Federal Court gives Minister the Green Light to abolish current Investor Applications

On December 18th, Justices Roger Hughes and Elizabeth Heneghan jointly denied four investor
(IIP) applicants’ motions for an injunction to bar Jason Kenney from introducing legislation to
abolish their investor applications so long as their court cases existed. In so doing, both justices distorted
the applicants’ arguments in order to find case law on which to rely to justify giving the Minister
the green light to abolish current IIP files and, in so doing, to encourage the Minister to deprive
the Federal Court of its jurisdiction to dispose of litigation which comes before it.

Justice Hughes held: “… Applicant's Counsel has conceded that the Court does not have jurisdiction to
order that Parliament should not pass legislation, particularly legislation that has not been drafted
or is in bill form only. Counsel said that what was being sought is an Order that the Minister negotiate
with the Applicant or exempt the Applicant from any unfavourable effects of new legislation. The
Applicant has not requested such an exemption from the Minister. There has not been shown before
me any basis upon which the Court could order such negotiation or an exemption.”

This “finding” was entirely contrary to the evidence before Justice Hughes. The motion sought to bar
the Minister from introducing legislation, not to force him to negotiate. Applicants’ counsel had stated
that, if the Minister was intent on issuing such legislation, he had four ways to comply with such
an injunction and to legislate the abolition of the investor files. One means was to settle with the
applicants. However, Justice Hughes, in pursuit of his personal agenda, chose to pervert the actual
argument in order to give the chimera of legitimacy to his ruling.

Justice Hughes, likewise, held: “the Applicant has failed to provide in the record, any substantial
evidence as to delay or procrastination by the Minister or Minister's officials”. However, the
applicant had provided the relevant dates, including the date of Justice Hughes’ own order, issued in
July 2011, ordering CIC to finalize the case at its own somnolent pace; and the Minister’s lawyers did
not dispute those facts. Thus, the undisputed relevant facts were before Justice Hughes, but he preferred
to ignore the truth in order not to impede the Minister from abolishing over 20,000 investor files.

Justice Heneghan joined Justice Hughes in distorting what the applicants were seeking in order to
justify abdicating the Court’s duty to protect its own jurisdiction. Justice Heneghan held: “The
Applicant's arguments are premised upon the theory that the [Minister] may introduce legislation that
will ‘abolish’ his outstanding IIP application before the Court can deal with the application for an
Order of mandamus. I accept [the Minister’s] submissions … that there is no evidence that legislation
is proposed that will affect the outstanding IIP applications. The Court cannot enjoin proposed or
potential legislation” and proceeded to rely on case-law saying that the Court may not interfere
with legislation before Parliament. There is, however, no case law which holds that the Court may
not restrain a minister from stripping the court of its jurisdiction by legislating away the underlying
court cases. Therefore, Justice Heneghan distorted the actual motion in order to deny it. In so doing,
she distinguished herself from Justice Hughes who claimed, contrary to fact, that the case law before
him contained such decisions when it does not.

Before both of the judges was CIC’s official acknowledgement that it is considering abolishing the
investors’ files just has it had the skilled worker files. The Minister’s lawyers did not deny that the
Minister was planning to legislate the investor applications into oblivion.
The IIP applicants will continue their cases, asking the Federal Court to order CIC to finalize their
cases in 2013, hoping that they will find a judge who cares more about the duty to the Law and to
Canada than to being in Jason Kenney’s good graces. The race is now on to see who will act faster:
The Federal Court or Jason Kenney’s allies in Parliament. The fate of 20,000 investor applicants
and their families – as well as their billions of dollars of investments in Canada – hang in the balance.
 Source: unfairCIC.com

An Immigration System that Works for Canada: New Federal Skilled Worker Program to Accept Applications Beginning May 4, 2013

OTTAWA, ONTARIO--(Marketwire - Dec. 19, 2012) - The new selection system for the Federal Skilled Worker Program (FSWP) will take effect on May 4, 2013 at which time the program will re-open for applications, Citizenship, Immigration, and Multiculturalism Minister Jason Kenney announced today.

