that more than 80 percent of them had the required identification. The State Department, he said, has issued a million passport cards, wallet-size identification. And at least two million other people have gotten one of the four other kinds of acceptable border crossing cards.

“I don’t expect any major delays or traffic jams as a result of this program,” Mr. Ahern said. “There will be no story on June 1.”

Monday, May 4, 2009


Border guards break rules allowing criminals into country: report

The Canadian Press
17 hours ago

OTTAWA — Border guards have been breaking rules in allowing hundreds of serious criminals to come to Canada, says an internal review.

The Canada Border Services Agency allowed 535 people convicted of serious crimes to enter the country last year for compassionate or economic reasons, under so-called temporary resident permits.

And a sample of about half those cases found a litany of problems, including failure to get the required permission from the immigration minister's designated officials.

The internal review also found the files frequently lacked key information about exactly why some criminals were given a pass into the country - some for repeat visits.

A draft copy of the report was obtained by The Canadian Press under the Access to Information Act.

The findings confirm and expand upon a critical examination of the border service last year by the federal auditor general, who also found incomplete documentation and sloppy standards.

Under Canada's immigration rules, border guards can issue temporary resident permits to people who would otherwise be barred from Canada, whether for medical reasons or past criminality.

Exceptions are supposed to be made only for humanitarian or compassionate reasons, or for the economic benefit of Canada.

The review cites one example in which a hunter with a criminal past might be allowed into the country because a Canadian outfitter would otherwise lose money.

The permits, which cost $200, are valid for between a day and three years, depending on the decisions of individual officers.

Canada has no exit controls, relying instead on the honour system. Expiry dates on the permits are neither monitored nor enforced unless the ex-offender comes to the attention of authorities for unrelated reasons, such as a fresh crime.

Most permits related to criminality are issued to Americans with drunk-driving offences. But each year hundreds of permits are also handed to persons convicted of "serious" crimes, defined as offences that, if committed in Canada, would be punishable by a maximum prison sentence of at least 10 years.

Agency investigators last fall visited nine border offices - including the airports in Vancouver, Calgary, Ottawa, Montreal and Halifax - where they examined 628 files for permits issued to people convicted of past criminal activity.

The land borders visited were at Coutts, Alta., Landsdowne, Ont., Fort Frances, Ont., and Lacolle, Que. All locations were chosen because of the high number of such permits issued over the previous two years to people with past criminality.

The list of crimes included child molestation, fraud, automobile homicide, burglary, bank theft, arson, cocaine trafficking, handgun possession and other offences.

Of the 628 permits examined, 282 went to people convicted of serious criminality.

The review team found that officers failed to get permission from senior officials delegated by the immigration minister for 31 of those serious criminals, as required under the rules.

That's 11 per cent of all such cases and, if consistent for the entire year, would mean about 59 people convicted of serious crimes were not properly vetted before they were allowed to enter the country in 2008.

"Given that concurrence is a requirement for all serious criminality cases, there is need for some improvement," says the report.

The files also lacked key documentation in more than half the cases that would justify these decisions.

Investigators were also concerned that about a third of the permits they examined allowed the person to re-enter Canada, rather than having to re-apply for permission.

The report questioned why such persons should not be required to re-apply abroad each time they intended to visit Canada.

A spokeswoman for the Canada Border Services Agency did not respond to requests for comment.

Sunday, May 3, 2009


Shaky refugee system let in killer

Shaky refugee system let in killer

Paul Morse
The Hamilton Spectator

(May 2, 2009)

As the mystery of how a convicted double killer managed to enter Canada as a refugee deepens, experts say our overburdened refugee system is likely partially to blame.

"At this point, the system is close to collapse," said Sergio Karas, a Toronto immigration lawyer and past chair of the International Bar Association Immigration and Nationality Committee.

The 1990s "was the time of the highest influx of refugees, because we had people coming from China, because of Tiananmen Square, the Balkan crises and war in Latin America in Nicaragua and El Salvador."

It was also the time of the breakup of the Soviet Union, he said.

"The system was overtaxed at the time, and the system continues to be overtaxed."

