Amnesty to illegal immigrants in Canada by the Canadian government - By Mr. Rezaur Rahman (Barrister & Solicitor)

Like all Canadians I am hit with snow storm and pile of snow. I am not fussy about winter. The more you try to resist it the more you become grumpy; therefore I go along with it. Shoveling snow, enduring chilling temperature and trying to keep your smile even though you feel like you have just received strong and paralyzing anesthetic (BOTOX ?) in your face is part of Canadian life.

No, its not snow that makes me exasperated, it is the annual rumor mill that sometimes drains my energy. Since I came to Canada 16 years ago, I have been listening to different kinds of rumors every year. One of the popular rumors that often come back at the end of every year is a declaration of amnesty to illegal immigrants in Canada by the Canadian government.

For some reason some people believe that the Canadian government wants to make people happy at the Christmas time or on the eve of New Year and therefore it has decided to grant amnesty to illegal immigrants. Well, it has not happened so far and there is no sign of that happening in the near future. When the year draws to its end I am hit by a barrage of phone calls from my beloved deshi brothers and sisters. When I politely disagree with them about the declaration of amnesty, some of them even try to convince me to call the Ministry of Citizenship and Immigration to confirm their statement. They nicely tell me that probably I missed that very important announcement due to my busy work schedule.

A new rumor has been floating this year for the last couple of months. Some people (Canadian citizens or Permanent Residents) believe that if they start living in Manitoba or Saskatoon and invest a certain amount of money they will be able to sponsor 20 persons to immigrate to Canada . This is a flat lie. There is no such program.

Every year thousands of temporary foreign workers are coming to Canada to work for a few years. In most of the cases an employer in Canada files an application to Human Resources and Social Development Canada (HRSDC) for a Labor Market Opinion (LMO) for a particular category of employment. In that application, the Canadian employer explains that he has tried to hire a Canadian citizen or a Permanent Resident in a particular position but did not get a qualified candidate. The employer must submit proof of newspaper advertisement, job bank postings or job fair participation as an initiative to hire employee.

The HRSDC must be satisfied about the genuineness of the offer of employment and the employers' effort to hire a Canadian or a Permanent Resident at first. The HRSDC will issue a positive Labor Market Opinion (LMO) if it is convinced that hiring a foreign national will not affect the Canadian Labor Market negatively. The effect must be positive or neutral.

So obtaining a positive LMO is a first step to hire a foreign worker. Once the LMO is granted, the employer will send that to the prospective foreign worker who will then submit his application for Work Permit and the LMO at the designated Canadian Visa Office for his country. The Visa Officer will interview the applicant and will issue the Work Permit to him if he finds the applicant eligible.

It is therefore important, for a Bangladeshi who wants to come to Canada as a foreign worker, to first find a prospective employer who is willing to hire the applicant. One must be very careful about the THIRD PARTY who works as an intermediary between the employer and the applicant. Sometimes this THIRD PARTY charges high commission or service fees and cheat people by arranging false job offer or by getting employment offer for a job that does not yield enough savings.

Always be careful if the job offer sounds too good to be true. Try to understand why an employer in Canada is willing to hire you or why he will wait for months to get you to Canada . Definitely there are jobs available for foreign workers in Canada . There is extreme shortage of manpower in some sectors of employment but once again never put your guard down against suspicious job offers or activities of THIRD PARTY.

There is another false belief among applicants that if they come to Canada as foreign workers they will eventually become permanent residents of Canada . Please remember that a Foreign Worker comes to Canada to meet the labor shortage in different sectors. The category is known as Temporary Foreign Worker.

However once an applicant is in Canada he can apply for Permanent Resident as a Skilled Worker. To apply he must achieve minimum 67 points on the basis of different factors. His Canadian job experience will enhance his points. No such application can be filed in Canada . The application must be submitted at a Canadian Visa Office that is designated for the country of citizenship or permanent residence of the applicant. For example an applicant from Bangladesh who is now working in Canada must submit his application at the Canadian High Commission in Singapore . Or alternatively he can file application at the Canadian High Commission in another country if he has at least one-year visa for that country. So if the applicant has a visa for one year in the U.S, he can file his application at the Canadian Consulate in Buffalo , New York .