"The government's number one priority remains jobs, economic growth, and long-term prosperity," said Minister Kenney. "The new Federal Skilled Worker Program criteria will ensure Canada is selecting the skilled immigrants our economy needs, who are the most likely to succeed and fully realize their potential in Canada."

The improvements to the FSWP points grid are based on a large body of research which has consistently shown that language proficiency and youth are two of the most important factors in the economic success of immigrants.

The final changes to the FSWP selection criteria include:

• Minimum official language thresholds and increased points for official language proficiency, making language the most important factor in the selection process;
  
• Increased emphasis on younger immigrants, who are more likely to acquire valuable Canadian experience, are better positioned to adapt to changing labour market conditions, and who will spend a greater number of years contributing to Canada's economy;
  
• Introduction of the Educational Credential Assessment (ECA), so that education points awarded reflect the foreign credential's true value in Canada;
  
• Changes to the arranged employment process, allowing employers to hire applicants quickly, if there is a demonstrated need in the Canadian labour market; and
  
• Additional adaptability points for spousal language ability and Canadian work experience.
  

"For too long, too many immigrants to Canada have experienced underemployement and unemployment, and this has been detrimental to these newcomers and to the Canadian economy," said Minister Kenney. "Our transformational changes to the FSWP will help ensure that skilled newcomers are able to contribute their skills fully to the economy as soon as possible. This is good for newcomers, good for the economy, and good for all Canadians."

There are two new steps to the new selection system. First, applicants will have to demonstrate that they meet the minimum language threshold, which is level 7 of the Canadian Language Benchmark assessment system. Applicants will be able to get a language assessment from existing agencies designated by the Minister and listed on the CIC website.

Second, applicants will have their education credentials assessed prior to arriving in Canada. A list of assessment organizations designated by the Minister will be made available early in the New Year. The assessment of foreign educational credentials will provide prospective newcomers with a more realistic understanding of how their credentials compare to education standards in Canada. It will also give them the opportunity to upgrade their education prior to coming to Canada if they choose.

It is important to note that these changes will not apply to people who have applied to the FSWP prior to May 4, 2013 with a qualifying arranged job offer or under the Ph.D. stream.

As recently announced, due to the actions taken over the past months, new applications under the FSWP will be processed in a few months, rather than a few years. In order to ensure fast processing times and to avoid backlogs, the new FSWP will accept a fixed number of applications each year.

In the medium term, the Government is also moving forward to develop and implement an Expression of Interest (EOI) model, which will provide employers with access to a pool of skilled workers.

Related articles

• Canada To Speed Up Entry Of Skilled Immigrants Into Country
• New Federal Skilled Trades Stream to Begin Accepting Applications on January 2, 2013
• Skilled trades stream targets 3,000 foreign workers in 2013
• Immigration Changing: Provinces Need More Skilled Workers

US and Canada sign information sharing agreement

Photo of a sign in the Canada-United States border. (Photo credit: Wikipedia)

Under a new treaty Canada will start sharing information that relates to visa applications with the US in order to further North American security.  The data sharing deal is an attempt to make certain that the two nations are both secure while also streamlining the passage of both people and goods, with the deal also allowing either country to be able to share information with a third nation so long as the providing country gives consent, according to the website Biometric Update.

When someone puts in an application for US citizenship, Washington government officials will contact officials in Canada in order to identify both former failed refugee claimants, deportees and people who are attempting to enter under a false name.

The information trade means that both nations will be able to trade information in exactly the same way, although both countries are also making an effort to make sure that this information is not given to a nation from which an applicant has fled, or a country where members of the individual’s family live and could be endangered if this information were to be shared.

“If there is a positive hit, we will be notified of that,” notes Immigration Minister Jeremy Kenner.  “If the hit indicates something problematic – that perhaps that person has previously been deported by the United States or that in fact the person has an alias – then we’ll be able to more closely explore their real identity and whether they are admissible to Canada or would constitute a security risk.”

