Rejected CEC application - basis for appeal?

[Nasdi]

sorry to hear that man best of luck to you

i got a quick question, why is it 24 months ? i was always under hte impression that it was only 12 months....

 

[MrB]

I think that the claim here is - and dont get me wrong, I think this is a bit far out there and I dont agree - that the PA did NOT infact hold a permit. And thats looking at it in the most blunt manner possible. He was authorized to work, but did not hold a permit any longer. While you did not violate any rules, your experience would not be counted as there was not permit (putting you in limbo while you wait). I think this actually sets a precedent in my book, as all those hoping to stay on implied status so they can apply for CEC and BOWP, may be called into question.

Anyway, this is just my thinking...in VO's point of view. I dont necessarily agree, as the regulations dont specify this very clearly. I dont believe you will have enough to appeal. Probably a better shot with reapplying. Just my opinion.

I'm sorry no disrespect to you, if that's what you think, you're wrong and so is the V.O that made the decision. This is not about opinion or about discretion, it's about the rule of law. The V.O erred in the interpretation and application of the law and the decision to use discretionary powers over the law violates the principles of natural justice.

Like I stated before and would state again,

1/According to section 183(5)(a)(b) of the IRPR,

If a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

(a) the day on which a decision is made, if the application is refused; or
(b) the end of the new period authorized for their stay, if the application is allowed.

2/Also according to section 24. of OP 11

If a temporary resident applies for renewal of their work or study permit and their permit expires
before a decision is made, R186(u) and R189 (the right to continue working or studying under the
same conditions pending a determination of their application for renewal) apply only as long as
the person remains in Canada.

Now to the applicant, I wish you'll heed to my advice or at least consult with an immigration consultant or lawyer concerning this matter. This is a $1000+ consultation/analysis of your case I'm giving you. The decision on your case can easily be turned without a court case.

The visa officer clearly made a mistake here and I'll advice that you take it as far as you can using the right legal help. It is true that once you called the call centre to inquire about the status of your work permit and you were told about the negative decision over the phone, your implied status had ended. But the V.O did not consider any implied status at all, not even a week! this is a violation of the Act, Regulation and the Operational Manuals. Don't be afraid of challenging the decision, it would not have any adverse effect on future applications and it just allows for better quality control.

 

[YoungJC]

I'm sorry no disrespect to you, if that's what you think, you're wrong and so is the V.O that made the decision. This is not about opinion or about discretion, it's about the rule of law. The V.O erred in the interpretation and application of the law and the decision to use discretionary powers over the law violates the principles of natural justice.

Like I stated before and would state again,

1/According to section 183(5)(a)(b) of the IRPR,

If a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

(a) the day on which a decision is made, if the application is refused; or
(b) the end of the new period authorized for their stay, if the application is allowed.

2/Also according to section 24. of OP 11

If a temporary resident applies for renewal of their work or study permit and their permit expires
before a decision is made, R186(u) and R189 (the right to continue working or studying under the
same conditions pending a determination of their application for renewal) apply only as long as
the person remains in Canada.

Now to the applicant, I wish you'll heed to my advice or at least consult with an immigration consultant or lawyer considering this matter. This is a $1000+ consultation/analysis of your case I'm giving you. The decision on your case can easily be turned without a court case.

The visa officer clearly made a mistake here and I'll advice that you take it as far as you can using the right legal help. It is true that once you called the call centre to inquire about the status of your work permit and you were told about the negative decision over the phone, your implied status had ended. But the V.O did not consider any implied status at all, not even a week! this is a violation of the Act, Regulation and the Operational Manuals. Don't be afraid of challenging the decision, it would not have any adverse effect on future applications and it just allows for better quality control.

I 100% agree with MRB. The VO has discrestion, but he has to use it with regards to the law. You should definitely look into appealing the decision.

 

[kaanva]

I second Mr B, what he says is right. There are times when Cic time lines were extended from 45 days to 100 days after applying for extension and Applicants have continued working maintaining the same Status Quo which they were allowed to do as per rules. Perhaps you can send them Salary slips for those months. I personally know dozen people who have got their PR's having so called implied status in their Work period. I don't think everything Cic or a VO does have to be always right.It is strange that an Application is rejected with out second thought, citing this reason..T o my knowledge this is 1st time such sort of rejection has happened. VO should have had some sense..and would have taken historic data before rejecting.. Now for all those people who come up supporting CIC sating that PR is a not one's right and it is privilege.. blah..blah..blah... For me it is service for which I am paying and I have all rights to expect better service for what I pay...Once I get a PR then I agree, that it may not be Right but a Privilege and one would have to live in accordance with in the limitations of privilege that one has got...But until then it is service for which I payed that's it..and CIC needs more transparency and effectiveness.

