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Law Notes Immigration and Refugee Law Notes

Economic Class Notes

Updated Economic Class Notes

Immigration and Refugee Law Notes

Immigration and Refugee Law

Approximately 76 pages

This course was taken with Professors Lorne Waldman and Jacqueline Swaisland. Both practice exclusively in the area of immigration and refugee law and are known for high-level litigation at the Supreme Court of Canada. Given extensive changes in the Immigration and Refugee Protection Act in Canada, please note that some legislative provisions and regulations may have changed. It is advised that you cross-reference provision and regulation numbers for accuracy....

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The following is a more accessible plain text extract of the PDF sample above, taken from our Immigration and Refugee Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

PART IV: ECONOMIC CLASS (PRs)

Three types: skilled worker, business immigrant and live in caregiver

  • economic immigrants have the opportunity to be family members (cannot obtain PR if not disclosed in application. If a dependent is inadmissible, that may affect the principal applicant. Must disclose all dependents and update if you have a child in a reasonable time period otherwise you could be deemed to have misrepresented and become inadmissible for 5 years.

  • skilled worker program has the highest contingency

IRPA Provisions Relevance
s. 12(2) (ECONOMIC IMMIGRATION) Foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada
s. 75(1) REGS (FEDERAL SKILLED WORKER) Class of persons who are skilled workers and may become PR on basis of their ability to become economically established in CDA and who intend to reside in province other than QC. Technically able to work in other provinces, but there may be restrictions.

TYPE 1a: Federal Skilled Worker (*Onus on applicant to satisfy requirements)

WHAT IS THE NOC?
Organizes over 30 000 job titles into 520 occupational group descriptions. In order to qualify, individual must have performed “all actions” described in lead statements, substantial number of main duties of occupation, and all essential duties of occupation. Not necessary they meet employment requirements. Should always indicate NOC requirements as close as you can (CIC is stringent about this).

No right of appeal to IAD for skilled workers, but can seek review at FC (60 days to file for leave (Gulati v Canada 2010 FC). Can be reviewed on standard of correctness (procedural fairness) or mixed fact/discretion.

STEP 1: Initial Threshold Required (main criteria)

  1. Requires at least 1 yr of continuous, and paid work experience (full time or equal amount in part time)

    1. in single occupation

    2. within last ten years

  2. Must be at Skill Type 0 (management occupations) or Skills A (professional occupations) or B (technical and trade occupations) of Canadian National Occupation Classification (NOC)

  3. Performed substantial # of main duties of occupation as set out in NOC description

  4. Scored 7 on each of 4 areas of reading, writing speaking and listening

  5. Must have CDN diploma, certificate or credential or a foreign equivalent (if credentials from abroad, must have assessed by agency approved by CIC – assessment must be less than 5 yrs old)

STEP 2:

  1. Valid offer of employment OR

    1. permanent, full time and not seasonal work in NOC 0, A or B and working in CDA on WP that was granted through LMO or in job exempt from LMO OR employer has positive LMO from HRSDC

  2. Have work experience in one of eligible occupations OR

    1. listed on CIC website (cap for total per category is 300)

  3. Meet requirements of PhD stream (Cap 1000/yr)

    1. enrolled in CDN PhD program for at least 2 years, be in good academic standing, no award requiring return to home country OR graduated in past 12 months from PhD program w/no requirement to return to home country

STEP 3: Point system

  • 67 required (s. 76(2) REGS); must be met at time of application and when visa issued (s.77); MCI can change at any time based on economy, projected number of PRs and outstanding applications

  • if multiple applications, onus on applicant to show which ones he wants to be considered under NOC; officer under duty to assess under each (Li v Canada 1990 FC)

CATEGORY ASSESSMENT MAX # POINTS
Education (Reg 78)

- Cdn or equivalent assessed

- Range from 5 pts for secondary to 25 for PhD

- Upgrades before assessment considered

 25
Official Language (Reg 79)

- 24 max for first language and 4 for raised

- proficiency in EN or FR (16 pts for benchmark)

- plus 1 pt per area per benchmark

- must have language assessed by designated institution or provide evidence in writing

- most current must be used (less than 2 yrs old)

 28
Employment Experience (Reg 80)

- can be given for full time work experience (30 hrs paid work) or part time

- must have been within previous 10 yrs

- must be within NOC under 0, A or B

 15
Age (Reg 81)

- 18-36 = 12 pts

- to 1 point for age 46 (46 = 1 pt)

- no points under 18

- subtract 1 from12 for all past 36

- age locked in at time of app but if dependent at time submitted but not after lose status at decision (Hamid v CDA 2006 FCA); current dependent age is 22

 12
Arranged Employment (Reg 82)

- offer of indeterminate employment

- must already hold WP or have been offered job approved by officer based on HRSD opinion (offer must be genuine, FT, wages on par w/standards)

- concerns with application require communication and opportunity o respond

 10
Adaptability (Reg 83) - language proficiency of spouse (5), study in CDA by applicant or spouse 2 yrs + (5), full time work in CDA in skilled occupation (10), full time work in CDA by spouse (5), relative in CDA pursuant to 83(5) (5), arranged employment (5) 10

STEP 4: Financial Requirements (unless an offer of arranged employment)

  • Reg 76(b) requires settlement funds: sufficient and available funds to meet requirements or that they have arranged employment as defined in Reg 82

  • Funds must be 1) available 2) transferrable and 3) unencumbered by debts (liquid)

  • Amount based on family size

Substitute Evaluation (Reg 76(3))

  • Officer holds discretion to issue visa to skilled worker that doesn’t reach 67 pt threshold (may refuse) (Reg 76(3))

  • Substituted evaluation must receive concurrence from senior officer (Reg 76(4))

  • Applicant must request that officer exercise his or her discretion (Yan v Canada MCI)

  • Officer does not have to look for exceptional circumstances unless asked to

  • Feds can make changes to point system and apply retroactively if applied fairly (Kazi v Canada 2003 FC)

  • Officer must identify and document facts demonstrating pts awarded not sufficient indicator for becoming economically est. in CDA; if negative for applicant, must provide...

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