November 9, 2018 – This editorial written by Attorney Colin Singer, appears in the Lawyer’s Daily.
On April 6, 2016, Quebec’s government tabled new legislation: the Quebec Immigration Act. On July 18, 2018, it tabled new regulations: the Quebec Immigration Regulation, providing for a significant overhaul of its immigration programs, which are both now in force.
In our last article, we covered the selection rules for business applicants in the Entrepreneur Program. Here are the selection rules for the other two programs.
Investor Program
An investor is defined as a foreign national with at least two years in the five years preceding the application, of management experience (duties related to the planning, management and control of financial resources and of human or material resources under the investor’s authority, provided that such responsibilities and duties are not assumed in the context of an apprenticeship, training, or specialization process attested to by a diploma) in a legal farming, commercial or industrial business, or a suitable legal professional business (whose personnel include at least two full-time employees excluding the owner and his spouse), or a government department.
The investor, alone or with his accompanying spouse or de facto spouse, must have net assets of at least $2 million obtained legally, excluding amounts received by gift within the period of six months prior to the submission of an application. The investor must undertake to invest $1.2 million for five years, in a prescribed investment.
Suitable management experience can derive from a commercial, industrial, professional enterprise or a government agency.
Previous policy changes have given investor’s management experience a more liberal application to allow professionals such as doctors, dentists, pharmacists, accountants, lawyers and engineers who operate their own professional practices, which employ at least two full-time personnel, to qualify as an investor.
Under the Quebec program, immigrant investment proceeds are allocated to Quebec and guaranteed by way of a promissory note issued by Investissement Québec, a Quebec government-owned corporation. The five-year investment period begins immediately following Quebec approval which often takes place long before the investor comes to Canada. If the investor is refused by the federal authorities for a medical or security inadmissibility, the investment less applicable financing charges is refunded.
The Quebec Ministry of Immigration, Diversity and Inclusion (MIDI) will receive a maximum of 1,900 new investor applications during the period Sept. 10, 2018, through August 31, 2019. From the 1,900 available places, 1,235 are reserved for applicants from China, Hong Kong and Macao. The remaining 665 applications are open for everyone else meeting the criteria.
Self-Employed Worker Program
A self-employed worker is primarily differentiated from skilled worker applicants in that to qualify the self-employed person must have two years of applicable experience, possess a personal net worth of $100,000, have sufficient settlement funding and will come to Quebec to create their own job by practising a profession or engaging in commercial activities. Prospective applicants must also meet applicable occupational entry or licensing requirements.
They must also submit a startup deposit of at least $50,000 if the self-employed candidate is based in the metropolitan area of Montreal, and $25,000 if the candidate is located outside Montreal. This deposit is accessed by the applicant from the financial intermediary to carry out the business project.
Like skilled workers, the self-employed applicant is assessed under a selection grid, comprised of several factors.
The MIDI will receive a maximum of 50 new self-employed applications during the period Sept. 10, 2018, through August 31, 2019. However, candidates who demonstrate an intermediate-advanced knowledge of French language (by presenting French test results of level B2 in speaking and listening) can apply at any time and are not subject to any quota.
Procedure
Applicants intending to settle in the province of Quebec are required to file an application for a Quebec Certificate of Selection (CSQ).
Once an application is approved and a CSQ is issued, the applicant may apply for permanent residence with a federal Canadian visa office. The application is submitted to a centralized processing centre and redirected to a visa office following review of completion.
After the applicant has successfully completed the federal statutory verification process comprising health and security, the final disposition of the application will lead to visa issuance.
Processing delays
Current processing delays vary from eight to 12 months for investor applications, as MIDI centralized the processing of its business applications in Montreal. This has resulted in reduced processing delays. Processing times for the entrepreneur and self-employed programs can surpass 36 months.
Contesting refused applications
The Quebec Superior Court in virtue of its superintending and reforming powers emanating from the rules of common law and s. 33 of the Quebec Code of Civil Procedure is the court of jurisdiction to contest by way of motion (evocation, mandamus, declaratory relief, etc.), administrative decisions emanating from the MIDI refusing applications for certificates of selection.
Such motions must be instituted within a reasonable delay from the final decision giving rise to the recourse. Given the complexities often surrounding an overseas immigration matter, a delay of up to six months to institute recourse in Quebec Superior Court following a refusal, has been considered permissible.
Applicants may also pursue an optional administrative review process by filing a request for reconsideration within 90 days from refusal. This is an informal process which in most cases upholds the initial refusal. Where the parties seek administrative review, the delay to file a judicial review of an unfavourable decision would be extended.
The use of directives
The MIDI manages its immigration program through the use of policies, guidelines and directives, most of which appear in the Guide des procédures de d’immigration. The Quebec Court of Appeal has held that these guidelines are binding on the MIDI.
This is the second in a two-part series.
Read part one
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