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Visiting Canada: What can I do if my visitor visa application is refused?

28/2/2019

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As with any other type of visa or immigration application, there are no guarantees that everyone who applies for a visitor visa will receive one. In assessing each application, visa officers are looking to see if you are eligible and will abide by the conditions once a visitor visa is granted. While the overall number of visitor visas has increased dramatically in the past few years, the refusal rate has also increased. If your visitor visa application is refused you will undoubtedly be disappointed. But depending on the reasons for your refusal there may be options for you to pursue to change the decision or to make a new application.

1. Understanding why your application was refused

our application may be refused for a number of different reasons. Before you can make a new application you must understand the reason and make sure that this mistake can be overcome in your new application.
One of the common reasons for refusal is that the application is not detailed enough and does not contain sufficient documents to demonstrate your eligibility and your ties to your home country to demonstrate that you will leave Canada. It is the duty of applicants and their representatives to make sure that they provide a full application with documents that will convince an officer of your eligibility.


2. Mistakes can be made
Sometimes it is possible that a mistake may be made when processing your application. For example if your refusal letter states that you have no travel history but you have travelled to dozens of countries and provided proof of your travels then it is possible that the documents may have been missed when assessing your document. In such circumstances we are often able to request a reconsideration of the decision by explaining the error within a short-time after the decision is issued.

3. Appeal options
If a negative decision is made on your visitor visa application (or other temporary application such as study permit or work permit), you have the right to apply for judicial review of the decision in Federal Court in Canada. There is limited time to apply to Federal Court so you must seek legal advice as soon as possible to determine if this is the best way to proceed. In deciding whether to apply to Federal Court we look at the basis of the decision made and whether the decision was incorrect based on law or the facts.

4. Dealing with misrepresentation
If you provide incorrect information and documents in your application, whether on purpose or by mistake, your application may be refused because of misrepresentation. The consequences of a finding of misrepresentation are severe and you may be prevented from submitting a new application for a number of years. Depending on the circumstances of your case you should contact a lawyer to seek advice on the best way to respond. As you are prevented from re-applying you will need to either resolve the issue at the Visa Office by proving that there was no misrepresentation or apply to federal court if a mistake was made in determining the misrepresentation in your application.

5. How quickly can I re-apply for a visitor visa?
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Your ability to re-apply will depend on the reason for your refusal. If your application was refused for misrepresentation you may be prevented from applying for up to 5 years. However, if your application was refused because you did not provide sufficient proof of ties or financial support you may be able to apply again and provide the missing documents and information. In most cases, if you reapply before there is a change in your circumstances you are likely to receive a similar response. You should allow yourself sufficient time to be able to take steps to overcome the shortcomings of your application, such as acquiring more travel history before you submit a new visa application. Therefore it is critical that you understand the reason for your refusal before you make any plans to submit a new visitor visa application.
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International Students Part 3 – Studying in Primary or High School in Canada

11/8/2018

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Over the past few weeks I have written about international students that choose to study in Canada. Typically when we think about international students we think of college and university students pursuing post-secondary education. This week I want to turn to another group of international students: minor international students studying in Canada at the primary and secondary school level.

Why Do Families Choose Canada?
There are different reasons why a family may choose to have their minor child study in Canada as an international student: the child may be accompanying his or her parents as they work or study in Canada, or the family may have an immigration application in process and want their child to have a head start and study in Canada before the family receives their immigration status. However, in an increasing number of cases families are choosing for their minor children to study in Canadian primary and secondary schools and obtain a Canadian high school diploma.

The numbers are interesting and while there are no official number released for 2018 yet, the number of international students applying to the school boards in Ontario and British Columbia has increased significantly in the past five years.

Which School Should We Choose?
Minor children have the option to choose between a number of different school options: public schools, Catholic schools and private schools. Depending on the type of experience that the child or child's family is looking for it is possible to find a school that is suitable. Some schools offer homestay opportunities that allow their students to live with a local family. There are also boarding schools that allow students to live in the school's dormatories. While there are many different school options, if you are looking to enrol in a private school it must be certified by the provincial Ministry of Education as a registered private school.

If you would like your child to study in Canada you should start the application process as soon as possible because spaces in schools fill up and you have to act fast to get into the most popular schools.

At What Age Should Minor Students Come To Canada?
It is possible to study from grade 1 to 12 as a minor student. However, the most popular grades are in high school, and particularly grade 11 and 12, that allow students to become familiar with the Canadian education system, improve their English and have a better chance of entering Canadian post-secondary education.

Who is a Custodian?
Across Canada the age at which a child is considered a minor is different. For example in Ontario it is children under 18 but in British Columbia it is children under 19. If a minor child is studying in Canada they must either be living with their parent or legal guardian, or they must have a custodian. A custodian is a responsible adult, who is a Canadian citizen or permanent resident who will take care of and support the minor child.

