Andrew Miller

Below is the edited by myself English version of tabled Amendments - for convenience of readers I have edited it by adding original versions of sections being amended (in italic blue) with indicated in red changed words/phrases. Parts that Amendment adds anew are shown untouched.

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IMMIGRATION AND REFUGEE PROTECTION ACT
2001, ch. 27

Amendments to the Act

116. Subsection 11(1) of the Immigration and Refugee Protection Act:

11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.

is replaced by the following:

11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.


117. Subsection 25(1) of the Act:

25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.

is replaced by the following:

25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.


118. The Act is amended by adding the following before the heading “Loans” before section 88:

Instructions on Processing Applications and Requests


87.3 (1) This section applies to applications for visas or other documents made under subsection 11(1), other than those made by persons referred to in subsection 99(2), sponsorship applications made by persons referred to in subsection 13(1), applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada and to requests under subsection 25(1) made by foreign nationals outside Canada.


Attainment of immigration goals

(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.


Instructions

(3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions

(a) establishing categories of applications or requests to which the instructions apply;

(b) establishing an order, by category or otherwise, for the processing of applications or requests;

(c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and

(d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.


Compliance with instructions

(4) Officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister.

Clarification

(5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made.


Publication

(6) Instructions shall be published in the Canada Gazette.

Clarification

(7) Nothing in this section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act.


119. Paragraph 94(2)(a) of the Act:

(a) the activities and initiatives taken concerning the selection of foreign nationals, including measures taken in cooperation with the provinces;

is replaced by the following:

(a) the instructions given under section 87.3 and other activities and initiatives taken concerning the selection of foreign nationals, including measures taken in cooperation with the provinces;

Transitional Provision


120. Section 87.3 of the Immigration and Refugee Protection Act applies only to applications and requests made on or after February 27, 2008.
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Now we need to wait for the passage of amendments to IRPA - likely soon after that government will publish changes to Regulations. Those changes are the ones we all are waiting for as they will provide more details.

After that of course we need to see Instructions as well as changes to relevant chapters of Immigration Manual in order to see the entire new picture.

Wait and speculations continue....

Andrew Miller

Now my comments, observations and very limited in scope conclusions.

1. First of all - amendments don't really change anything important for applicants already in process as far as IRPA alone goes, because said amendments don't (as they cannot) change existing Regulations.

Thus applicants with application submitted prior to Feb 27 2008 should not relax yet, as existing Regulations (if R77 won't be changed, amended or repelled) make them still subject to change in pass mark prior to final assessment of their applications and before visas are issued. They also remain vulnerable to R76(3) Substitute Evaluation that may be used more often now to refuse applicants who, in the processing officers opinion, didn't demonstrate abilities and good chances for successful economic establishment in Canada (it may easy be used against those who don't have arranged employment too).

The only matters that won't affect pre-Feb 27 2008 applicants are all new things introduced by section 118 of the tabled amendments.

2. All the important matters for applications received on or after Feb 27 2008 are all indicated in section 118 of amendments.

The introduction of Instructions and very wide, open ended ((7) Nothing in this section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act.) scope of Instructions will make the brand new game for everyone who applied and will apply since the cut-off date.

Minister through use of Instructions will decide what to process and what not to process at all at any given time, set up categories of applications (within the class), set processing priorities for different categories (by occupations or other factors?), set up each year quotas for every category, decide what applications will be processed and which will be returned without processing (thus without refusal), etc..

It makes the process very difficult to predict by applicants (regardless CIC's claim that it will make process more transparent) - those who won't fully understand new (changing often) rules of the game, their consequences and how to use them to their own benefit and who won't have access to up-to-date policy and operational bulletins, etc. that micromanage program will be most vulnerable and likely they will be gambling with their applications.

If amendments stated in section 118 pass as tabled then Minister will get new, open ended discretionary powers - it will be good if used for quick adjustments and micromanagement, as long as used properly. But with governments who come and go, politicians using immigration as political tool everything bad may be possible too.