 

[CEC2013]

I'm sorry no disrespect to you, if that's what you think, you're wrong and so is the V.O that made the decision. This is not about opinion or about discretion, it's about the rule of law. The V.O erred in the interpretation and application of the law and the decision to use discretionary powers over the law violates the principles of natural justice.

None taken. But I think you read my post wrong...I wasnt arguing for the decision, I was merely pointing out a possible rationale. I certainly dont agree with this. And who would in their right mind make it harder for themself. Maybe tomorrow you are in the same situation, and advocating for that would be plain ignorance.

While I agree with everything said in regards to law and the fact that the PA should appeal, I disagree with one minor fact...discretion. You made it sound as though this is insignificant. I beg the differ. If the law is vague and unclear, and the Officer has discretion, then how do you expect to argue discretion vs law. If it is indeed vague, and the officer acted within his discretion, then your argument is moot. This is not to say that you shouldnt contest the decision. All I'm arguing is that discretion plays an important role and it should not be taken likely.

But I do strongly support what you said about taking this up with CIC and not being afraid to challenge the decision. It is your right!

 

[CEC2013]

I 100% agree with MRB. The VO has discrestion, but he has to use it with regards to the law. You should definitely look into appealing the decision.

Agreed and no argument there. As long as the VO is using their discetion within the confines of law...its fair.

 

[CEC2013]

sorry to hear that man best of luck to you

i got a quick question, why is it 24 months ? i was always under hte impression that it was only 12 months....

Pre January 2013 requirement... 12 months started as of this year. Applicants were required to have 24 months prior to the new regulations.

 

[MrB]

None taken. But I think you read my post wrong...I wasnt arguing for the decision, I was merely pointing out a possible rationale. I certainly dont agree with this. And who would in their right mind make it harder for themself. Maybe tomorrow you are in the same situation, and advocating for that would be plain ignorance.

While I agree with everything said in regards to law and the fact that the PA should appeal, I disagree with one minor fact...discretion. You made it sound as though this is insignificant. I beg the differ. If the law is vague and unclear, and the Officer has discretion, then how do you expect to argue discretion vs law. If it is indeed vague, and the officer acted within his discretion, then your argument is moot. This is not to say that you shouldnt contest the decision. All I'm arguing is that discretion plays an important role and it should not be taken likely.

But I do strongly support what you said about taking this up with CIC and not being afraid to challenge the decision. It is your right!

Discretion has no power when the law is very clear on an issue, I think this is were you get things wrong. The Immigration Refugee Protection is very clear on implied status, therefore there's absolutely nothing vague in this case. It is evident in the reason the V.O gave for the refusal that he did not credit anytime at all to the applicant for implied status, he pretty much ignored it. That's an omission of the law, I suggest you read the direct quotes from the IRPR in my previous posts. I think re-application in this case should be the applicant's last option i.e after all other means have been exhausted. (e.g an administrative review by an independent or superior officer or the same officer admitting his error)

 

[CEC2013]

Discretion has no power when the law is very clear on an issue, I think this is were you get things wrong. The Immigration Refugee Protection is very clear on implied status, therefore there's absolutely nothing vague in this case. It is evident in the reason the V.O gave for the refusal that he did not credit anytime at all to the applicant for implied status, he pretty much ignored it. That's an omission of the law, I suggest you read the direct quotes from the IRPR in my previous posts. I think re-application in this case should be the applicant's last option i.e after all other means have been exhausted. (e.g an administrative review by an independent or superior officer or the same officer admitting his error)

Ok, we're getting nowhere with this. I think everyone is in agreement that the PA should appeal the decision. If for nothing more than the clarification from the officer. I would also suggest GCMS notes to see if there are any additional notes on reasoning.

MrB, do you know of any limitations on time to appeal? i.e. rejected in NOV, wait for GCMS till DEC, prep appeal and send in JAN ... it would be 2-3 months after the fact. You know of any issues to wait until you have more facts or does the appeal need to be lodged shortly after decision?

 

[jes_ON]

Thanks for the responses so far. To answer all of your questions:

1) I was on implied status for that long due to an error on their side (their meaning the people dealing with work permits etc...) I ended up having to phone the CIC helpdesk number and asked what the situation was as I had applied for an extension to my work permit in August 2012 and by November I still hadn't heard anything. I was then told over the phone a letter had been posted to me a few weeks previous. I never received this letter and was then told it was sent by regular mail which i find quite strange for such an important letter! It was then decided over the phone that my implied status ended there and then and I had to go tell my boss I needed to finish work that day.