Applicants who are applying for permanent resident status under the skilled worker category can obtain extra points if a Canadian employer offers him a job. This offer must be approved by the HRSDC. The approval is issued as “Arranged Employment Opinion (AEO)”. The applicant cannot obtain any work permit on the basis of an AEO. It is issued only to support the applicant's application for Permanent Residence of Canada.

The only work that leads to Permanent Residence is the work as a Live-in Caregiver. I will discuss that category in my next Blog. I believe the Bangladeshis are far behind the citizens of many countries who enjoy the benefit of this category.

Well, the following are the categories of jobs in the Province of Ontario (There are lists for some other provinces too) for which there are not enough Canadian citizens or Permanent Residents of Canada available. The Canadian government is therefore exempting the employers from filing extensive proof of their recruitment effort in Canada . They must prove that they advertise on the Government of Canada's National Job Bank or the regional equivalence for at least 7 days or they have already established an ongoing recruitment mechanism such as using recognized internet sites, unions, professional sites, newspapers, newsletters, professional journals to hire employees. If you can find a suitable employer who wants to hire an employee for the following occupations, your application may be processed quickly.

The following part is not written by me and it is the reproduction of the material that is available in the website of the HRSDC: http://www.hrsdc.gc.ca/en/workplaceskills/foreign_workers/oup/onouplist.shtml

The following information is reproduced with no commercial intention but with the intention of disseminating useful information to the public in general:

Regional Occupations under Pressure List for Ontario

A new process has been developed to assist employers who are experiencing difficulty filling job vacancies. HRSDC/Service Canada is implementing Regional Occupations under Pressure lists to reduce the amount of time for an employer to hire a temporary foreign worker.

Employers wishing to hire temporary foreign workers for occupations that appear on a Regional Occupations under Pressure list will only be required to conduct minimum advertising efforts rather than the more comprehensive recruitment efforts normally required under the Temporary Foreign Worker Program. However, employers will still need to satisfy all other Temporary Foreign Worker Program requirements.

Employers who wish to hire temporary foreign workers in occupations appearing on a Regional Occupations under Pressure list will be considered to have conducted appropriate recruitment efforts if they:

1. Advertise on the Government of Canada's national Job Bank (or the equivalent in Saskatchewan , Quebec , or the Northwest Territories ) for a minimum of 7 calendar days;
   and*/or
2. Demonstrate that they have established, on-going recruitment mechanisms already in place (e.g., using recognized job internet sites, unions, professional associations, corporate website, professional journals, newspapers, newsletters).

* For positions classified as being skill level C or D under the National Occupational Classification 1 system, employers will be required to satisfy both conditions.

1 The listed occupations are based on the National Occupational Classification (NOC) system. The NOC is the nationally accepted taxonomy and organizational framework of occupations in the Canadian labour market. For more information on the NOC system, please visit:
http://www23.hrdc-drhc.gc.ca/

Occupations under Pressure:

Management Occupations

NOC Code	Description
0013	Senior Managers – Financial, Communications and Other Business Services
0111	Financial Managers
0113	Purchasing Managers
0122	Banking, Credit and Other Investment Managers
0311	Managers in Health Care

Business, Finance and Administration Occupations

NOC Code	Description
1112	Financial and Investment Analysts
1121	Specialists in Human Resources

Natural and Applied Sciences and Related Occupations

NOC Code	Description
2121	Biologists and Related Scientists
2131	Civil Engineers
2132	Mechanical Engineers
2151	Architects