3. Amendments don't deal with the backlog at all - regardless backlog being used as excuse (or smoke screen) for amending IRPA.

If Minister really wants to reduce or eliminate backlog and at the same time fulfill Department's obligations and promises to provide Canada with immigrants our economy needs the most today (not 3, 5 or 7 years ago) then brutal, but absolutely necessary use of management tool called pass mark may be the only solution we'll see.

Unless government decides not to deal with the backlog (at least not officially) - new quotas and their allocations plus processing priorities may easy make old applications without arranged employment wait forever for their turn to be assessed. This way government may avoid possible lawsuits (regardless current law allowing for retroactive implementation of pass mark changes) and hope that affected applicants will either get arranged employment in occupations in demand or will give up.

4. Will amendments to IRPA pass?

Likely yes - because they are part of the budget bill. Vote on budget is a confidence vote, if government fails to pass budget through Parliament it means new election. Current government may want election as it will likely give Conservatives the majority they want, as recent polls show Conservatives may gain overwhelming majority if election is held this Spring. For the very same reason opposition parties don't want election - thus it is likely Bill C-50 will pass.

sim2point4

If they raise pass mark, surely they won't include applications 2+ years old, am worried now as mine is nearly 26 months old with no update letter yet!
Have bypassed New Zealand chance for residence in order to wait for Canadian application, I know this is my choice and it is not certain that I will get permanent residence or not, but it would be a severe blow to not even get a chance to be processed if they raise the pass mark after 26 months of waiting! What was the longest application wait time when they changed pass mark before that affected those applications who filed lawsuits?

Andrew Miller

It depends from visa post - but majority of backlog back then was in Asia where for example Beijing and New Delhi processing times were exceeding 7 years mark.

Lawsuit at that time was warranted simply because the old law didn't have the provision to apply changes retroactively. When lawsuit was filed Federal Court tossed out claims from all who applied on or after Jan 1, 2002 stating clearly that they submitted applications after the implementation date of current law which already has retroactivity clause in it. Challenged retroactivity clause in current law was upheld by Federal Court and is alive and well.

As I wrote in my previous post government instead of raising pass mark may simply let all cases without arranged employment wait forever - this way government will avoid costly lawsuits. Lawsuits would be filed regardless fact that current law provides retroactivity provision and then government would have to spend a lot of money anyway.

Eventual decision about raising pass mark or letting application without arranged employment wait forever would likely be made purely on costs basis, unless politicians would try to play some other game. All remains to be seen.

You know for long time that your best (if not only) option was to find arranged employment to boost and speed up your case - why haven't you done it yet? You wouldn't have to worry now.

sim2point4

So Canadian government have no qualms about making people wait for nearly a quarter of a decade or longer,then move the goal posts when it suits! God this immigration lark is not for the faint hearted! Guess will have to wait and see if they show any mercy or not!

sim2point4

Husband has already had a positive LMO for a job in a desolate part of Nova Scotia, after much soul searching we decided against going on a temp 1 year permit and uprooting our 2 children to take them somewhere that we would not settle, just to get over quick. So we decided to continue with our permanent residence application. We want to come over permanent from the outset, and would hate to have to come back if we failed our meds or something. I know you will probably think that we are stupid, but we are looking at the end result of starting a new life, so that our emigration is successful. If it were just the two of us we could take any risks.

Andrew Miller

Why would I think that you are stupid?

Everyone is looking for the best for themselves and their families - it is the way it should always be.

But unfortunately every country's immigration laws are in place to serve interest of that country and it's economy, not for the benefit of immigrants - thus it is the immigrant who takes the risk.

Current law is in place for over 6 years with it's retroactivity provision in it from the inception:

http://www.canlii.org/ca/regu/sor2002-227/sec77.html

and every applicant in skilled workers class should be aware of it and do everything possible to not become it's victim.

With the average cost of immigration to Canadian taxpayers at $72,000 per immigrant, Canada (just like any other country) has the right to pick and choose whoever will fit the best, who will start to contribute to economy fastest with the least cost to Canada.

