The following article appears in the January edition of Canadian Immigrant Magazine.

Hed: Do I Need a Work Permit?
Dek: Explaining When Work Requires a Work Permit, and When it Does Not    

In October, theVancouverSun ran a story about an employer who was convicted of misrepresentation.  The individual had told his employees to falsely tell border officials that the employees were enteringCanadafor pleasure, as opposed to working briefly at a festival in Whistler. Presumably the employer’s objective in having his employees say this was to avoid having to apply for work permits.

There is no question that lying to border officials constitutes misrepresentation.  What is ironic about the employer’s situation is that from what I could tell (based on theVancouverSun article) his employees could have been honest about their intentions to work at the festival and still not required work permits.

The reason is simple:Canada’s immigration laws are clear that not all work requires a work permit.

What is Work?

Before getting into examples of work that do not require a work permit, it is necessary to review what work does.

The concept of work for immigration purposes is broader than many people realize.  “Work” is an activity for which wages are paid or commission is earned, or that competes directly with activities of Canadian citizens or permanent residents in the Canadian labour market.

The second part of the definition is extremely important, because it implies that unpaid work can still count as work requiring a work permit.

Examples of work requiring a work permit thus include foreign technicians enteringCanadato repair equipment, self-employment, or volunteer employment undertaken for the purpose of obtaining work experience.
What Work Doesn’t Require a Work Permit

The general rule is that individuals enteringCanadato work require a work permit.  There are, however, important exceptions to this.

The first, and most common exception, is people who enterCanadaas business visitors.  The criteria to be a business visitor is that 1) there must be no intent to enter the Canadian labour market, 2) the activity of the foreign worker must be international in scope, and 3) the primary source of the worker’s remuneration, place of employment, and accrual of profits must be located outside of Canada.

The business visitor exception would likely have applied to the employer who told his employees to lie about their participation in the festival at Whistler.  I believe this in part because we had clients who attended the same festival and who told the Canada Border Services Agency that they intended to attend the conference as business visitors.  They were admitted toCanadawithout having to apply for work permits.

Citizenship and Immigration Canada’s Temporary Foreign Worker Manual also states other types of work that specifically do not require a work permit.  These include military personnel, guest artists, persons performing at private events, artists working on a show piece, film producers, guest speakers, media crews, convention organizers, and many other specific occupations.

Determining whether or not an individual requires a work permit is very important for employers that will be sending employees to work temporarily inCanada.  If a work permit is required, then the employer will of course have to ensure that his/her employees apply for work permits.  If a work permit is not required, then there is no need to do so.  And, in either case, there is especially no need to tell employees to lie about why they are enteringCanada.

The following article appeared in the November issue of Canadian immigrant magazine:

Who Can Help You with Immigration Matters
Understanding the New Regulations   

I frequently receive e-mails from individuals asking if it is true that it is either illegal or impossible to immigrate toCanadawithout hiring a lawyer or a paid consultant.  Some people appear to be under the mistaken impression that the Government of Canada recently enacted regulations to this affect.  I am not sure what the source of this misinformation is, but hopefully by the end of this article I will have dispelled these myths.

Bill C-35

The first misconception that needs to be clarified is the substance of Bill C-35, which came into force on June 31, 2011.  Bill C-35 changed many rules pertaining to immigration representatives, however, not one of them made it mandatory to hire a paid representative.

Amongst other things, Bill C-35 makes it an offence for anyone other an authorized representative to conduct business, for a fee or other benefit, at any stage of an immigration application or proceeding.  Authorized representatives include lawyers, paralegals in certain provinces, and members of the Immigration Consultants of Canada Regulatory Council (“ICCRC”).  The penalty for providing paid advice despite being unauthorized to do so is up to a $100,000 fine and/or two years imprisonment for up to two years.

Importantly, unpaid third parties, such as friends and family, do not have to be authorized representatives to act on behalf of potential immigrants.

Even more importantly, most of Bill C-35’s provisions pertain to the regulation of who can and cannot provide paid advice to potential immigrants.  It does not require individuals to hire a paid representative.

The Risks of Hiring an Unauthorized Representative

If you have an immigration issue and are considering hiring someone to assist you on a paid basis, then it is important to note that the onus is on you to determine whether the individual is authorized to do so.  You can determine this by consulting either your respective province’s Law Society website, or the ICCRC website, to determine whether the person you are considering to represent you is a member in good standing.

If you are considering hiring someone that is not authorized, it is important to understand some of the consequences of doing so.

If you submit an application and disclose that you have retained an individual who is not an authorized representative to help you then your application is likely to be returned to you.  The result of this is simply wasted time.

If you try to hide the fact that you have hired a paid representative, and Citizenship and Immigration Canada discovers this, then you may be accused of misrepresentation.  Bill C-35 requires that applicants be honest in disclosing who assisted them with their applications.  The consequence of being determined to have committed misrepresentation is a two year ban on enteringCanada.

(As an aside, our office routinely represents people in court, or before the Immigration and Refugee Board, who have been banned from Canada for two years because they listened to someone whispering sweet nothings about how they had “secret connections in the government” or how “CIC is scared of how good I am so don’t disclose that I am on the file.”  Please don’t believe this stuff.)

Is it Impossible?

Hopefully I have dispelled the myth that you have to hire a paid representative in order to immigrate toCanada.  However, even if it is not illegal to apply without paid representation, is it impossible to succeed without it?  Once again, the answer is of course not.