Health Occupations

NOC Code	Description
3111	Specialist Physicians
3112	General Practitioners and Family Physicians
3131	Pharmacists
3141	Audiologists and Speech-Language Pathologists
3142	Physiotherapists
3152	Registered Nurses
3211	Medical Laboratory Technologists and Pathologists' Assistants
3215	Medical Radiation Technologists
3222	Dental Hygienists and Dental Therapists
3233	Licensed Practical Nurses
3234	Ambulance Attendants and Other Paramedical Occupations

Trades, Transport and Equipment Operators and Related Occupations

NOC Code	Description
7312	Heavy Duty Equipment Mechanics
7313	Refrigeration and Air Conditioning Mechanics
7321	Automotive Service Technicians, Truck Mechanics and Mechanical Repairers

For more information, please visit:
hrsdc.gc.ca/en/workplaceskills/foreign_workers/index.shtml

I believe you will find this information useful. I wish you all a very happy Eid-ul-Ajha, Merry Christmas and a very happy and prosperous new year.

Copyright © 2007-2008 Rezaur Rahman (Barrister & Solicitor). All Rights Reserved.

MISTAKES ARE COSTLY - By Rezaur Rahman (Barrister & Solicitor)

She walked into my office with her cousin and her six months old baby. Her face was covered with a veil. All her pain was visible in her eyes. Her cousin, a very kind and caring man translated her statement to me from Afghan to English.

Her father was brutally killed by the members of a rival tribe when she was only 12 years old. She and her mother and her six year old brother fled to Pakistan to stay with one of her maternal uncles. Her uncle was kind to them but he was extremely poor and it was difficult for him to even take care of his own family but he never hesitated to share whatever he could.

She faced another set back when she lost her mother at the age of 16. She became an orphan and had no one with whom she could share her pain and aspirations. She grew up in poverty and the chance to go to school was nonexistent. Her days were spent doing household chores when one day the opportunity to come to Canada presented itself. Her older brother had come to Canada earlier as a sponsored refugee and now he was sponsoring his sister to come to Canada.

According to Afghan customs her relatives arranged her marriage and she shortly married a Afghan refugee living in Pakistan a few days before leaving for Canada.

When she arrived in Canada the Immigration officer gave her forms to fill out and sign which she then did. After arriving in Canada she got her first good news, she was pregnant and six months later she sponsored her husband to come to Canada. She believed that her days of misery and pain were now over and she was dreaming of the day her husband would be with her in Canada and she joyfully waited for her baby’s birth.

Unfortunately her sponsorship was rejected by the Citizenship and Immigration Canada. They informed her that she would never be able to sponsor her husband because she broke the law by not declaring to the Citizenship and Immigration Canada that she had a dependant.

The law says that anyone who applies for permanent residency and has dependants (spouse, children) must mention their name in the application for Permanent Residency and they must be medically examined.

For example, if applicant X wants to come to Canada as a permanent resident and she has a husband and a child (who qualifies as a dependant) then X must include their names in the application for permanent residence. Even if X’s husband or child does not want to come to Canada with X, their names must be at least mentioned in the application and they must be medically examined. If this procedure is not followed then X will never be allowed to sponsor them.

In the present case she was not married when she filed her application for permanent residency but she got married before she had become a permanent resident. Therefore she should have informed the Canadian High Commission in Islamabad Pakistan about her marriage before she had arrived in Canada and become a permanent resident. She told me that one of her relatives did send a letter to the Canadian High Commission informing them about the marriage but she did not know what happened afterwards.

Her cousin helped her to appoint a lawyer and file an appeal at the Immigration Appeal Division. At the hearing she failed to prove that the Canadian High Commission was informed about the marriage. The government argued that when she arrived at a Canadian airport she signed a form attesting the fact that she did not have any dependant and she was not married. She said that did not know English and she did not understand the forms at all. She lost her appeal.

It was a difficult case for me. I knew very well what the law says and I also knew that the Federal Court, in a similar case, ruled that no relief can be granted. It is not the fault of the Federal Court. In actuality the law is harsh and inhumane not taking into account the complexities of life. The Federal Court had no choice but to say that the provision of the law is valid even though it is unjust.

