Visiting Canada – dealing with the challenges in coming

In recent years millions of persons come to visit Canada. According to estimates of the Canadian Tourism Commission, in 2012 there were over 16 million overnight arrivals to Canada, of which nearly 12 million were from the United States. The second largest source of overnight arrivals was the United Kingdom, with 600,000 arrivals. Next was France with about 421,000. India was listed seventh, with 171,000 overnight arrivals. Included in the mixture are temporary residents who stay to work or attend school. While many are allowed into Canada, some are refused entry when they arrive, while many others are refused temporary resident visas they are required to have before they arrive here.

The immigration regulations set out rules on how people may apply to come to Canada, depending on what their intention is. The first distinction is a list of visa-exempt countries, whose citizens do not have to apply for a temporary resident visa before coming to Canada. The list of visa-exempt countries changes from time to time, depending upon a variety of factors, including whether or not certain foreign nationals are abusing the privilege of entering Canada by overstaying their visits. At present the visa-exempt list includes about 45 countries, primarily in Europe and including the United States, Australia and New Zealand. India was on the list until it was dropped in October, 1981, where it has remained ever since.

The temporary resident visa requirement creates an additional burden for potential visitors. Time and money has to be spent to complete application forms, gather supporting documents and to file the application. Depending on where the person applies, the process can be done within a week or can take several weeks.

Once an applicant has gathered information, completed the necessary forms and submitted them with the required processing fee, the application is reviewed by an officer who decides the application. Depending where a person applies, the process may require a personal interview. In the past decade, as government has worked to reduce its costs, more applications are decided without an interview. That means an applicant has to present all the best possible evidence to support their application in writing.

When deciding an application, a visa officer considers whether or not the applicant meets the requirements to apply and is not inadmissible. Persons may be inadmissible for a variety of reasons, including having a criminal record or serious health issues. The principle test applied to all applicants for a temporary visa is whether or not the applicant intends to remain in Canada temporarily (Immigration and Refugee Protection Act, para.20(1)(b)). If an officer believes a person may want to remain in Canada indefinitely, the application will be refused.

There are a variety of factors an officer may look at. None of the factors are set out in the rules, nor will you find them in any instruction manual for officers or in the guidebooks the provided on the immigration website. Typically, an officer is concerned with any evidence that would show the applicant will return to their home country, rather than stay in Canada. Does the person have a job? What assets, including real property do they have in the home country? Do they have immediately family members in the home country? What family members do they have in Canada? What is the reason for their visit? Do they have the means to support themselves for their expected stay?

If refused, it is usually done with a short cursory letter, with little explanation on it. Many failed applicants complain about not knowing why they were refused. The only way to get a detailed response is to apply to obtain a copy of the visa officer’s file.

Remedies against refused applications are limited. There is no formal right to have the decision reconsidered, though that may occur. The only legal remedy is to apply for judicial review in Federal Court in Canada. That means hiring a lawyer in Canada, a costly or impractical matter for most applicants. The Federal Court’s powers of review are limited, as a judge looking at the case decides only if the decision was unreasonable based on the information provided by the applicant. If the applicant failed to provide sufficient information, an officer may not be faulted on their conclusion.

An applicant can always reapply, with more information to address the issues that concerned the visa officer. The best remedy to be prepared to deal with the matter at the start by becoming informed about what is needed. That may involve seeking professional help with counsel experienced in these issues.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

Crackdown on immigration fraud tied to health care benefits

Recent proposed changes to the Citizenship Act have highlighted concerns raised by some critics of the purported abuse of the medical health care system in Canada by various persons. It is suggested that so-called citizens of convenience come to Canada only to take advantage of the social and health care benefits, without contributing to their cost. The potential abuse of the health care system is not limited to immigrants or naturalized citizens, but also applies to natural-born citizens. As the population ages and the need for health care increases, the government faces more pressure to control costs. One way to control costs is to spend more on enforcing the rules on coverage eligibility, something Sayed Geissah and Souad Khalaf found out about recently.

A government-funded health care system has been a part of social policy in Canada since the 1960s. Each province is responsible for the delivery of health care under the constitution. Each province has its own laws governing how health care is delivered and paid for, and who is eligible to claim its benefits. The principal law governing health care in British Columbia is the Medicare Protection Act.

Under that law residents are entitled to medicare coverage. The law defines a resident as a citizen or permanent resident who makes his or home in British Columbia, and who is physically present in the province for at least six months in a calendar year or a shorter period set under regulations. It also includes a person deemed by regulations to be a resident, but does not include a tourist or visitor.

Detailed rules concerning deemed residency, absences for vacation or work, and extension of absences are set out in the Medical and Health Care Services Regulation. The rules are extensive. Deemed residency extends to various foreign nationals in British Columbia, including those here under study and work permits.