Canada's Immigration and Refugee Board (IRB) says it cannot make any information public about the case of Elvir Pobric, 37, a Bosnian landed immigrant arrested this week in Calgary on a Canada-wide immigration warrant.

According to authorities, Pobric shot two foreign-currency dealers to death and robbed them of large sums of money in a small village in northeastern Bosnia on April 4, 1992, just days before the outbreak of ethnic violence between Bosnian Serbs and Muslims.

Pobric was caught and sentenced to 20 years in prison. According to Interpol, Pobric broke out of prison in 1996 and disappeared from view.

Pobric entered Canada as a refugee under his own name sometime between 1996 and 1999, living first in Ottawa and then moving to Hamilton, where he became an aluminum siding contractor. Now married with a young family, the Bosnian immigrant set up a permanent home in Grimbsy.

Two years ago, he began working in Calgary and commuted home to Grimsby every month or so. Hamilton police and the Canada Border Services Agency began to hunt for him when Hamilton police Chief Brian Mullan received two letters from the daughter of one of his victims. She said Pobric was in Hamilton and begged Mullan to return him to prison.

But members of Pobric's family say the contractor had been interned in Serbian "detention camps" and was under the eye of the International Committee of the Red Cross (ICRC) until his legal release in November 1996.

Relatives yesterday handed over a document to the Canadian Red Cross in Hamilton with an ICRC stamp on it that lists Pobric's release from prison on Nov. 6, 1996.

Canadian Red Cross officials say they are checking the veracity of Pobric's story with ICRC delegations in Washington and Geneva.

During the Balkan conflict, refugees entered Canada either by arriving in the country and claiming refugee status or through Canada's government sponsored resettlement program, which fast-tracked refugees in war-torn regions and transported them to Canada.

Morteza Jafarpour, executive director of Hamilton's Settlement and Integration Services Organization (SISO), said it was not uncommon for refugees to use fake documents to escape horrific genocide or persecution so they could make a better life in Canada.

"Whether (Pobric) escaped from prison or was released is irrelevant," said immigration expert Karas.

"The only thing that is relevant from an immigration point of view is, first, does he have a criminal history, and, two, how come nobody picked it up?"

Monday, April 6, 2009


Marriage Fraud Targeted

Lawsuit Filed; Group seeks immigration changes

John Ivison, National Post

Reena Bhandari, a psychiatric nurse from Ottawa, feels she's been let down by Canada's immigration system.

She married an Indian widower called Manjeet Singh Bagga in August, 2001, after meeting him through a Sikh match-making Web site. Mr. Bagga and his daughter from his previous marriage arrived in Canada the following July, having been sponsored by Ms. Bhandari. But Ms. Bhandari said it was a marriage of convenience for Mr. Bagga, who was only interested in her money and the opportunity to gain Canadian citizenship.

She is part of a 100-member class-action lawsuit filed by an organization called Canadians Against Immigration Fraud that has been lodged against the federal government for failing to deport foreigners who misrepresent themselves and lure Canadians into marriage.

A lawyer for the case that has commenced at Federal Court, Julie Taub, wants the government to tighten up the Immigration and Refugee Protection Act so that it more closely mirrors laws in countries such as Australia and the United States. In Canada, there are no conditions that state the spouses even have to live together, while in other countries the authorities follow up to see if the marriage is genuine.

In Australia, permanent visas are not issued until a waiting period of two years and the spouses have to have been in a relationship for a year before lodging an application. The United States issues conditional permanent residence status, which requires spouses to prove that they did not get married to evade immigration laws after a two-year period. "It highlights a problem in the legislation that would be so easy to remedy to prevent a non-stop infusion of fraudsters," said Ms. Taub.

The government claims in its defence that it has 600 files involving immigration fraud and only a limited number of officers to process them.

In Ms. Bhandari's case, the marriage quickly descended into acrimony -- "I felt like I was being used as a bank machine. He was not interested in me -- money was his only priority," she said. The relationship eventually ended in April 2004, when Mr. Bagga said he had to return to India to deal with a court case. He had told Ms. Bhandari that his first wife had died in a car accident but she said she subsequently found Indian court papers that showed Mr. Bagga and three members of his family were charged, and later acquitted, of attacking his wife with acid, causing injuries from which she died.

