ARCHIVED – Operational Bulletin 161 – November 5, 2009 (Expired)

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

Monitoring terms and conditions on entrepreneurs selected under the Immigration Act, 1976 and issued a visa after the coming into force of the Immigration and Refugee Protection Act (IRPA)

This Operational Bulletin has expired.

Purpose

This bulletin instructs officers to resume the monitoring of Entrepreneurs selected under the Immigration Act, 1976 and issued a visa after the coming into force of the IRPA, subject to the terms and conditions outlined in section 23.1 of the Immigration Regulations (1978). Officers are also instructed to prepare A44 reports in cases of non-compliance with the terms and conditions of the former regulations, where warranted. Minister’s delegates may also resume referring reports to the Immigration Division (ID) of the Immigration and Refugee Board (IRB). It also specifies that all Quebec-selected entrepreneurs whose permanent resident visa was issued on or after June 28, 2002, are subject to the conditions of section 98 of the Immigration and Refugee Protection Regulations (IRPR).

Background

In 2008, the ID of the IRB made a series of decisions that were upheld at the Immigration Appeal Division (IAD). These decisions concerned entrepreneurs selected under the Immigration Act, 1976 but issued visas under the IRPA, or, entrepreneurs selected under the transitional provisions of the IRPA, specifically subsection R361(3) or R361(5.1) (“transitional class entrepreneurs”). The decisions were to the effect that these entrepreneurs should be subject to the conditions of section 98 of the IRPR, rather than section 23.1 of the Immigration Regulations, 1978.

Following these IRB decisions, provisional instructions were issued to Regional Program Advisors (RPAs).  These instructions stated that the monitoring of terms and conditions should continue, and specified that terms and conditions should be cancelled in cases where they had been met. More significantly, RPAs were instructed to hold in abeyance A44 reports on entrepreneurs who had clearly not met the terms and conditions imposed pursuant to section 23.1 of the former regulations, until questions about the applicability of this section were resolved.

A recent Federal Court of Canada (FCC) decision (Kastriot GJOKA v. M.C.I., [2009] F.C. 943/ Anila GJOKA v. M.C.I., [2009] FC 944) has upheld the intent of the subsections 361(3) and (5.1) and section 363 of the IRPR. The FCC decision supports CIC’s position that the transitional provisions provide for the continued application of the entrepreneur class conditions set out in section 23.1 of the former regulations for entrepreneurs selected under the former regulations, but issued a visa on or after June 28, 2002.

Monitoring

Officers are instructed to continue monitoring and processing applications for the removal of terms and conditions from entrepreneurs selected pursuant to subsection 361(3) or (5.1) of the IRPR. If warranted, officers should now proceed with A44 reports, detailing the allegations of non-compliance with subsection 23.1 of the former regulations. Where appropriate the Minister's delegate may refer the entrepreneur to an admissibility hearing before the ID.

Officers should consult the CAIPS notes if it is not clear which conditions apply to the entrepreneur. The notes should clearly indicate under which regulations the entrepreneur was selected. The coding of the confirmation of permanent residence (COPR) IMM 5292B (06-2004) should also indicate which regulations apply. For entrepreneurs and their dependants selected under the former regulations, code 70, 72 or 73 will be printed automatically on the COPR. For entrepreneurs selected under the IRPR, the corresponding codes are 74, 75, or 76.

Where coding errors exist on the COPR, or where the entrepreneur was asked to sign an acknowledgment of the incorrect set of terms and conditions or conditions, they should be notified of this error as soon as possible and informed of the correct conditions to be met. Copies of the counselling and monitoring guides IMM 5348 (06-2007) and IMM 5479 (06-2007) are available.

Exception – Quebec Region Case Processing

Quebec-selected entrepreneurs were not covered by the transitional provisions of IRPA. In 2006, a decision of the ID (Kaspar) found that Quebec-selected entrepreneurs issued a visa on or after June 28, 2002, are subject to section 98 conditions of IRPA, regardless of the date of CSQ issuance. This decision was not appealed. Therefore, all Quebec-selected entrepreneurs whose permanent resident visa was issued on or after June 28, 2002, are subject to the conditions of section 98 of the IRPR. They cannot be the subject of an A44 report for failing to comply with the terms and conditions set out in section  23.1 of the former regulations. Further instructions regarding Quebec-selected entrepreneurs subject to Quebec conditions will be forthcoming.

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