Matrixvisa Issue No. 3/2015 CANADIAN IMMIGRATION POLICY UPDATE

Issue Highlights:
1. Federal Government Settles Court Case with the Client of Matrixvisa
2. Historical Case by Matrixvisa
3. Provincial Immigration News
4. Question and Answer
5. Crime in Canada at Record Lows


1. Federal Government Settles Court Case with the Client of Matrixvisa
 
Another leap of progress was made last week in the settlement of the Federal Court case of Horne Canada Inc v The Minister of Employment and Social Development. Federal Court Docket IMM-1121-15The case concerned a Labour Market Impact Assessment (LMIA) request submitted by Matrixvisa Inc on behalf of their client Horne Canada Inc. An officer of the Minister of Skills Development Canada (represented in the case by the Canadian Department of Justice) refused the LMIA request, without providing proper reasons. On 19 August 2015 The Canadian Department of Justice agreed with Matrixvisa Inc’s arguments made in the LMIA submission as well as the argument of the barrister (“advocate”) in favour of the Labour Market Impact Assessment (LMIA) request, that the officer did not assess all of the facts presented by Matrixvisa Inc in the LMIA request. In the Department of Justice’s decision it was said that the officer’s decision lacked transparency, intelligibility and justification – hallmarks of a democratic society.
 
Brief History
 
A skilled immigrant can only emigrate to Canada in the following cases:

  1. With a job offer supported by a Labour Market Impact Assessment (LMIA)
  2. With a job offer supported by a provincial certificate of nomination
  3. If a province makes available a list of occupations that are eligible for immigration without a job offer
  4. If an applicant scored high enough points on Express Entry (irrespective of the occupation)

 
A LMIA can only be issued if an officer of Service Canada has made an assessment on two major concepts:

  1. Concept of Labour Market:  This concept is based on 7 factors of the labour market (such as:  there must be a labour shortage, the wage must be the same wage as being paid to Canadians, the employer must have advertised for 28 days in an attempt to find a Canadian, etc.)
  2. Concept of Genuineness of Job Offer:  This concept is based on 4 factors(such as: the employer must be actively engaged in the industry, the employer must have the funds to pay the salary, etc.)

 
Matrixvisa Inc has funded litigation against Service Canada 3 times in the preceding 7 years about the concept the Genuineness of Job Offers. With the assistance of our barristers (“advocates”), Matrixvisa’s client won the first case, in two cases the Department of Justice agreed with our arguments, and another two matters were settled out of court to be redetermined by another officer.  This specific case (Horne Canada Inc v The Minister of Employment and Social Development. Federal Court DocketIMM-1121-15) is the third case we funded in Federal Court about the issue of Genuineness of a Job Offer in a LMIA request.
 

2. Historical Case by Matrixvisa
 
The concept of a LMIA has existed in Canadian law for about 40 years. In the Immigration Act 1978 it was known as an Employment Confirmation. In June 2002 the Immigration and Refugee Protection Act 2002 was promulgated and Employment Confirmation became known as a Labour Market Opinion.  In June 2014 this became known as a LMIA.  From the first concept of a LMIA in 1978 to the modern 2008 LMIA concept, the decision of an officer has never been sect aside by a Federal Court Judge. Officers have been refusing cases without any resistance from other immigration advisors for close to 30 years.
 
In 2008 a Federal Court Judge agreed with the arguments made by Matrixvisa Inc in the LMIA request and the judge sent the matter back for redetermination by another officer (Integrated Solution Services Inc v The Minster of Human Recourses and Social DevelopmentFederal Court Docket IMM-852-08 dated 11 Aug 2008). It was interesting that the Judge in this case did not even wait for the motion and arguments of the Department of Justice or the employer’s barrister (“advocate”), but instead just issued a court order to have the case redetermined after reviewing the submission made by Matrixvisa to Service Canada.
 