Whether or not you choose to hire a paid representative to help you with your immigration matter will depend on numerous factors, including your individual circumstances, whether there are complex issues with your application, your comfort level, and the opportunity cost of you spending numerous hours preparing paperwork.

You should consider the above factors before making a decision on whether to hire a paid representative.  However, you should not base your decision on the misconception that it is either illegal or impossible to immigrate without a paid representative.

Every once in a while the Federal Court releases a decision which provides an extremely in depth review of the facts.  He v. Canada (Citizenship and Immigration), 2012 FC 33, is an example of such a case.  It provides a good example of how a finding of misrepresentation can occur, as well as how the Anti-Fraud Unit works to verify employment.

The facts of the case are:

• H was a citizen of China who had been nominated by the province of New Brunswick to immigrate to Canada.

• On March 8, 2010, H submitted an application to immigrate to Canada as a member of the Provincial Nominee Class.
• In the application, H stated that she had worked as a sale manager at Building Company.  The immigration officer assessing her application asked the Anti-Fraud Unit to verify her employment.

• Officer R of the Anti-Fraud Unit called the Building Company.  He spoke to Huang, an individual at the Building Company responsible for maintaining the company’s list of employees.  Huang stated that he had never heard of H.

• Officer R then spoke to the president of Building Company, Boss Deng.  Boss Deng stated that he had worked at the company for over 10 years, and had never heard of H.  Officer R thanked Boss Deng.  He then called back two hours later to confirm that Boss Deng had never heard of H.  This time, Boss Deng stated that he had in fact heard of H, and could verify his employment with Building Company.

• Officer R was suspicious, and reported his concerns to the immigration officer.

• The immigration officer then sent H a letter stating that he was concerned about the authenticity of his employment, and asking H to address these concerns.

• In response to the immigration officer’s letter, H sent the officer two faxes.  One as from Huang, who stated that he had made a mistake when he said that he had never heard of H.  The other was from Boss Deng, who stated that his first answer to Officer R was wrong, and that the second answer was right.  Both suggested that they answered the way that they did because they did not remember H, and that they did not believe that Officer R was really an officer with the Canadian embassy.

• The immigration officer found that H had committed misrepresentation, and denied the application.  In the officer’s reasons, the officer stated that he found the original answers to Officer R’s questions to be more credible than the later answers.  He also wrote that Huang and Boss Deng may have been co-opted into changing their answers.

Canadian citizens and permanent residents who currently have applications to sponsor their parents and grandparents to immigrate to Canada in processing used to face uncertainty if the parent who was the principal applicant on the immigration application passed away.  Would Citizenship and Immigration Canada continue to process the application for the principal applicant’s spouse?  Or would CIC make the spouse re-apply and start over?

Previously, the answer was the latter.  The Citizenship and Immigration Canada manual provided that principal applicants could not be alternated after the processing of an application began.  If applicants wished to have their spouse or common-law partners considered as the principal applicants, then the original application had to be closed, and a new application, with all assorted wait times and fees, was required.

Effective immediately, however, visa officers may replace the principal applicant with the individual’s spouse or common-law partner if they were included in the original application.  While some new forms are required, no additional fees are necessary.  As well, the lock-in date for the age of dependent children will not change.

A very sensible change, and one that should be reassuring to people with sponsorship applications currently processing.  Of course, it is of little relevance to people who want to sponsor their parents / grandparents but have not yet applied.  The program remains closed to new applications.

As previously discussed in this blog, Article 1Fb of the 1951 Refugee Convention provides that an individual may be excluded from refugee protection in Canada if he has committed a serious non political crime outside the country that he is seeking refugee status in.

A recent line of Federal Court decisions confirms that Article 1Fb may be applied even if a criminal charge against an individual is dismissed.

In Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404, the Federal Court of Appeal held that Article 1Fb analysis requires an evaluation of the elements of the crime, the mode of persecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction.

The Court has also held that where there is no conviction an Article 1F(b) finding is still possible.  In Zrig v Canada (Minister of Citizenship and Immigration), 2003 FCA 178, the Court stated that:

[129]   [...] it is possible to exclude both the perpetrators of serious non-political crimes seeking to use the Convention to elude local justice and the perpetrators of serious non-political crimes that a States feels should not be allowed to enter its territory, whether or not they are fleeing local justice, whether or not they have been prosecuted for their crimes, whether or not they have been convicted of those crimes and whether or not they have served the sentences imposed on them in respect of those crimes.

In Pineda v Canada (Minister of Citizenship and Immigration), 2010 FC 454, the Court explained why it makes sense that a dismissal can lead to exclusion:

This makes good sense given that charges can be dismissed for a variety of reasons including procedural issues, rejection of crucial evidence for technical reasons, or simply because the accused raised a reasonable doubt. The Convention does not adopt the stringent standard applicable in criminal proceedings and the RPD may indeed be satisfied that evidence produced by the Minister, which may not be admissible in a court of law, is sufficient to raise a serious possibility that the applicant has indeed committed a serious crime.

While the notion that the Immigration and Refugee Board can still exclude someone for criminality even if the charges against the person was dismissed might seem troubling, it is important to consider the different standards of proof.  Much like OJ Simpson could be sued for the murder of Nicole Simpson even though the criminal charges against him were dismissed, the standard of proof for refugee exclusion is much lower than the criminal “beyond a reasonable doubt” standard.