您想知道加拿大新移民法是如何修改的吗？您想拥有一张赴加拿大发展的通行证吗？您想要体会加国生活的乐趣吗？

　　加拿大瑞潮集团北京总部02月07日，晚7：00，召开《加拿大发展动态研讨会》，同时邀加拿大前政府保守党国会议员，资深移民法大律师大卫·托马斯做了精辟分析。

　　以下是大卫·托马斯大律师在研讨会上所做的发言原稿。

　　SUMMARIZE OF CANADA'S NEW IMMIGRATION & REFUGEE PROTECTION ACT

　　Earlier this year, Canada's Minister of Citizenship & Immigration released the draft text of the new IMMIGRATION AND REFUGEE PROTECTION ACT. The draft text is referred to as "Bill C-31". This new legislation is designed to replace the existing Immigration Act, which after some 24 years, has a framework that is quite out-of-date.

　　The new Immigration and Refugee Protection Act has not yet been proclaimed into law. It must go through a process of consultation and parliamentary debate which will take many months. In addition, there have already been significant objections to some of the provisions by the Canadian Bar Association and other groups. As such, there may be significant changes to the draft text in Bill C-31 before the new act is proclaimed and comes into effect.

　　Notwithstanding there may be changes forthcoming, Bill C-31 represents a significant new direction in Canadian immigration law and policy. Therefore, it is not too early to start studying the proposed changes and the implications they have for our clients. This paper will set out a summary of the significant changes that will affect economic migrants to Canada.

　　PHYSICAL PRESENCE IN CANADA REQUIREMENT FOR PERMANENT RESIDENTS

　　Under current immigration law, permanent residents are subject to the "183-day rule" regarding absence from Canada. Presently, if an immigrant remains outside of Canada for more than 183 days in any 12 month period, upon returning to Canada they have the onus to establish they did not remain outside of Canada with the intention to abandon Canada as their place of permanent residence. The issue has always been one of "intention" and the permanent resident's ability to provide evidence as to that intention. Further, a permanent resident was also able to apply for a "Returning Resident Permit" if there were acceptable reasons for the long absence from Canada. Under our present system, Canadian permanent resident status is not lost automatically and does not lapse if one remains outside of Canada for an extended period of time.

　　Bill C-31 contemplates a radically different approach. The new immigration law will require that permanent residents are physically present in Canada for 720 days in a given 5 year period. If the test is not met, the permanent resident loses their status. In other words, for new permanent residents, they will be required to spend at least two years being physically present in Canada in the first five years. Permanent residents will be issued a "PR Card" or such document which proves their permanent residence status is still valid and intact. They will need this PR Card in order to board an aircraft abroad destined for Canada. The PR Card will be valid for 5 years. In order for it to be renewed, the permanent resident will have to prove that they have been physically present in Canada for two of the previous five years.

　　Bill C-31 contemplates some exceptions for the test of "physical presence". Permanent residents who are accompanying their spouse or parent who is a Canadian citizen will be exempt. The physical presence test will also not apply to permanent residents (and their families) who are employed abroad full-time for a Canadian business or government agency.

　　When the new Immigration and Refugee Protection Act comes into effect, there will be serious implications for existing permanent residents who are abroad. Those who have valid Returning Resident Permits will be okay as long as they return prior to the expiry of the RRP. If there is no RRP and the permanent resident has been outside of Canada for less than 183, there will be no problem if they return to Canada within 9 months after the new act comes into force.

　　If the permanent resident is abroad at the time the new act comes into force, and if they don't have an RRP and have been away for more than 183 days, they will have to apply abroad for a "Facilitation Document". The Facilitation Document will allow them one return trip to Canada where, presumably if they meet the requirements, they will be issued their PR Card. However, if the application for the Facilitation Document is refused, they would lose their permanent resident status. There would be limited avenues to appeal a negative decision.

　　The new rules for permanent residents abroad represent a significant change to our existing law. Lawyers and consultants will want to ensure that existing and past clients are aware of the coming changes and plan their affairs accordingly.

　　PROPOSED CHANGES TO THE BUSINESS CATEGORIES

　　Bill C-31 is the proposed text for the new Immigration and Refugee Protection Act. As now, there will be Regulations to the new act which will contain the details for the selection criteria for economic immigrants. In April, the Minister of Citizenship & Immigration released a draft of proposed a number of changes to the requirements for business immigrants.

　　Some of the suggested changes for Entrepreneur Category immigrants are:

　　- Entrepreneurs will have a net worth requirement of C$400,000 - Entrepreneurs may be required to post a C$150,000 bond to ensure compliance with terms and conditions - Past business experience must be in a situation where they held majority ownership of shares in their business - Past business experience requires applicant to have managed and supervised at least a minimum number of full time jobs - Past business of Entrepreneur applicant must show - C$100,000 profit per year - net assets of C$250,000 - gross sales of C$1,000,000 per annum - 5 full-time employees

　　In order to comply with the cancellation of terms and conditions in Canada, it is suggested that the Entrepreneur's Canadian business must: generate C$500,000 in annual sales produce C$50,000 in annual profit be owned at least 50% by the Entrepreneur (ie. not permitted to own minority of shares)

　　It is also proposed that Entrepreneurs could opt for the Investor Category eligible investment after landing if they felt they could not otherwise comply with their terms and conditions.

