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June 2003
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Team of Canadian lawyers suing Government!
This Immigration newsletter is a monthly publication brought to you by SAJ International, Immigration Lawyers based in Vancouver, BC, Canada. It is aimed at providing the latest information and issues regarding Canadian Immigration law. This newsletter may be redistributed without permission.
Subscribers who wish to obtain specific information should refer
to the Immigration and Refugee Protection Act 2002
and the accompanying Regulations and/or consult a Canadian
lawyer. |
In this issue
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Immigration
Lawyers taking Immigration Department to task
Canadian Immigration lawyers have started
a $400-million class-action lawsuit against the federal government,
arguing that tens of thousands of potential immigrants are being
cheated out of a chance to come to Canada.
The case stems from the government's decision in December,
2001. Instead of applying the new criteria only to new applicants,
the government decided that existing applicants would face
the new rules if their cases had not been processed by 31
March 2003.
The lawyers are asking the Federal Court to order the Immigration
Department to process potential immigrants under the old criteria
even though the March 31 deadline is past. Failing that, they
want the government to refund the applicants' fees — $500
to $2,000 depending on the size of the family — and other
costs, including legal fees that could be thousands of dollars
per applicant.
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| Arranged Employment
There are six factors of selection under the new Federal
Skilled Worker Scheme: Education, Language Ability, Work Experience,
Age, Arranged Employment and Adaptability. The pass mark is
75 points.
If an applicant has an Arranged Employment, he/she gets an
additional 10 points and possibly further 5 points under the
Adaptability factor. Most applicants have the impression that
they can easily get the extra points for Arranged Employment
on the basis that they have a job offer from an employer in
Canada.
The new Immigration Regulations set out the definition of
arranged employment and identify the types of situations that
will enable applicants to earn points of assessment. "Arranged
employment" is defined as "an offer of indeterminate
employment in Canada". The applicant must be able to
perform or be likely to accept and carry out the employment.
The Canadian immigration authorities may take into account
the applicant's education and training, background and prior
work experience to determine if the applicant meets this requirement.
Points may be awarded for Arranged Employment if the applicant
does not intend to work in Canada before being issued a permanent
resident visa and does not hold a work permit.
Human Resources and Skills Development Canada (HRSDC) needs to approve
the job offer and it determines if the offer is genuine. The
offer must be on an indeterminate basis if the permanent resident
visa is issued.
There are additional benefits for the applicant who has secured
arranged employment. He/she will be exempt from having to
meet the requirements for settlement funds and will most probably
get an interview waiver. An officer will be more willing to
consider exercising positive discretion in favour of the applicant,
should this be necessary.
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"So-called"
Consultants
A Report published this May asks the Canadian government
to move quickly to crack down on unscrupulous immigration
consultants who prey on innocent immigrants.
The landmark report recommends that the government should
regulate the immigration consultants, requiring those who
want to deal with the federal government to be accredited
by a new authority, meet minimum qualifications and adhere
to a code of conduct.
The Committee also recommends a disciplinary body be set
up with powers to impose fines of up to $50,000 and disqualify
someone from practising as an immigration consultant and to
create a fund to compensate the victims of dishonest consultants.
The Minister vowed to move quickly to implement its recommendations.
"There are too many bad stories and I want to act this
year. We know that some immigration consultants use, or fabricate,
fraudulent documents. We know that some immigration consultants
abuse their clients' trust.“
The Committee says the problem of unscrupulous or incompetent
people who set themselves up as consultants has plagued the
immigration system for years and there is no control over
the training people should have before being able to call
themselves immigration consultants.
"We know that some immigration consultants have little
or no training, education or experience in immigration law,
policies or procedures and yet hold themselves out to the
unwitting applicant as immigration authorities."
The committee makes it clear that its recommendations won't
stop all abuse because there is little the government can
do to stop those operating entirely overseas and foreign police
appear unwilling to act.
"It is not possible for us to regulate all the people
in the world [and there are far, far too many] who give advice
about immigration to Canada. We can and must, however, regulate
with whom the Government of Canada will do business."
The committee recommended that only lawyers and licensed
immigration consultants be allowed to practice.
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Case Law
Summary (Federal Court of Canada)
Student Visa - Sufficiency of funds (SUN YUE 2003 FCT - APRIL
2003)
Justice O’REILLY: …application was turned down
on the grounds that she had failed to provide sufficient proof
of the availability of adequate funds. Ms. Sun had proof of
financial support from her parents and an aunt in Canada.
Her parents had savings of about $33,000 and the aunt had
about $70,000. The aunt indicated that she would be providing
accommodation and would be prepared to pay all other expenses.
Her parents had good jobs in Mongolia, but even their combined
salaries would have made it difficult for them to have saved
a substantial amount of money. The same was true of the aunt,
who earned about $28,000 a year. The officer asked Ms. Sun
to provide banking documents for the previous 18 months for
both her parents and her aunt. Presumably, those banking documents
would have shown how the funds came to be accumulated in the
respective accounts. Clearly, the officer was convinced that
the funds had been borrowed but were not really available
for her studies.
Ms. Sun produced reliable records … (and the Court
has) to assess whether the visa officer made demands that
were unduly onerous. His decision to deny a student authorization
to her constituted reviewable error. The Application is allowed.
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Latest SAJ
News
SAJ is pleased to announce the latest addition to its list
of prestige offices around the world. Our first Bangla Desh
office started business on June 1, 2003. Located in the heart
of the business district of the capital, Dhaka, in the elegant
Unique Trade Center, SAJ Dhaka will be a full service office.
Our Manager is Mr. Mohammed Moniruzzaman, email: dhaka@passportcanada.com.
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