2) I was looking to extend my work permit but stay in the say job with the same employer. I had been working for that company for 2 years.

Quick question - you make no mention of an LMO. Did your employer apply for an LMO?

 

[anonimo]

Unfortunately I think the VO was right. During implied status you do have the valid working status but you don't have the valid wp. They actually want u to have a valid WP, NOT JUST WORKING STATUS. Work permit is not the same as working status.

As per 87.3./1/c of IRPR "the foreign national must have had temporary resident status during their period of work experience and any period of full-time study or training." During implied status, you don't have the temp.res.status used in this context. You have the right to continue working under the same conditions but your status is pending. It is 'in the air'. If basically don't have it. You get PARTIAL benefits during this phase (continue work under same conditions) but you also don't have health insurance in some provinces and I don't think you can use this period to gain any benefits later. This is not the period authorised to work (that they talk about in this context) but it is a period between 2 periods which only gives you SOME rights under certain conditions (that u submitted app for extension and same employer..yada yada.
I might be wrong but I don't think you can use the period between 2 work permits to gain any rights, this is basically just a bridge between those 2 periods.

Working status is not the same as work permit. Implied status period gives you the benefits of a working status but NOT of the work permit.

 

[YoungJC]

Unfortunately I think the VO was right. During implied status you do have the valid working status but you don't have the valid wp. They actually want u to have a valid WP, NOT JUST WORKING STATUS. Work permit is not the same as working status.

As per 87.3./1/c of IRPR "the foreign national must have had temporary resident status during their period of work experience and any period of full-time study or training." During implied status, you don't have the temp.res.status used in this context. You have the right to continue working under the same conditions but your status is pending. It is 'in the air'. If basically don't have it. You get PARTIAL benefits during this phase (continue work under same conditions) but you also don't have health insurance in some provinces and I don't think you can use this period to gain any benefits later. This is not the period authorised to work (that they talk about in this context) but it is a period between 2 periods which only gives you SOME rights under certain conditions (that u submitted app for extension and same employer..yada yada.
I might be wrong but I don't think you can use the period between 2 work permits to gain any rights, this is basically just a bridge between those 2 periods.

Working status is not the same as work permit. Implied status period gives you the benefits of a working status but NOT of the work permit.

Please don't give wrong information, especially if you are not sure about your answer or cannot back it up with cic documentation.
When you are on implied status, your temp residence status is extended from the date your initial permit expires until they contact you regarding the decision to your application. The reference has been posted a couple times

 

[Suddenly Susan]

I think anonimo might be right. I posted several questions about using implied status between 2 periods to apply for bowp (you can check my previous postings) and eventually called the call center. They told me NO they won't consider it because my work permit expired and the ob 485-a says you need to have a valid work permit. I did quote all those nice articles from irpr, obs and processing manuals and asked how can my permit be expired when it says it is extended by law??? all they say is your work permit expired without knowing to explain why they choose to apply provisions of the ob restrictively instead of applying irpr literally. End of story. but they did emphasize that call agents don't make decisions so i guess it all depends on the particular officer. gluck with whatever you do

 

[LPS]

I think anonimo might be right. I posted several questions about using implied status between 2 periods to apply for bowp (you can check my previous postings) and eventually called the call center. They told me NO they won't consider it because my work permit expired and the ob 485-a says you need to have a valid work permit. I did quote all those nice articles from irpr, obs and processing manuals and asked how can my permit be expired when it says it is extended by law??? all they say is your work permit expired without knowing to explain why they choose to apply provisions of the ob restrictively instead of applying irpr literally. End of story. but they did emphasize that call agents don't make decisions so i guess it all depends on the particular officer. gluck with whatever you do

Are you confusing BOWP with CEC?

 

[Pippin]

IF this is the route you wish to take, be advised that time lines to apply for Judicial Review are extremely short. Shortest if you are in Canada. (Possibly 15 days, but double check that.) GCMS notes should be ordered, but you will have to make the decision whether or not to go the JR route before they arrive. Filing fee is only $50 to hold your options open. Legal fees will be significant, but you can try the reconsideration and legal advice in the meantime. Do a Forum and Google search for Judicial Review and you will find lots of info.
Another issue that had just happened relates to the November 9, 2013 change of CEC rules which may impact you going forward. http://www.cic.gc.ca/english/department/media/backgrounders/2013/2013-11-08.asp
I am really sorry for the position in which you find yourself and hope with the help of the good people on Forum and solid legal assistance, you will come to a positive resolution. All the best.