In the case of younger children it is often advisable that they be accompanied by at least one parent and we routinely obtain visitor visas for parents to accompany younger children studying in Canada. However, where a parent cannot accompany the child a suitable custodian can be selected and the custodian must undertake to take care of the child in Canada. A custodian can be a close family member such as an aunt or uncle or trusted family friend. If it is not possible to find such a person there are companies that provide custodianship services.

Unfortunately there is no clear federal or provincial program to oversee the custodians for international students, therefore it is extremely important for parents to ensure that they find qualified custodians for their children. The government will likely have to create a framework for supervision of custodians in the future as the number of minor international students increases across Canada.

Do Minor Students Need A Study Permit?
Students that want to enrol fulltime in a school in Canada, for studies that are longer than 6 months long, must have a valid study permit. Depending on the circumstances of each case an immigration lawyer can advise you of the required documents for the study permit application. It is important to note that one of the most important requirements in order to obtain a study permit is for the child's family to demonstrate that they will be able to cover all the expenses related to the child's studies and stay in Canada.

If you are interested in having your child study in Canada you must apply as early as possible as processing of study permits can take several weeks, and can become more complicated if coupled with a visitor visa application for an accompanying parent.  
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Celebrating Canada Day With Canadian Citizenship

28/6/2018

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This Canada day will be extra-special for hundreds of people as they participate in special Canada Day citizenship ceremonies scheduled across the country where they will finally be able to become Canadian citizens.

Through out the 151 years since the enactment of Canada's Constitution Act of 1867 that united the colonies of Canada, New Brunswick and Nova Scotia into a single dominion known as “Canada”, the country has had different rules and regulations for allowing immigrants to enter Canada and how they qualified to become citizens of Canada.

As a dominion under British rule, Canadians were initially classified as “British Subjects”. Over the years a new and separate status of “Canadian national” was created by the Canadian National Act of 1921. Canada continued to gradually gain its independence from Britain which culminated in the Constitution Act of 1982 and Britain ceased to have any legislative authority over Canada.

The current Citizenship Act was amended significantly in 2017 based on the election promises of the Liberal Party and made important changes to the requirements to qualify to become a citizen and equally importantly the right to retain citizenship. Under Canada's current laws there are four ways you can acquire Canadian citizenship:
  1. by birth on Canadian soil
  2. by descent (being born to a Canadian citizen parent) – there are some limited exceptions that I have written about before
  3. by grant or naturalization where you apply to become a Canadian citizen upon meeting the eligibility criteria
  4. by adoption
While the process of citizenship by birth and descent is automatic, for become a naturalized citizen you will need to follow a process set out by the Citizenship Act. Once you apply, Immigration, Refugees and Citizenship Canada (“IRCC”) will first check to ensure that you meet the eligibility critiera: for example have you been physically present in Canada for the requisite number of days or do you have proof of your language ability?

If you pass this initial assessment, you will be invited to write the citizenship exam if you are between 18 and 54 or attend an interview if outside of this age range. Also as part of the assessment IRCC will run background checks to confirm that you do not have any criminal charges or convictions in the past 4 years before your citizenship application that would make you criminally inadmissible for Canadian citizenship.


Once your eligibility has been confirmed you will be invited to attend a citizenship ceremony and take the oath of citizenship. While children under 14 and certain other individuals are exempted, to become a citizen by naturalization you must take the oath of citizenship. The oath of citizenship is a statement that is recited and signed in the citizenship ceremony where you promise or declare your fealty to the Canadian monarch and promise to abide by Canada's laws and uphold the duties of Canadian citizenship. Upon signing the oath of citizenship you will be presented with a citizenship certificate that will be your proof of Canadian citizenship and will make your new status as a Canadian citizen.

If you are interested in attending a citizenship ceremony on Canada Day you can find the times and addresses of local ceremonies here:  https://bit.ly/2yPD80Y​
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Work Visas Under NAFTA What is at risk in NAFTA negotiations

21/6/2018

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The North America Free Trade Agreement, NAFTA, has been constantly in the news for the past year. Canada, the US and Mexico have been renegotiating the trade agreement that came into force in January 1994. While there have been changes and updates to NAFTA over the past three decades, from the sound of things the current negotiations will likely lead to major changes.

As a trade agreement, NAFTA contains provisions related to trade between these three countries, but it also includes provisions that allow citizens of the countries to work in any of the other three countries. The goal of these provisions was to make the flow of workers easier and thereby facilitate trade between the three countries. For example, based on the latest figures available, in 2016 Canada granted work permits to 17,602 Americans and 691 Mexicans under NAFTA professional provisions. In the same year, the US issued 14,768 NAFTA professional visas to Canadians and Mexicans.

NAFTA has a number of provisions that allow for the movement of people including Intracompany Transfers, Treaty Traders or Investors as well as educated professionals. For example under the professionals category, educated Canadians, Americans and Mexicans in 63 occupations can obtain work permits for up to three years to work as engineers, accountants, lawyers and so on. Under NAFTA, citizens may apply to work in any of the three countries, as long as they have a qualifying temporary employment offer. This process is much easier and faster than the process that a citizen of another country would face to secure work authorization and enter the North American workforce.

