March 2015

I have this great client.  He works in a restaurant at one of Ottawa’s cultural landmarks.  He brings me lunch whenever he has an appointment – really awesome lunches (I’m sure you’re already jealous).  He came here from India to study in the Culinary Management program at Algonquin College.  They obviously trained him well.

So why was this cook not a cook?

 

Because Citizenship and Immigration Canada decided the letters of employment provided with his application “did not provide sufficient evidence that you performed a substantial number of the main duties as set out in the occupational description of the NOC, including all of the essential duties.”  They concluded, “I am not satisfied there is sufficient evidence that you performed the actions described in the lead statement for the occupation or that you performed a substantial number of the main duties of the occupation as described of the NOC 6322 – Cook.”

He’s a cook.  He chops vegetables, prepares sauces, supervises employees, and keeps the kitchen spotlessly clean.  How complicated could this be?  As part of his application, I had included a letter from the Human Resources department which specified his job duties, his rate of pay, and the fact that his was a unionized position.  The letter of employment ran to almost two pages.  His position was supported by a Labour Market Opinion, which was included.  I also included three years of Canadian tax returns, his work permit, and his diploma and transcripts from Algonquin College.  Yet, it wasn’t enough.

In January, the Toronto Star obtained internal government “quality management” reviews.  These reviews showed a high error rate in immigration processing.  The article quoted the president of the Canada Employment and Immigration Union, who said that the department has increasingly hired casual employees to replace well-trained permanent staff.  Perhaps my client’s application had been reviewed by one of these poorly trained casual staff.

My client wasn’t willing to give up, especially not after the years he spent studying and working in Canada.  He’d built a life here for himself.  He could have gone anywhere in the world to work, but had chosen Canada and wanted to fight to be able to stay here. 

We decided on a two stage approach.  First, in order to preserve his rights to a judicial review by the Federal Court, I filed an application with the Court within the required 15 days of the negative decision being made.

Next, I wrote a letter to the Manager of the Case Processing Centre that rejected his application. In my correspondence, enclosed a letter from his Executive Chef and even included photos of my client with both the Executive Chef and the Prime Minster of Canada.  They had prepared a banquet for the Prime Minster and 500 members of his political party, and a photo was taken of the staff with the Prime Minister on the grounds of 24 Sussex.  In my letter, I asked that the decision to reject his application for permanent residence be reconsidered. 

I explained that I’d filed the Application for Leave and for Judicial Review, and that my legal submissions were due in 30 days.  I asked for a response to my request for reconsideration within 15 days, so that I would have time to prepare and file my legal submissions with the court if required.

15 days went by… and nothing. I went about preparing the submissions for the court, and because of the tight timeline, called in another lawyer to assist me.

The day before the legal submissions were due, when materials were almost ready for the courier, I received a telephone call from the Department of Justice.  Their client, Citizenship and Immigration Canada, had agreed to reconsider the denial of the client’s application.

The very next day, a positive decision was made on the client’s file.  He has since paid his Right of Permanent Residence Fee and has completed his immigration medical examination.  We presume all will go smoothly from here.

A win?  Yes, in the terms of him becoming a permanent resident, and hopefully, eventually a citizen.  But it cost a lot for this win.  You can only imagine the stress he was under, and the difficulty I had trying to get legal submissions prepared in only two weeks.  It has cost the client thousands of dollars of legal fees to get to this stage.

So then, it is a cautionary tale, but one that deserved to be told.  Many immigration practitioners have argued that there needs to be an “immigration ombudsperson” to oversee Citizenship and Immigration Canada. Applicants, whose only recourse when faced with a mistake by Citizenship and Immigration Canada is to launch a very expensive appeal to the courts, far too often assume this burden.