　　PROPOSED CHANGES TO THE INDEPENDENT CATEGORY

　　There are some broad suggestions as to how the selection of skilled workers will change under the new act. Under the current system, the starting point is determining whether or not a candidate has training and experience in an occupation currently on the General Occupations List. The list refers to occupations further defined in the National Occupation Classification (NOC).

　　The government is now suggesting that the new skilled worker selection criteria will focus far less on the occupations. Instead of requiring experience in an occupation on a list, other factors will be considered and given more weight.

　　The Education factor will be more important and more weight will be given to the higher levels of education attainment.

　　Ability in one of Canada\'s official languages will be given more weight. There may also be the introduction of standardized language testing.

　　There may still be an occupation list and HRDC validations that would give an applicant more points. There are also proposals to give points objectively for an applicant's propensity to adapt well to life in Canada.

　　The foregoing proposals suggest a radically different approach, but perhaps a more realistic approach in today's world. In the end, immigration officers want to select skilled workers who will succeed in Canada and make a contribution. The new selection criteria will try to do that more effectively than the current system.

　　PROPOSED CHANGE TO DEFINITION OF DEPENDENT CHILD

　　It is proposed to raise the age of a dependent child from 19 to include a child under the age of 22. The "never married" requirement will also be dropped. As long as the child is not in a "conjugal relationship" at the time of the immigration application, they will be eligible.

　　It would appear this will attempt to clarify the existing grey areas in determining whether a child over 19 has been continuously enrolled in post-secondary studies. Of course, this will exclude a number of accompanying dependents who would, under current legislation, be able to come to Canada with their parents.

　　Right of Landing Fees will be payable by only those 22 years and older.

　　PROPOSED CHANGES TO THE FAMILY CATEGORY

　　Significant changes have been proposed under the Family Class, most of which will be welcomed by our existing clients.

　　Sponsorship of Parents

　　Under the current rules, an immigrant who wants to sponsor their parents' application for immigration must show that they have a certain income in Canada. In other words, regardless of the net worth of the sponsor or the net worth of the parents, unless the sponsor has significant "income" in Canada, they are unable to sponsor their parents' application.

　　Under the proposed changes, it will be possible to arrange a "bank guarantee" to secure the sponsor's undertaking. The details have not been confirmed yet. Likely the sponsor would arrange for a letter of credit, or perhaps make a fixed deposit with a financial institution for the duration of the undertaking. Many of our clients will welcome these changes, allowing new immigrants to arrange to sponsor their parents shortly after arriving in Canada.

　　A new fee structure has also been proposed for Family Class sponsorships. At present, when the application is submitted to CPC Mississauga, the full fees (ie.$500) for each sponsored relative must be paid. If the sponsors application is rejected for failure to meet the financial test, all of the fees paid are non-refundable. Under the proposed changes, only a small amount will be paid when the undertaking is sent to CPC Mississauga, something like $50 only. Only if the sponsorship undertaking is accepted, then the balance of the normal fee (ie.$450) would be payable.

　　There will also be less documentation required to prove the sponsor's income. At present, numerous documents are required to complete the application, often when it is obvious the sponsor can surpass the Low Income Cut-Off (LICO) amount. Under the proposed changes, certain applicants will have to show only their income tax return from the previous year.

　　Spousal Applications

　　It will become a little easier for applications to sponsor a spouse inside Canada. Firstly, it will no longer be required to demonstrate "humanitarian and compassionate" reasons for submitting the application inside Canada.

　　The definition of "spspouse" will be expanded under the proposals. It will also include common-law relationships and same-sex relationships. Generally, the test will be that the couple must have co-habitated for at least one year previously in a conjugal relationship.

　　The proposals also suggest a relaxation of medical inadmissibility in certain circumstances. At present, if a family member has a medical condition that might cause an excessive demand on the health care delivery services of Canada, the person will be inadmissible to Canada as an immigrant. In many cases, a Minister's Permit is issued for such a family member anyway. Under the proposed changes, spouses and minor children will not be medically inadmissible for having a condition likely to cause an excessive demand on the health care delivery services of Canada.

　　CONCLUSIONS

　　Over the coming months, there will be vigorous debate about the Minister's proposals. Some of the proposals will survive, other will surely change.

　　One thing is clear, however. Parliament knows the current Immigration Act must change. In the summer of 1999, derelict boats from Fujian Province in China arrived on the shores of British Columbia carrying approximately 600 illegal migrants. After being detained, virtually all of the migrants made refugee claims. Some were accepted, but a significant number were refused and there have been numerous deportations. The main result of all that was the resentment from a majority of Canadians who perceived the whole affair as people trafficking. There seemed to be a complete inability for the government to act prudently because of the archaic and out-of-date Immigration Act. There is now big pressure on the Minister to bring in a new act to deal with people smuggling and other issues. We will do our best to update you with proposed amendments until then.