2006
 
STUDYING IN CANADA - REVISITED 
In most cases, students wishing to study in Canada need to obtain a study permit, but there are some exceptions. During the course of his or her studies, a foreign national may be able to work under certain circumstances and subject to some conditions. Work opportunities include on campus and off campus employment as well as co-op and internship programs. Graduating students may apply under the post-graduation work program. IN GENERAL Applicants who are not Canadian citizens, permanent residents of Canada or a family member of a foreign representative accredited to Canada or a member of the armed forces of a country that is a designated state for the purpose of the Visiting Forces Act must obtain a study permit to study in Canada. SHORT TERM STUDIES A study permit is not needed for any program of study that is six months or less that can be completed within the period authorized upon entry into Canada. However, if the student’s program of study is six months or less but the student intends to continue his or her studies in another program, he or she should apply for a study permit before coming to Canada. This will allow the student to apply to extend his or her stay as a student from within Canada. Otherwise, if the foreign national does not hold a study permit, he or she will have to apply for one outside Canada. REQUIREMENTS The applicant must meet the requirements of the Immigration and Refugee Protection Act and Regulations and the stay must be temporary. The applicant must also:
The applicant will be required to submit an Application for a Study Permit (IMM1294) as well proof of acceptance, proof of identity and proof of financial support. WORK OPPORTUNITIES FOR FOREIGN STUDENTS Working on Campus The applicant may work on campus without a work permit if he or she is engaged in full-time studies at a Canadian university, a community college, a CEGEP, a publicly-funded trade or technical school or a private institution authorized by provincial statute to confer degrees; and possesses a valid study permit. Working Off-Campus The off-campus work program will allow foreign students at publicly-funded post-secondary educational institutions to work off-campus while completing their studies. Publicly-funded post-secondary educational institutions are:
Off-campus work is an option for students studying at such institutions in provinces that have signed agreements with Citizenship and Immigration Canada ("CIC"). These provinces currently are Nova Scotia, Quebec, Manitoba and New Brunswick. The Department is also negotiating memoranda of agreement with other interested provinces and territories in order to make the option of off-campus work more widely available. CIC has advised that the funding for this program has yet to be approved by Parliament. The Department nevertheless continues to negotiate with provinces and work on the details and the logistics of this program, which will be implemented as soon as funding is confirmed. Meanwhile, work off-campus is only available in those provinces with off-campus pilot projects (i.e. Quebec, Manitoba and New Brunswick). To be eligible for an off-campus work permit, an applicant will have to:
Co-op and Internship Programs For some academic programs, work experience is part of the curriculum. Foreign students who wish to participate in a co-op or internship program must apply for a work permit. To be eligible for a work permit, the following conditions must be met:
Post-Graduation Employment The post-graduation work program is designed to provide graduating students with Canadian work experience in their field of study. Since May, 2005, this program has allowed certain students to work for up to two years after their graduation. Previously, students were only allowed to work for a term of one year. However, the work permit cannot be valid longer than the length of time the student had studied. (For example, students graduating from a four-year degree program may be eligible for a one-year work permit or, if they meet the criteria, a two-year work permit. Students graduating from an eight-month certificate program would only be eligible for a work permit of eight months.) To obtain a work permit that is valid for one year or less after graduation, the applicant must have:
In order to apply for a work permit of up to two years after graduation, the applicant must meet all of the criteria above. In addition, he or she must have:
HAMID V. CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION): LOCK-IN OF REQUIREMENT OF FINANCIAL DEPENDENCY
In Hamid v. Canada (Minister of Citizenship and Immigration), the decision of the Federal Court was handed down on December 1, 2005. The application for judicial review of a decision by an immigration officer removing the applicant’s sons from his application for permanent residence on the grounds that they were not financially dependent was successful, as the visa officer should have considered whether they met the requirements at the time the application was filed and not at the time of visa issuance. FACTS Mr. Mujahid Hamid submitted an application for permanent residence under the Skilled Worker class in February, 2002. He included his spouse and three sons in the application. At the time the application was filed, the two older sons were 23 and 22 years old, respectively, and both were enrolled in full-time studies. The sons graduated in June, 2002 and May, 2003, respectively. In a decision dated September 28, 2004, the visa officer advised Mr. Hamid that both the older sons would be removed from the application "as they are not eligible to be included as your dependents". The visa officer’s reasons were as follows: Your sons, Ali and Bilal were over the age of 22 when your application was received in our office and, consequently, they must meet the criteria outlined in part (b)(ii) or (iii) of [s. 2 of the Immigration and Refugee Protection Regulations (the "Regulations")] . . . I have concluded that they do not meet the definition of a dependent under the Regulations. If a child over the age of 22 is considered dependent on date of application by virtue of R2(b)(ii) or (iii) - financially dependent due to full-time study or physical or mental condition - than (sic) the child must still meet the requirements of these provisions at the time of visa issuance in order to be included as part of the parent’s application. ISSUE The issue in this case was one of statutory interpretation: "did the visa officer err in concluding that Ali and Bilal were required to meet the definition of "dependent child", as set out in the Regulations at the time of the visa issuance?" Specifically, did the Regulations require the status of a dependent child to be assessed only at the time the application was made, or also at the time when the visa is granted? ANALYSIS The Honourable Madam Justice Snider reviewed the relevant regulatory framework and noted that the requirements in respect