Mr. Bagga said that he and his family were all cleared after a thorough investigation. "There was no conviction," he said late last week from Ottawa. However, Ms. Bhandari said that Mr. Bagga did not disclose that there were charges pending against him when he applied for permanent resident status, answering "no" to the question that asked him if he'd been charged with any crime in any country.

Ms. Bhandari said she tried to bring this to the attention of the Immigration department before Mr. Bagga was able to get full Canadian citizenship but that her efforts were ignored.

Mr. Bagga said Ms. Bhandari filled in the form for him. "I wasn't used to filling in these forms and so signed whatever she put in," he said. He denied that he had entered into the marriage in bad faith just to get into Canada. "My marriage was never a fraud. I never wanted to come here--it was her idea. I had a good life and good job in India," he said.

The two have divorced. Mr. Bagga has since been granted Canadian citizenship.

Saturday, March 7, 2009


The Supreme Court of Canada yesterday restored the deportation against a street racer found guilty of manslaughter, who had argued that he should be allowed to remain in Canada based on "humanitarian and compassionate" reasons. His apparently "light" criminal conviction sparked outrage in British Columbia at the time.

Here is a summary of the decision. For those interested in the full text, it can be found at:

Canada (Citizenship and Immigration) v. Khosa

Present: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the federal court of appeal

K, a citizen of India, immigrated to Canada with his family in 1996, at the age of 14. In 2002, he was found guilty of criminal negligence causing death and received a conditional sentence of two years less a day. A valid removal order was issued to return him to India.

K appealed the order, but the majority of the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board, after considering the Ribic factors and the evidence, denied “special relief” on humanitarian and compassionate grounds pursuant to s. 67(1)(c) of the Immigration and Refugee Protection Act (“IRPA”). A majority of the Federal Court of Appeal applied a “reasonableness” simpliciter standard and set aside the IAD decision. It found that the majority of the IAD had some kind of fixation with the fact that the offence was related to street‑racing. On the issue of the “possibility of rehabilitation”, the majority of the IAD merely acknowledged the findings of the criminal courts in that regard, which were favourable to K, and did not explain why it came to the contrary conclusion. In the end, that court concluded that the majority of the IAD had acted unreasonably in denying relief.

Held (Fish J. dissenting): The appeal should be allowed.

Per McLachlin C.J. and Binnie, LeBel, Abella and Charron JJ.: This Court’s decision in Dunsmuir, which was released after the decisions of the lower courts in this case, recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision makers in matters that relate to their special role, function and expertise. A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication. These general principles of judicial review are not ousted by s. 18.1 of the Federal Courts Act which deals essentially with grounds of review of administrative action, not standards of review. [25]

A legislature has the power to specify a standard of review if it manifests a clear intention to do so. However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters. [51]

Resort to the flexibility of the general principle of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision makers who operate in different decision‑making environments under different statutes with distinct grants of decision‑making powers. [28][33]

The language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. Despite a difference in the meaning of the English and French versions in the relevant language of s. 18.1(4), the provision should be interpreted to permit a court to exercise its discretion in matters of remedy depending on the court’s appreciation of the respective roles of the courts and the administration as well as the circumstances of each case. The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes the general principles dealt with in Dunsmuir. [36]

Dunsmuir establishes that there are now only two standards of review: correctness and reasonableness. No authority was cited suggesting that a “correctness” standard of review is appropriate for IAD decisions under s. 67(1)(c) of the IRPA, and the relevant factors in a standard of review inquiry point to a reasonableness standard. These factors include: (1) the presence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of the question at issue before the IAD — Parliament has provided in s. 67(1)(c) a power to grant exceptional relief and this provision calls for a fact‑dependent and policy‑driven assessment by the IAD itself; and (4) the expertise of the IAD dealing with immigration policy. These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case. [53‑54][56‑57]

Where, as here, the reasonableness standard applies, it requires deference. Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes. In this case, the question whether K had established “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order was a decision which Parliament confided to the IAD, not to the courts. [4][59]