Professionals under NAFTA must fall under one of 63 occupations listed in the current NAFTA provisions. This list was created before the rise of the digital era and therefore does not include many high demand occupations. Therefore, the NAFTA negotiations are an opportunity to update this occupation list. However, the current NAFTA negotiations and the general anti-immigrant political climate in the US will not only make it difficult to update this list but there is talk that the professional provisions may be removed entirely, putting the status of tens of thousands of Canadians, Americans and Mexicans in jeapordy.

Unfortunately it is not clear what will happen to professionals if NAFTA negotiations breakdown and the US withraws from NAFTA. The good news for Canadian businesses that hire American and Mexican workers is that they may be able to apply for authorization and work permits for their employees under other programs such as the global talent stream. However, the fate of Canadians and Mexicans in the US is less clear, particularly with the strong competition for existing professional work permits and we may see thousands of Canadians returning home to Canada, reversing the general trend over the past few decades of Canadian talent leaving for the US. While the negotiations and talk of trade wars continue it is impossible to predict what will happen but we can hope that cool heads prevail and the provisions are saved and updated to allow for many more decades of prosperous trade and free movement of work between the three countries.

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Hiring a foreign employee: the case of foreign caregivers

14/6/2018

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Over the last two weeks I have written about the possibility for Canadian businesses to hire foreign workers in Canada when they face a labour shortage. This week I am writing about the case of a special category of employers: families that want to hire a foreign caregiver to work in their home to look after children or a family member with high medical needs.

As with all other visa and immigration categories, the caregiver category has changed greatly in recent years. A few months ago I wrote about changes that would impact the ability of caregivers already in Canada to be able to obtain permanent residence. But what can you do if you want to hire a foreign caregiver? Here are answers to your top three questions as you consider whether and how to hire a foreign caregiver:

1- Can I hire a “live-in” caregiver or nanny?
You cannot require that the caregiver must live with you or the family member that they are looking after. However, it is possible for the caregiver to agree to live with you or the family member that they are caring for. If you come to an agreement with your caregiver for her or him to live in your home, you must:
  • provide accommodation in the form of a private bedroom that is furnished
  • the bedroom door must have a lock and safety bolt on the inside
  • the bedroom must meets the municipal building requirements and the provincial / territorial health standards
  • you cannot charge the caregiver for room and board for the accommodations

2- What is the process for hiring a foreign caregiver?
In order to hire a foreign caregiver, you must be meet the following requirements:


  • Demonstrate that you want to hire someone to provide care on a full-time basis (minimum 30 hours per week).
  • Demonstrate that you want to hire someone to work in the private household where the care is being provided.
  • Prove that you have eligible individuals requiring care (either that your children are under 18 or that your family member has high medical needs).
  • Prove that you have the financial ability to pay the caregivers' wages. You will be required to provide your Notice of Assessment as part of the application process.
  • Prove that have conducted recruitment and advertisement in Canada to try to find a caregiver in Canada before looking for a foreign caregiver.

If you meet these requirements you can submit an application to Employment and Social Development Canada and if your application is approved you will be able to apply for a work permit for your foreign caregiver.

You should also note that once your caregiver is in Canada you must comply with all the requirements of the Ontario Employment Standards Act that sets out the rights that employees have including minimum wage, overtime pay, public holidays, severence pay, and various kinds of leave such as pregnancy leave, medical leave, and so on.

3- What costs are associated with hiring a caregiver?
The process of hiring a caregiver can be complex as described above. It also requires payment of at least the following costs:
  • Employer Compliance fee: $230
  • Labour Market Impact Assessment application fee: $1000 (this is waived if your total family income is below $150,000)
  • Advertising costs: there may be some costs associated with advertising for 4 weeks before we can submit the application (this is one of the trickiest parts of the application)
  • Work permit application fees: $155
  • If biometrics are required: $85
  • Transportation costs for the caregiver to travel to Canada for your caregiver
  • Private health insurance for the first three months before your caregiver becomes eligible for health insurance in Ontario (this will differ in other provinces)
  • Work place safety insurance for your nanny as a monthly premium

You should also note that you are required to provide compensation for your caregiver at the prevailing wage in the area you live. For example, the median wage in Toronto is $14 per hour and you will have to offer the same to a caregiver you wish to employ in Toronto.

Given the complexity of the process and costs involved you should speak with a specialized immigration lawyer to evaluate your chances and create the best path for bringing a caregiver for your family to Canada.
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    Authors: 
    Zeynab Ziaie 
    Zahra Ziaie 

    Note: This information is not intended as legal advice or opinion. You should always seek specialized legal advice with regards to your situation as the facts of each case are unique and the application of law varies in every case. 

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