The Medical Services Commission is responsible for enforcement of the Medicare Protection Act. It will investigate cases where questions are raised about a person’s residence and their continuing eligibility for coverage. Such an investigation arose in 2009 for Mr. Geissah and Ms. Khalaf. They immigrated to Canada in 1994 with their three sons. By 2002 their sons had moved. They now live throughout the Middle East. Since 2002, the couple claimed to visit their sons and grandchildren for up to six months each year, before returning to live in British Columbia.

The couple was asked to provide evidence of their travels between 2002 and 2010, which they refused to provide. Based on the evidence available, including that the couple had made no health care claims during two years and infrequently in all other years, the Commission decided the couple had not met the residency requirement during those years and retroactively cancelled their coverage from 2002 up to June, 2010. A review by a delegate upheld the decision. A subsequent application for judicial review by the Supreme Court of BC was dismissed. In January, 2014, the BC Court of Appeal upheld that decision.

The appeal court dismissed all of Mr. Geissah and Ms. Khalaf’s arguments, upholding the finding that the Commission’s delegate could reasonably come to the conclusion, based on the evidence before him, that it was more likely than not that the couple did not meet the residency requirement. The court noted that the finding was limited to MSP coverage and was not a determination of eligibility for entitlement to benefits under federal programs such as Old Age Security. Fortunately for the couple, the province did not seek repayment of the costs of the medical services it paid for during the ineligibility period

In 2011 14 per cent of Canada’s population was 65 years of age and older. That is expected to rise to about 23 per cent by 20131 and will remain at about a quarter of the population for the following 30 years. An aging population poses more demand on health care. Either the government finds ways to decrease costs, or increases taxation to pay for the increased costs. Efforts are being made to improve health through alternative and preventative medical treatment.

I expect there will be continued political pressure on government to crack down on abuse of the medicare system. For the past 15 years provinces have been diligently enforcing sponsorship undertakings to recover welfare payments. With tighter tax dollars available, there will be greater enforcement of medicare eligibility requirements. The federal government’s changes to the Citizenship Act and its emphasis on investigating immigration fraud, is part of the larger concern about funding social benefits in Canada.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

Cancellation of investor program raises many questions

There are currently dozens of different categories for potential immigrants to apply under, whether through federal or provincial nominee programs. Categories change as governments adjust policies to respond to changing economic and social circumstances. When the federal budget was unveiled last month, the government announced it was canceling the federal immigration investor program. The program had been in existence for nearly 30 years. The program was modified several times. In its final incarnation, the program offered permanent residence to potential immigrants having a net worth of $1.6-million, who invested $800,000 in a government fund for five years.

Earlier versions of the program allowed potential immigrants to invest in private businesses and funds. That proved open to abuse, with some businesses failing to carry out their intended investments and some investors losing their funds. The administrative cost of regulating such schemes, effectively requiring the immigration department to become a securities regulator, resulted in the adoption of the government fund model.

The government claimed, in canceling the program, that most immigrant investors are not making a long-term positive economic contribution to the country. It said employment and investment income is below Canadian averages and those of most other economic immigrants. Investors pay less in taxes over a 20-year career. They have the lowest official language ability of any immigrant category and are less likely than other immigrants to stay in the country over the medium to long term. Finally, very little “new” money came into the country, with almost all initial investments made through the program coming from Canadian bank loans.

On the other hand, other reports indicate that in settling in the country, investors added capital through the purchase of residences and transfer of personal property, as well as contributing through the purchase of goods and services. For several decades debate over immigration and investors has focused on its purported effect on real estate prices. Critics claim that housing prices in Vancouver, one of the more expensive places to live in the world, is the result of a large influx of investor immigrants buying up property to live in or for investment. Others suggest there is no direct correlation and the total number of sales does not reflect the number of immigrants coming as investors.

Much of the debate is premised on anecdotal evidence, as property sales do not track the origin of purchasers, or their immigration status. In 2012, the former governor of the Bank of Canada, Mark Carney, warned of the risk of foreign capital inflating the housing market. The 2011 census shows a shift in demographics in Metro Vancouver, with an increase of the immigrant population from 30 per cent in 1991 to 40 per cent in 2011, with 61 per cent of the immigrant population arriving since 1991. About 50 per cent of the immigrants coming in the past 10 years chose to settle in Vancouver and Surrey.

The effect of immigration on housing prices is not limited to Canada. The Sydney Morning Herald in Australia noted a few weeks ago, after the immigrant investor program was cancelled, that one major property developer reported that offshore investment in residential properties had doubled in 2013. The article speculated that Canada’s decision to limit investment immigration could only boost interest in Australia’s market.

