Immigration

By Victor Ing (South Asian Post)

The hard truth is that not all immigration applications are approved. Clients often come to us asking what their options are for challenging a negative decision.
The course of action to take depends upon the type of application that has been made.
For the majority of immigration applications, the means of challenging a refusal is by filing a Judicial Review application at the Federal Court.
For sponsorship applications or loss of permanent residence status, there is a right of appeal to the Immigration Appeal Division (IAD) which is a branch of the Federal Tribunal, the Immigration and Refugee Board (IRB). In addition, there is also the option of simply re-submitting another application - "if at first you don't succeed, file, file, again!"
Let's look at these options more closely.
As immigration applications are made to the Federal Government, the appropriate court of jurisdiction is the Federal Court of Canada. In challenging an immigration refusal, it is necessary to file an Application for Leave and Judicial Review.
These are two separate requests made to the court in the initial written application - the application for leave is to ask the Court to consider whether to allow your application to proceed and the judicial review is the manner in which the Court can re-consider the decision that is being challenged.
Judicial review is not the same as an appeal. In an appeal, the decision maker can substitute their own decision for that of the original decision maker.
However, in a judicial review application, the judge is limited to "reviewing" the decision to see whether it was made according to the law or rules of procedural fairness.
The evidence before the Court is limited to only the material that was before the immigration officer at the time of the application and it is all based upon affidavit evidence - there are no actual witnesses in the Court.
If the judge determines that a decision was not made in accordance with either the law or the rules of procedural fairness, he or she can only set the decision aside, re-open the case, and refer it back to be reconsidered by another immigration officer.
The judge can not substitute their own opinion. An appeal at the IAD is a "hearing de novo" which means it is a completely new hearing of the application where new evidence can be presented and the Board Member can render a completely new decision.
There are typically several witnesses providing "viva-voce" or "live" evidence, as well as documentary or affidavit evidence. If an IAD appeal is not successful, it can then be challenged by way of Judicial Review to the Federal Court.
Both the Federal Court and the IAD are subject to a legal principle called "res judicata" which is a Latin expression which means "the thing has been decided". Once a case has been decided by a Court or Tribunal, it is not possible to have the case reheard on the same set of facts and circumstances.
This precludes applicants from bringing their case before the Court or Tribunal over and over again. In many situations, it is preferable to simply submit a new application with stronger evidence to support the decision that an applicant is seeking.
This preserves an applicant's opportunities for relief before the IAD or Federal Court should they still be necessary. Filing another application is often preferable as it also avoids the expense and delay of a Federal Court or IAD hearing which can take many months and, in some cases, years.
When faced with a refused immigration application, there are several courses of action that can be taken. It is best to consult with an immigration professional to decide what the best option is for your case.
While both immigration lawyers and consultants are able to prepare immigration applications and appear before the IRB, only lawyers are able to appear before the Federal Court.

By Parisa Mahboubi (New Canadian Media)

Strong literacy skills improve new immigrants’ employability and earnings capacity. But immigrant literacy skills in Canada lag non-immigrants despite the large proportion of immigrants with university degrees, according the 2012 OECD Programme for International Assessment of Adult Competencies (PIAAC).
My latest research for the C.D. Howe Institute — The Power of Words: Improving Immigrants’ Literacy Skills — argues for policies to enhance immigrants’ literacy skills through improvements in Canada’s immigration selection and settlement policies.
The literacy skills gap between immigrants and non-immigrants is evident across all levels of education, including university-educated immigrants. It underscores why some immigrants struggle to successfully transfer their skills upon arrival. Among immigrants, however, those who obtained their highest educational attainment in Canada perform better than others perhaps due to having a better knowledge of language and receiving a high-quality education.
My study shows that, indeed, language is a major factor in the skill gaps between immigrants and non-immigrants. Better language abilities in English or French result in higher literacy outcomes among immigrants, allowing them to do better in the labour market.
Australia has a comparable immigration system, but its immigrants outperform Canadian immigrants in literacy scores. Why? Australia’s changes to language testing for prospective immigrants in 1999 is a major cause of improvements in the average performance of immigrants, particularly those with a mother tongue other than English.
Although Canada announced similar policy reforms to its immigration system around 2010, its approach is more lenient than Australia’s. Canada assigns two-thirds of total possible language points to applicants under the Federal Skilled Worker program (FSW) who meet the minimum English Language Testing level while Australia provides no reward for candidates under its a skilled immigration program with the same level of language proficiency.
In other words, applicants who demonstrate language skills that meet the most minimal thresholds have a much higher chance of being admitted for immigration in Canada relative to Australia. This implies that Australia’s system targets candidates with superior language skills, who are more easily able to integrate and access more opportunities for gainful employment, while Canada only screens out applicants with very limited language ability.
The growing importance of immigration as a source of growth for Canada’s labour force requires a more effective immigration points-based system that selects the best candidates, according to their ability to settle in Canada, either by giving more weight to language proficiency or by making language testing more rigorous, or a combination thereof.
The government can also grant permanent residency to more former international students who obtained Canadian credentials. Further, immigrants not admitted through the points system – those in family class and refugees – tend to struggle the most with literacy, so federal and provincial governments need to make sure new better, more rigorous language training is available.

(Parisa Mahboubi is a Senior Policy Analyst at the C.D. Howe Institute.)