of family members of a skilled worker applicant are set out in s. 84 and 85 of the Regulations as follows: Family members 84. The requirement with respect to a person who is a family member of a skilled worker who makes an application under Division 6 of Part 5 for a permanent resident visa is that the person is, in fact, a family member of the skilled worker. Permanent resident status 85. A foreign national who is a family member of a person who makes an application for a permanent resident visa as a member of the federal skilled worker class shall become a permanent resident if, following an examination, it is established that the family member is not inadmissible. She then noted that the definition of family member in the Regulations includes "a dependent child". In turn, "dependent child" is defined as: … a child who … (ii) has depended substantially on the financial support of the parent since before the age of 22 -- or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner -- and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student (A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and (B) actively pursuing a course of academic, professional or vocational training on a full-time basis… Madam Justice Snider then went on to review the practice of Citizenship and Immigration Canada ("CIC"), including CIC’s internal memorandum, and noted that "while the concept of age lock-in is not directly before me, it is impossible to examine the relevant provisions without noting the apparent anomaly in treatment of children depending on whether they fit within the category of age or that of financial dependency." At paragraph 15 of the reasons for order, she noted that the term "lock-in" is used "to describe the situation where an application is to be assessed as of the date of application rather than the date of processing. Due to the fact that processing of applications may not be completed for years after an application is filed, the concept of lock-in becomes very important in the context of immigration." The Judge noted that there were no words in the definition of "dependent child" or in sections 84 and 85 of the Regulations relating to the Skilled Worker Class that address the issue of lock-in of either age or financial dependency. The Regulations were silent on whether educational status must be maintained for the period between the application date and the processing of the application. DECISION Madam Justice Snider reviewed the jurisprudence and concluded as follows: In my view, the principle upon which these decisions were made is simple; an applicant who otherwise meets the criteria of selection for immigration to Canada should not be penalized for circumstances beyond his control. In the case of a child who turns 23 during the time a parent waits for processing, the courts have held that the family should not suffer separation due to the arbitrariness of the application process timing. "The application date is the only date within the control of the Applicant and is consequently the only date that can be established without arbitrariness"… In summary, "the principle behind lock-in that has been applied to the age requirement for dependent children also should be applicable to the requirement of financial dependency. Accordingly, in my view, there is a presumption that lock-in applies except where the applicable statutory provision requires an evaluation as of a different time." Therefore, "all factors (including financial dependency) set out in the definition of dependent child are locked in as of the date of application for purposes of section 84 and 85 of the Regulations." PASSPORT CARDS INTRODUCED FOR U.S. CITIZENSBUT CANADIANS WILL STILL REQUIRE PASSPORTS TO TRAVEL TO THE USA
On January 17, 2006 U.S. Secretary of State Condoleezza Rice and Secretary of Homeland Security Michael Chertoff introduced a measure to issue new "passport cards" to U.S. citizens, as an alternative to the traditional passport book, for travel through U.S. land border crossings. The new "passport cards", equipped with a photo and a chip with radio frequency identification, will cost about 60% less than the traditional passports. It has been widely praised as a step in the right direction by border communities in both Canada and the United States. The requirement for passport to travel to the United States was first introduced as part of the "Western Hemisphere Travel Initiative" back in December 2004. The "Western Hemisphere Travel Initiative" requires all people moving to and from North and South America (including the United States, Mexico and Canada), Bermuda, and the Caribbean to have a passport or other acceptable document when arriving at U.S. ports of entry. The first phase of the "Western Hemisphere Travel Initiative", now in effect, requires all U.S. citizens traveling by air or sea to or from the Caribbean, as well as Central and South America, to have passports. The next phase, which will affect Canadian citizens, imposing the passport requirement to all air and sea travel between the United States and Canada by U.S. and Canadian citizens, will begin on December 31, 2006. The final phase will take effect on December 31, 2007, and will apply the passport requirement to all travel by air and sea and through land border crossings between the United States and Canada by U.S. and Canadian citizens. The new "passport cards" are being introduced to reduce the inconvenience at land border crossings caused by the passport requirement when it becomes effective on December 31, 2007. The new "passport cards" will only be accepted at land border crossings, and not border crossings by air or water. Accordingly, critics argue that the passport requirement will still affect the airlines, ferries and cruise industries and cut impulse visits by U.S. tourists to Canada. U.S. tourists bring billions of dollars to Canada every year, and Canadians travelling to the USA return the favour. Critics are predicting that the new "passport cards" will do little to reduce its effect on the $9.5 billion tourism industry in British Columbia, especially as it prepares for the 2010 Winter Olympics. Canada has been asked to develop its own version of the "passport cards" that comply with U.S. entry requirements. Without a similar "passport card" like the one introduced by Secretaries Rice and Chertoff, Canadian citizens will likely still be required to carry a passport to travel to the United States by December 31, 2006.
The following are the major events on the calendar of the Vancouver Organizing Committee for the Olympic Games (VANOC) for 2006:
QUESTIONS OR COMMENTS
For more information on any article contained in this issue of Clark Wilson LLP’s Immigration Lines or on any immigration matter, please contact any member of our Immigration Group.
|
Tel. 604.643.3158
E. kki@cwilson.com
Immigration Consultant
Tel. 604.643.3148
E. rem@cwilson.com
Tel. 604.643.3154
E. npm@cwilson.com
Tel. 604.891.7715
E. lky@cwilson.com