The decision to cancel the program has prompted a reaction from some of the would-be immigrants who applied under the program. Earlier this week a group held a news conference in Beijing, asking that the government to process the 65,000 outstanding applications. They are also contemplating legal action against the decision.

That action will likely have an uphill battle to succeed. When the government introduces budget legislation to give effect to the cancellation, I expect it will include express terms to retroactively cancel the program and outstanding applications, as it did recently with another program for skilled workers. While the decision may be unfair and cast doubt on the government’s trustworthiness, it would be within Parliament’s power to enact such legislation.

The government’s decision raises fundamental questions about immigration law and policy, just as does the recently proposed changes to the citizenship law. How should would-be immigrants be chosen? What are the criteria in measuring an immigrant’s contribution to the country? To what degree should an immigrant be contributing economically to society, if they are to receive the social, health and economic benefits from the state?

The government says it will create a new immigrant investment program. It will be interesting to see what criteria it uses to select immigrants under the new program, and what economic and social benefits the new program will create for the country.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

Navigating the labyrinth of immigration channels

Making an immigration application involves a complex process; from choosing the category to apply under, to completing immigration forms and then dealing with the government officials making the decision on an application. In the past several decades the government has attempted to make the process more transparent and understandable, as the government has shifted the burden of completing applications onto applicants. The government’s attempts at making the process easy to understand haven’t always succeeded. Sometimes decisions are made that are difficult to understand or appear to have been made arbitrarily.

Ralph Watzke, a Canadian citizen, found himself in such a situation when he applied for a certificate of citizenship for his son Jeffrey. Jeffrey was born in the Philippines in about late 2005. What you would think would be a straightforward process turned into a seven-year struggle to have his son come to Canada. Mr. Watzke, acting on his own, initially applied to sponsor his wife (Jeffrey’s mother) and son as immigrants. He was told that since his son would be a citizen (as his father was Canadian at the time of the birth), he did not have to be sponsored as an immigrant, but dealt with as a citizen.

His wife’s application was processed and she came to Canada. Mr. Watzke had been told by the Canadian Embassy in Manila that he would have to undertake a DNA test for his son to prove that he was in fact his son. Mr. Watzke then applied in Canada for a certificate of citizenship for his son, hoping the decision would be made sooner than if done through the embassy in Manila. The office in Canada contacted the embassy in any case, and advised Mr. Watzke in 2009 that he would still have to obtain a DNA test for his son. Mr. Watzke felt the decision was discriminatory and wrote back to complain about it. Correspondence was exchanged over several years. In 2011 the office formally refused the certificate of citizenship for the son. Mr. Watzke applied to Federal Court to review the decision.

In January, 2014, Justice Russell concluded that the decision to refuse the certificate was unreasonable. The government had requested the DNA test because Jeffrey was born at home, not in a hospital. It did not accept formal government birth documents filed in the Philippines as proof that Mr. Watzke was the father. The government gave no rationale why a home birth would have resulted in the requirement for a DNA test. In deciding the decision was unreasonable, Justice Russell noted “There is no evidence that the reason for this requirement was ever explained to the Applicants or that it was publicly available in the policy manual or elsewhere.” The court ordered that the decision be reconsidered and suggested that the government deal with it in a timely way.

Not all applicants are as successful or as determined as Mr. Watzke in pursuing issues. The case points out the complexity of applying for immigration and citizenship status, especially in the past two decades as immigration rules have become more complex and the number of ways to apply has increased to the dozens.

The immigration law recognizes three categories of immigrants – involving families, economic immigrants and humanitarian immigrants. Finding which category to apply under is the first step in the process of moving to Canada. The second step, which can be as difficult or more so to navigate, is understanding the labyrinth of procedures and forms necessary to make an application. Some categories require up to a dozen forms to complete.

The Immigration Department has 10 different manuals, some of which have more than two dozen chapters, to guide the government officials administering each category. This does not include dozens of operation bulletins issued yearly, or the manuals and guidelines used by provincial immigration officials. While the Department publishes guidebooks, they do not easily describe the process or address all the issues that may arise in an application.

For many applications, the final decision is made at a Canadian Embassy overseas near where the potential immigrant lives. Each office has to follow the guidelines and department manuals in processing the application. However, there may be many variations in dealing with an application, depending on the country where the application is made. These issues are not dealt with in any specific immigration manual and no public guidance is published on how an individual office may deal with issues specific to the applicant’s country of origin.

In Mr. Watzke’s case, he found out that Manila has issues about the reliability of government forms as proof of a child’s parentage. Fortunately for him, the Federal Court found that the visa office’s inability to explain why the documents were not reliable in his case was unreasonable. When setting out on a journey, knowing how to navigate the route is important. Sometimes you need a good pilot to help navigate difficult or unknown waters.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.