The IAD reasons, both the majority and dissent, disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome. At the factual level, the IAD divided in large part over differing interpretations of K’s expression of remorse. This is the sort of factual dispute which should be resolved by the IAD not the courts. The majority considered each of the Ribic factors, reviewed the evidence and decided that, in the circumstances of this case, discretionary relief should be refused. While the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), were properly noted, the IAD had a mandate different from that of the criminal courts. The issue before it was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other relevant factors, they warranted special discretionary relief from a valid removal order. The IAD was required to reach its own conclusions based on its own appreciation of the evidence and it did so. [64‑66]

In light of the deference properly owed to the IAD under s. 67(1)(c) of the IRPA there was no proper basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case. It cannot be said that this decision fell outside the range of reasonable outcomes. [60][67]

Per Rothstein J.: Where a legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge. With respect to s. 18.1(4) of the Federal Courts Act, the language of para. (d) makes clear that findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”. By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). Where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language, as it has in para. (d) regarding facts. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context. [70] [72] [113] [117]

While recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the Federal Courts Act. Courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis. The Dunsmuir standard of review should be confined to cases in which there is a strong privative clause. Excepting such cases, it does not apply to s. 18.1(4). The application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis. [70] [74] [106] [136]

The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system. The creation of expert administrative decision makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas, but it was only with the enactment of privative clauses, which marked the area of tribunal expertise that the legislature was satisfied warranted deference, that a legislature indicated an intent to oust, or at the very least restrict, the court’s review role. Whereas tribunal expertise was a compelling rationale for imposing a privative clause, it was not a free‑standing basis for deference. The approach of judicially imputing expertise which followed, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise. [79][82‑84][87]

There is no dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision makers on questions of fact and on questions involving mixed fact and law, where a legal issue cannot be extricated from a factual or policy finding. However, where a legal issue can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause. It is not for the court to impute tribunal expertise on legal questions absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed. Recognizing expertise as a free‑standing basis for deference on questions that reviewing courts are normally considered to be expert on departs from the search for legislative intent that governs this area. [89] [90] [91] [93]

Concerns regarding the rigidity of the legislated standards are misplaced. A review of the Federal Courts Act makes clear that the focus of the analysis should be on the nature of the question under review and not on the type of administrative decision maker. Even given this legislative focus on the nature of question under review, not all administrative decision makers will be subject to the same standards of review. Where a decision maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted. [109‑110]

Section 18.1(4) confers on the Federal Courts the discretion to grant or deny relief in judicial review. The remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself. The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies which is wholly distinct from the common law of standard of review analysis. Reliance upon this discretion contained in s. 18.1(4) to support the view that it opens the door to the Dunsmuir standard of review analysis is inappropriate. [131] [135] [136]

The IAD’s decision not to grant relief in this case should be upheld. The application of the Ribic factors to the case before it and its exercise of discretion is fact‑based. The IAD’s factual findings were not perverse or capricious and were not made without regard to the evidence. [137]

Per Deschamps J.: There is agreement with Rothstein J. that since s. 18.1(4) of the Federal Courts Act sets legislated standards of review, those standards oust the common law. [138]

Per Fish J. (dissenting): The standard of review applicable is "reasonableness", and the IAD’s decision does not survive judicial scrutiny under that standard. The IAD’s task was to look to "all the circumstances of the case" in order to determine whether "sufficient humanitarian and compassionate considerations" existed to warrant relief from a removal order. The IAD placed the greatest weight on three factors: K’s remorse, rehabilitation, and likelihood of reoffence. Despite abundant evidence that K was extremely unlikely to reoffend and had taken responsibility for his actions, the IAD focussed on a single fact — K’s denial that he was “street racing” — and based its refusal to grant relief largely on that fact alone. While K’s denial may well evidence some “lack of insight”, it cannot be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence. The IAD’s cursory treatment of the sentencing judge’s favourable findings on remorse and the risk of recidivism are particularly troubling. While a criminal court’s findings are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the sentencing judge’s decision. K’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence. The IAD’s conclusion that there was "insufficient evidence" upon which a determination could be made that K does not represent a risk to the public is not only incorrect, but unreasonable. Decisions of the IAD are entitled to deference, but deference ends where unreasonableness begins. [139‑40] [145] [147] [149‑151] [153‑154] [160]