Canada needs immigrants now and likely forever - with retiring baby boomers and aging population in about 20 years the net population growth will come only from immigration. But Canada today needs very specific immigrants, those who in first place will ease extreme shortage of workers in skilled trades, immigrants who demonstrate the ability to find jobs fast and integrate to Canadian economy in no time.

It may be possible that federal government sooner or later will also start giving preference to younger applicants with children - just like Quebec is already doing it for years with good results. With huge oversupply of applicants there is a lot of room for cherry picking and I would be surprised if government would not take advantage of situation.

With over 220,000 foreign skilled workers and students coming to Canada each year now on temporary permits and with large percentage of them intending to get Canadian PR as they are already well established and integrated here there will be less and less visas available to those who apply for PR abroad and have no arranged employment. Competition for rapidly shrinking number of visas available to applicants in federal skilled workers class who don't have arranged employment is huge and processing times grow.

Canada practically moved already to employment sponsored immigration with implementation of simplified process back in September 2006 and with giving top processing priority to cases with PNP and arranged employment. Introduced 5 months ago immigration plan for 2008 reduced already number of visas available to federal skilled workers by over 30%, shifting quotas to PNP and CEC classes applications.

All signs were here for very long time and many realized quite fast that their only chance is finding arranged employment.

Now, within next few months, we'll see what else is coming with new powers likely given to the Minister.

IMHO, based on years of experience with Canadian immigration and on logical evaluation of what is happening and coming, only those with arranged employment plus maybe limited number of those without AE but with skills in occupations under pressure will have any chances to come to Canada in any near future.

There is no other option, at least I can't see any when taking into account backlog worth of about 8 years of visa quotas in economic classes.

sim2point4

Many thanks Andrew for explaining what is really going on.

JAJ

Shouldn't "March 27, 2008" read "February 27, 2008"

Ibraheem

obtaining arranged employment is not possible for majority of applicants, because you need a super supportive and super patient employer, we are not talking about simply finding a job, but an employer who is willing to offer a permanent job and willing to apply for AEO and wait like 3 months, then wait 6 more months (or even more) for the PR application and there is the risk or rejection in any of the steps, I don't think it makes sense to most employers who need people to start work ASAP, so simply many applicants who would be perfect successful candidates for many jobs, won't be able to make it if we only rely on the arranged employment option to let people in.

JAJ

Unfortunately, the "PR immediately" option is becoming increasingly unavailable for Canada bound migrants.

Unless you meet Quebec's criteria, or one of the PNPs that does not require job offer (maybe Nova Scotia?) - and you're willing to live in that province - it is now effectively impossible to plan to migrate to Canada on a skill basis with PR immediately.

In this respect, Canada has now become like the United States. The difference is that there are still fewer formalities involved in going to Canada (for example, British citizens do need a work permit but don't need a visa stamp in passport) and the pathway to permanent residence for those working in Canada is not as difficult as the way to a Green Card in the U.S.

If the risks and costs of being temporary are still not for you then you need to look elsewhere. Australia and New Zealand are options, or maybe somewhere else in Europe if you are willing to learn a new language.

JAJ

Reality is that applicant and employer need to be willing to use a work permit to bridge the gap.

immigrants

Should I ask you, which section included passing mark?
That mean can CIC required pre-February 27 2008 applicants need to
fulfil the new passing mark?

Andrew Miller

Yes Jeremy, you are correct - can you edit it?

I cannot edit the post anymore.

Thanks.

Andrew Miller

In Provinces where LMO process takes several months applicant and employer may also consider PNP with support letter for work permit if particular Province offers it in their PNP and processing is shorter than LMO process.

I'm not trying to say that possibilities are endless, they aren't - but there is always more than just one option.

It comes down to adaptability and resourcefulness - both characteristics badly needed for everyone who wants to immigrate to any country. If someone doesn't have what it takes then maybe s/he should reconsider moving plans.

And of course all current and potential applicants without AE and with qualifications and experience limited to the occupation that doesn't suffer any shortage of workers in Canada will be better off looking elsewhere.