Related articles

• Canada, U.S. sign visa info sharing agreement, part of perimeter security deal
• Biometrics data collection: Canadian visa applicants from 29 countries will be fingerprinted
• U.S.-Canada inked visa and immigration information-sharing agreement
• Canada, U.S. sign visa info sharing agreement
• Facilitating Travel to Canada - Canada to Begin Collecting Biometrics from Certain Foreign Nationals
• Biometrics: Canadian visa applicants from 29 countries will be fingerprinted
• New treaty strengthens border security
• Exclusive: Canada should boost immigration levels starting 2014, says internal report

CBC skilled worker quiz surprising readers

Many CBC readers are discovering that it wouldn't be so easy to come to Canada as a skilled worker, especially if one  imagines forfeiting some home court advantages.  

Expected changes to Canada's Federal Skilled Worker Program inspired us to create a quiz based on the proposed points grid. New weightings under the six selection factors - education, official languages, work experience, age, arranged employment, and adaptability - will give some applicants a boost while making it tougher for others to have their applications considered. 

For instance, the government plans to increase the number of points one can score for being young, as well as the number of points one can get for proficiency in Canada's official languages. 

For the sake of simplicity, the CBC test assumed that all quiz-takers met the minimum requirements for eligibility and work experience, and had a relevant occupation -- all deal breakers for real applicants who can't say the same. 

Still, despite that short cut, many readers were shocked to discover that Canada might not look at their application if they were on the outside looking in.

• "Wow - three degrees, work experience and the highest level of English proficiency and I got barely enough points to apply. So now I really am mystified regarding how many people get here with those things. There are an awful lot without language skills and education." - Kathena
  
• "73 and born/raised/educated in Canada. I failed." - ROZENCRANTZ_7
  
• "Yikes, just in under the wire. 67 it is. And it was only my Canadian spouse that got me in. Hmmmm." - JohnMichaelKane 
  
• "378 years our family has been in Canada, I failed too. Bring in my replacement! I guess my last employment task will be to train them. Where's the soup kitchen?" - dogleg
  
• Does this mean I have to leave?" - HammerheadHirum

Others fared better, and their reactions ranged from delight and pride to bemusement.

• "Why should bilingual people get priority? I'm an old fart and I would be welcome. 87 points." - NQuick
  
• "We moved to Canada back in 1975 with my wife and 6 month old son, the requirements are the same as back then, my score now if I applied today: 97. I still needed a job that my employer could not fill with a Canadian, so what has changed since then: nothing. I've never been unemployed and have worked all my 64 years, retired for 4." - Kingstonrocks
  
• "I Took the test twice, First time thinking as a Canadian, second time thinking like an immigrant, I got 78 both times, seems that the most important thing is having at least one year of University education under your belt." - JohnnyTempest

One user in particular stood out by posting two comments reflecting on the bigger picture and proposing a series of questions.

"Canadians generally do not realize how difficult it is to immigrate. We are not doing anyone any favours if we set the bar too low and cause people to waste huge amounts of time and money becoming failures in a foreign land ... It is emotionally and intellectually more difficult to be a foreigner working in Canada than to be a native born Canadian working in Canada. Immigration is also more expensive financially and emotionally than immigrants think it will be." - GoodN1GHT

"We need to examine why Canada is unable to produce enough of its own skilled trades people when other countries with fewer resources successfully do. Are employers failing to provide apprenticeships or on-the-job training? Do foreign governments fund training in more effective ways? Are we paying people in these trades and professions too little? Is there a social stigma with these jobs? Are these dead-end jobs in Canada where in other countries they are career paths?" - GoodN1GHT


TAKE THE QUIZ HERE

Did you take the quiz and reach at least 67 points?

Yes.No.

VoteView Results

How did you do on the quiz? Do you think the grid seems fair?

Related articles

• QUIZ | Would you qualify to come to Canada as a skilled worker?
• Skilled trades stream targets 3,000 foreign workers in 2013
• CBC skilled worker quiz surprising readers

New immigration points system will favour younger workers, language skills

Stephanie Levitz, Canadian Press | Dec 19, 2012 10:49 AM ET | Last Updated:

The federal government will relaunch its largest immigration program in May with a new focus on making sure foreign engineers and doctors aren’t stuck driving taxis for a living when they come to Canada, Immigration Minister Jason Kenney announced Wednesday.