Her eyes filled with tears as she looked at me hopefully and said, “Do something for me brother as you would have done for your sister”. I felt strong empathy for her as I thought what I would have done if my sister was in such a helpless situation. I told her about the law and informed her regretfully that there was no chance of wining the case at the Federal Court. She broke into uncontrollable sobs. Her cousin asked me “So there is nothing that can be done?”

I told them that there is a special section in the Immigration and Refugee Protection Act that allows the Citizenship and Immigration Canada to grant a remedy under humanitarian and compassionate ground. However I noted that the Immigration Officer had already declared that there was no humanitarian and compassionate ground that would have allowed him to approve the sponsorship.

I told them that I would take up the case and fight for her rights. I told her that if she wanted she could go to Pakistan to stay a few months with her husband to relieve her mental agony. I then started to prepare my legal strategy in trying to win her case.

Six months later she came to my office with her cousin, who was interpreting for her, and informed me that she was better but still very worried about the future. She then said she was expecting her second child and I understood how difficult it would be for her to take care of two children in Canada without her husband.

I sent the proper application to the Case Processing Centre with a submission to consider humanitarian and compassionate grounds the Case Processing Center then sent the application to the Canadian High Commission in Islamabad.

A few weeks ago the Canadian High Commission had sent a letter asking for a few more documents; this is a good sign. It seems that the submission that we made is working and we are all hoping for the best. I believe that her application will be granted this time on the basis of the new arguments and documents that we filed.

Therefore readers, when trying to become a permanent resident of Canada be well informed of what is required since the law does not look kindly upon a mistake, no matter how innocent that is. The price of any mistake is very high and can be unbearable.

Copyright © 2007 Rezaur Rahman (Barrister & Solicitor). All Rights Reserved.

A DAY IN MR. X’S LIFE - Part II - By Rezaur Rahman (Barrister & Solicitor)

“Well, I have a big business in Dhaka. I cannot stay in Canada for long time. However my wife and children would be here and I will be visiting them once or twice a year to spend a month or so with them….so what do you think Mr. Rahman ?” asked Mr. X with a glare of confidence in his eyes.

Mr. X a new immigrant to Canada thinks he has made the choice to become an immigrant not for himself but for his two kids who would be having “good life” and “good education” in this wonderful country.

The more I was trying to explain to him the mandatory requirement of the Immigration and Refugee Protection Act (IRPA) for an immigrant to stay in Canada for a minimum of 730 days out of every five years , the more he was trying to avoid that issue.

He had his own plan. Some of those are absolutely illegal and unethical. At one point I simply asked him “If you go to a physician and tell your problem to him, who decides what medication is appropriate for you ?” He smiled and said “Of course the physician , but what relevant does it have to my situation ? I asked him “But if he prescribes you a medicine that tastes absolutely bitter, would you ask the physician to give you the one that tastes good ?” He became impatient and said “Of course not ….but why are you asking me this …”

I told him “Mr. X , when you go to a lawyer , he will give you the appropriate advice that he is authorized to provide you on the basis of your circumstances…..if you try to get your illegal plan approved by a lawyer because it suits you, he will not do that”. Now he understands the situation and became very humble. I asked him if he had the mind to listen to me carefully so that he knows what legal options were open for him to follow. Mr. X took a deep breath and said "Yes, please"

I told Mr. X that the word “’permanent resident’ signifies the responsibility of the holder of this status. It means you are required to live in Canada permanently . Living permanently means taking up a place of residence, working or doing business or going to school or carrying out other works that a person who lives in a country normally does. You are not a visitor who would go back to his country of citizenship or residency once the visa expires.

The IRPA says that you need to stay in Canada physically 730 days in every five years. The five year period is counted from the day you become the permanent resident of Canada. If you become a permanent resident in September 2007, you must stay 730 days in Canada till August 2012.