The South African Immigrant of this 2008 Federal Court case contacted Matrixvisa Inc last week and we were informed that she and her family are now Canadian Citizens.
 
The 2008 case is a historical case in Canada. Since then two more employers were successful in overturning their LMIA refusals (cases of Euro Rail and Fat Burger).
 

3. Provincial Immigration News
 
The Alberta Government closed this year’s Provincial Nominee Program on 28 August 2015, as the program received too many applications.  The program had about 5500 openings for 2015 but we believe that more than 10 000 applications were received. It is expected that the new scheme in January 2016 will be based on a points system, placing a large emphasis on job offers, age, language ability and Canadian education credentials.
 
The British Columbia government closed its doors on 1 September 2015 as there were also just too many applications. The only exceptions are:

  • Health Care Professionals (doctors, nurses, allied health professionals such as sonographer, laboratory technicians, Radiation technologist and occupational therapists) who must have a job offer from a public health region;
  • Entrepreneurs; and,
  • The North East Pilot Project, which is open for low skilled workers, but requires an employer to apply for a LMIA first and requires the employee to work for the employer for 9 months. 

 
4. Question and Answer
 
Question: I have been offered a job as a Barman in Saskatchewan (SK).  Do I need a Labour Market Impact Assessment (LMIA) and be working in SK for 6 months before I may apply for Permanent Residence, or can I be nominated under the Provincial Nominee Program and immigrate direct from my Country of Citizenship?
 
Answer:  A Food and beverage person such as a barman (NOC 6512) is in Skill Level C. The foreign national is not eligible for immigration in the Federal Skills Trades Class or the Federal Skilled Worker Class. The only option would be the Provincial Nominee Class. Although it is a designated trade (classified as an artisan or journeyman position in SK) the foreign national cannot apply for immigration direct, but must first come to SK under the authority of a LMIA and work for the SK employer for 6 months before they can be nominated for Permanent Residence. The SK government only publicly indicates the following 3 occupations as part of this Hospitality Sector Project Sub-Category:

  • Food/Beverage Server (NOC 6453)
  • Food Counter Attendant/Kitchen Helper (NOC 6641)
  • Housekeeping/Cleaning Staff (NOC 6661)

 
Through research it was determined that the occupation of Bartender (NOC6512) is actually part of this group, but is still not made available publicly for unknown reasons.
 


5. Crime in Canada at Record Lows
 
It is always strange to hear when a petty crime reaches the television news and threeexcellent examples will be handy to illustrate the level of crime in Canada.  It should be noted that I observed these examples personally:

  • On the Canada Broadcasting Corporation’s national TV channel it was reported that a luxury portable toilet was stolen in the Okanagan Valley (located in British Columbia)
  • A few years ago it was reported on national television that a man was charged in Oshawa (just west of Toronto) with having a child on his lap while he was driving. 
  • I watched a TV news channel, CP News (See www.cp24.ca) when I lived in Toronto and it was reported that a handbag was stolen on Kenney Rd.

 
It is obvious: the crime is so low these “crimes” and “offences” are being reported on national news.
 
On 2 February 2010 it was reported in the Toronto Star that the city’s crime dropped by 33 % from 1998 to 2008 (a 10 year period)!
 
It was reported in Juristat (Article Vol 29 No 3, July 2009) that crime in Canada fell to its lowest level in 30 years.
 
In a report of the Fraser Institute it was reported that overall, crime dropped by 15% from 1999 to 2007. The same report developed a Crime Severity Index (CSI) that measures the seriousness of the crime. The CSI dropped by 21 % over the same 8 year period. This seems plausible as many of the reported crimes in Canada are disrupting the peace and loitering (sitting around).
 
Many other statistics can be quoted, but this is a real miracle.  I am just thankful that I am Canadian.
 

Regards, 
Cobus (Jacobus Kriek)
Member in Good Standing of the ICCRC (http://www.iccrc-crcic.ca)