The Federal Skilled Worker Program was frozen in June pending changes to the points grid used to select newcomers.

The government is seeking to make youth and language proficiency a bigger priority for both principal applicants and their spouses. Under the new system, the government will also award more points for Canadian work experience and would-be newcomers will have to have their education credentials assessed before arriving in Canada.

“The reforms we’re making are designed to dramatically improve the economic outcome of newcomers and to help Canada’s productivity as our workforce shrinks and our population ages,” Kenney said.

We want the engineers who we select to actually be able to work as engineers

“Rather than bringing engineers to Canada to drive cabs or doctors to be corner store clerks, we want the engineers who we select to actually be able to work as engineers and the doctors to be able to work as doctors.”

Citing studies that show newcomers tend to have higher unemployment and underemployment rates than the Canadian born population as well as lower average incomes, Kenney said the goal is to reverse the trend to the point that they are close if not in line with national figures.

Kenney said the credential assessment won’t guarantee foreign trained professionals a job in their field since “rigid” and “byzantine” regulatory agencies ultimately have the final say on licensing, but noted efforts are also underway to work with professional bodies to ensure foreigners can find out within a year whether they’ll be granted a license to practice. With respect to foreign doctors, he suggested the points grid will also factor in the availability of residency positions before granting permanent residency.

“This is about truth in advertising. This is what people have been asking us to do for a long time which is to be up front with folks,” he said. “If your level of education is not at or close to the Canadian standard, why would we invite you to come to Canada only to face unemployment or underemployment.”

Freezing the skilled worker program has also allowed the government to get a grip on about 100,000 remaining backlogged applications. It’s what was left after the government eliminated about 280,000 pre-2008 applications from skilled workers and their dependents in the last budget. The government is doing this by refunding $130 million in application fees, though the plan is being challenged in court.

That said, between the moratorium on new federal skilled worker applications and the budget decision to toss old applications, the government indicated last month that the remaining backlog would be eliminated by 2014, about three years ahead of schedule.

When the program relaunches May 4, 2013, it’s expected that new applications will be processed within months rather than years, Kenney said, adding he will also cap the number of applications the government will accept annually to avoid more backlogs in the future.

Frozen at the same time as the skilled worker program, the immigrant investor stream is also poised to relaunch in the first half of next year, Kenney told Postmedia News.

The cash-for-visa scheme which grants permanent residency to wealthy foreigners prepared to invest at least $800,000 into the Canadian economy is also being revamped. The stream is considered too attractive as comparable programs require a much larger investment and one that is permanent. Under the current rules, the $800,000 investment is more like a loan that must be repaid in five years.

The program, however, is also facing a massive backlog of about 25,000 applications — 86,000 if you include dependents — that could take 10 years to get through. Six Chinese investors who applied when the scheme required a mere $400,000 investment are now suing the government over lengthy processing delays.

They fear the government will eliminate the investor backlog in much the same way it did the skilled worker backlog and this week asked the Federal Court to pre-emptively bar the government from doing so pending the outcome of their court case.

Their lawyer Tim Leahy ultimately lost his bid for an injunction, but in an email noted he’s still not convinced the government won’t “abolish” the investor files.

Asked about his plans for the immigrant investor backlog Wednesday, Kenney didn’t rule out the notion entirely but suggested it’s not in the immediate cards.

“At this point, we’re not contemplating legislative measures to reduce the backlog in that stream,” he said, adding the changes will include raising the “price point,” making it a more “active” investment and requiring investors to assume some risk.

The government is also looking into the merits of asking would-be investors caught in the backlog if they would submit to the new rules and investment thresholds in exchange for having their applications fast-tracked. Kenney said that’s one way the government could reduce the backlog.

NDP immigration critic Jinny Sims said Kenney often makes “erratic” and “surprise” decisions and doesn’t believe anything, including doing away with investor backlog, is really “off the table.” She also slammed Kenney’s skilled worker announcement Wednesday, noting the new points grid was already unveiled in August. The only new thing, she argued, is the implementation date.