Your Permanent Resident Card will be renewed in every five years . So, a new five-year period will start from 2012 and that will last till 2017.

You can become a Canadian Citizen after you have lived 3 years in Canada since you have become a permanent resident . So if you become a permanent resident in September 2007 and continue to live in Canada till August 2012 you will be able to apply for the Canadian citizenship at that time.

Once you become a Canadian citizen you will become free from the requirement of living in Canada for a certain amount of time. If you chose to live in another country for the rest of your life, you will not lose your Canadian citizenship for doing so.

If any of the permanent residents of Canada like Mr. X who wants to go back to Bangladesh and live there can still retain his Permanent resident status of Canada if he is employed by a Canadian business organization and work for that Canadian company in Bangladesh.

The Canadian company that employs a permanent resident can be a federal or provincial corporation or other form of company. It must have an ongoing operation in Canada. The business organization must be run with an anticipation of making profit and must be capable of generating revenue.

However the law excludes a business organization form this category which is created and run mainly to allow a permanent resident to comply with his residency obligation while living in abroad.

As an example, Mr. X is employed by a Canadian Business Corporation “Last Chance Inc.” to look after its business interests in Bangladesh and he returns to Canada after 4 years. His absence from Canada will be treated as if he lived in Canada in all those years.

If he were not employed by a Canadian business but came back to Canada after 3 years from Bangladesh, the Immigration Officer will allow him to enter Canada provided the officer is satisfied that Mr. X would be living in Canada for the next two years to fulfill his residency obligation.

A permanent resident is considered to be in compliance of fulfilling the residency obligation even though he is not physically present in Canada for the required period of time , if one of the following happens:


1. He is employed full-time basis by a Canadian business or in the public service of Canada or of a province and is living in another country as a requirement of his job.

2. He is accompanying his spouse of common-law partner who is a Canadian citizen.

3. He is a child and accompanying his parents one of whom is a Canadian citizen.

4. He is accompanying his spouse or common-law partner who is a permanent resident and who is employed full time basis by a Canadian business or in the public service of Canada or of a province and is living in another country as a requirement of his job.

5. He is child who is accompanying his parents to another country and one of those parents is employed full time basis by a Canadian business or in the public service of Canada or of a province.

Even if someone fails to meet the residency obligation the Immigration Officer may allow him to retain his permanent resident status after making the humanitarian and compassionate considerations and taking into account the best interest of a child directly affected by this determination.

As an example let us think about someone who came to Canada with his wife , stayed for a year and went back to his country of birth to visit his ailing mother. He left his wife behind who was pregnant. His wife expected that he would come back at the time of the birth of their child . Unfortunately he could not come back because the condition of his mother deteriorated.

His wife gave birth to a child . He continued to support his family by sending money from abroad. His mother became terminally ill. He was the only child of his parents and his father had died long time ago. He could not leave his mother and return to Canada because there was none to take care of her. His mother passed away recently. He returned to Canada permanently after four years.

If it is proven on the basis of medical evidence and other relevant evidence that it was absolutely necessary for him to stay with his mother and he tried to return to Canada at his earliest opportunity the immigration officer would definitely consider the humanitarian and compassionate grounds in determining his residency obligation.

The Immigration Officer would also have to examine the impact on the child if his father loses the permanent resident status.

However if the Immigration Officer declares that there was no humanitarian and compassionate ground that would support the retention of permanent resident status , the permanent resident does not lose his status immediately. He can file an appeal at the Immigration Appeal Division of the Immigration and Refugee Board against that decision.

Some people still talk about the Returning Resident Permit. That was a requirement under the old Act. Prior to IRPA , a permanent resident could not have lived in a foreign land more than 180 days in a year. In order to stay longer than that period one had to obtain permission or a permit from the Immigration authority. That permit is no longer issued because the limitation of 180 days is no longer in effect.