BC PNP Discussion

CASE STUDY – BC PNP

Wong, Soo Fun was issued a nomination under the BC PNP Entrepreneur program; having established a restaurant in British Columbia and has met all of the terms of their Performance Agreement. The applicant has used the assistance of an RCIC to represent them on the applications to both Provincial and Federal governments. Now that the nomination has been issued, the application for permanent residence has been submitted and is in process at the Federal level. General assessment for eligibility has been completed and medicals have been undertaken. The case is currently undergoing security and background checks. Therefore, the PR visas have not, as yet, been issued.

In the course of the nominee application, Wong was initially issued a letter of support to secure a business work permit. That permit was issued in 2016 and was valid for 2 years. Prior to the expiration of that permit, the applicant’s representative applied to extend their work permit. First attempt was refused as the representative forgot to include the nomination certificate. On the second attempt the representative tried to apply for a Bridging Work Permit to restore the status of the applicant. The applicant was issued a refusal letter indicating that they no longer have valid status in Canada and must leave. The letter was issued on May 1 2018 whereas the applicant was not advised until June 20 2018.

Questions:
1.) Why was the Bridging Work Permit refused in this specific case?
2.) What must the applicant do now and why?
3.) Are there any options open to the applicant to restore their temporary status in Canada while they await their PR visa issuance? If so what are those suggestions?
4.) Will the loss of legal status in Canada impact their Provincial nomination? Explain.
5.) Will the loss of legal status in Canada impact their permanent resident application? Explain.
6.) Based on the Code of Professional Ethics what breaches were undertaken by the representative?

Response - merged commentary following conversation between: Dawn Moore (presenter of issued) Holly Gracey (participant) and Tina Ryan (participant)

1.) A bridging work permit is only issued to those applicants that have valid status in Canada at the time of application. As the applicant’s initial status had expired at the time of that application, it was refused for not meeting those parameters.

2.) The applicant has been issued a departure order and must therefore remove themselves from Canada before this becomes enforceable (becoming a deportation order).

3.) The applicant cannot at this point apply to restore their status from within Canada. They may wish to apply to the Province with an explanation as to what has occurred with their current temporary status, request a new nomination letter to support a new work permit and apply for that permit outside of Canada. Suggest that they fully disclose all prior applications, the representative’s errors on the visa extension and restoration applications in those submissions and the results of the same.

4.) While BC indicates that it is a requirement for a business nominee applicant to have maintained legal status prior to and during the nominee process, there is not an obvious policy which would address the lost of status after nomination but before PR issuance.

5.) As the application is presently in the process of being assessed for inadmissibility, the applicant wants to ensure that they are not in contravention of any aspect of the IRPA. Most specifically:
IRPA 40 Misrepresentation: thus full disclosure of their status and the issues that led up to that would be important on any current or new submissions.

IRPA 41 Non-compliance with the Act: thus they need to remove themselves from Canada before the departure order becomes a deportation order. Else they may find themselves inadmissible which may further jeopardize any current or future applications to come to Canada.

6.) The RCIC made both errors and omissions on their submission to extend the work permit applications. First was the omission of the nomination certificate which caused the initial refusal. Second was attempting to apply for a BOWP as part of the restoration process as these may not be issued to someone who does not have legal status at the time of application. The RCIC therefore exhibited incompetent knowledge and judgement coupled with a lack of quality of service and timely advice to the client as to the outcome of the final application.

Section 3.1 The RCIC has a duty of good faith to maintain their competency and ensure timely resolution to matters and guidance to the client.

Section 5 The RCIC has an obligation to ensure that they are knowledgeable and competent in the areas of immigration law that they are representing on and when they are not, they need to refer the case to someone who is or co-counsel with the same.

Section 6 The RCIC has an obligation to maintain quality service and ensure that the delivery of client documents and information is done correctly and in a timely manner.

Section 7 The RCIC has an obligation to be honest with the client and be upfront with what they have done incorrectly and how they would rectify the matter.

Section 13 The RCIC has an obligation to recognize when they have committed an error or omission which may be damaging to the client and act accordingly. They should have promptly informed the client what has occurred and suggested that the client may wish to seek legal counsel in respect to their rights. As this situation has the potential to be quite damaging to the client, the RCIC should inform the E and O insurer and also advise the ICCRC that the insurer has been informed on a matter. Lastly, the RCIC needs to really consider if they should not in fact withdraw from continued representation of the case. In that event actions as defined in article 11 need to be considered:

Section 11.1.1 iv: withdrawal based in incompetence of the RCIC
-deliver all documents, files and property to the client
-provide all connected information to the case(s) to the client
-account for all funds received, held or previously held and provide a refund if applicable.
-render an account for any outstanding fees or disbursements if applicable
-co-operate with the successor; meaning that if provided with evidence that a new authorized representative has been retained that they provide all information to that representative
-notify the respective government offices within 10 days that they are no longer representing the client.

Response DN

(The team have) covered a lot of good points and in full relevant to the Code of Professional Ethics in this case. I would like to just add to (those) responses, most especially 2 and 3.

2.) The applicant should leave Canada as soon as possible within 30 days from when the departure order was issued and reapply for the work permit immediately. He should also request for ATIP to verify the information put into the IRCC notes. This will indicate which inadmissibility code (s) apply to him and details of the refused work permits.
He definitely should cancel appointment with the representative immediately as well. He has the option of contacting a lawyer and request for a judicial review through the Federal Court of Canada if he wants to bring this a step further.

3.) If the applicant is deemed inadmissible pursuant to A41 due working without a valid work permit and he stopped working the day he found out about the refused work permit and removal order, typically he is no longer in the state of non-compliance. When he leaves Canada and reapplies for a new work permit pursuant to acts and regulations he is complying and correcting his situation. He will have the opportunity to explain on his work permit application what occurred and check off yes to - “Have you ever remained beyond the validity of your status, attended school without authorization or worked without authorization in Canada?” Along with his new work permit submission he should include a statutory declaration signed by him, explaining the reason he remained in Canada beyond the validity date of his initial work permit and include all supporting documents, as Holly mentioned, full disclosure of their status and the issues that led up to that would be important on any current or new submissions.
He may want to apply for a TRP simultaneously with the work permit as well in case he is deemed inadmissible as to put all chances on his side of having the work permit approved.

4.) & 5.) The loss of legal temporary status in Canada shouldn’t have an impact on his PNP and permanent residence if he can prove that he is not inadmissible. But he needs to demonstrate this to authorities. I believe it will depend on what he is trying to do to correct the situation, such as reapplying for the work permit from abroad. If a work permit is issued to him the change of circumstances should have a positive affect towards his permanent residence application. He should submit a statutory declaration to join his PR application so the reviewing officer is aware of his current situation and to avoid misrepresentation.