Case Commentary - 2011

JANUARY 2011
January 6, 2011
HAJERA KHATUN ET. AL. v. Canada (Minister of Citizenship and Immigration)

The Applicant was accused of misrepresentation. He was alleged to have provided a false date of birth for his brother, thereby qualifying him as a dependent child in order to render him eligible for sponsorship.

On his original immigration forms from 2000, the Applicant indicated that his brother was 19 years of age. However, on the “Application to Sponsor and Undertaking” forms completed subsequently in 2004, he indicated that his brother’s date of birth was August 18, 1986. In response to the Visa Officer’s charge of misrepresentation, the Applicant claimed that he accidentally wrote the wrong year on the initial set of forms.

The Court finds that while it was possible that the Applicant genuinely erred in misstating the brother’s year of birth, it was reasonable to conclude in this case that it was unlikely that he would also happen to miswrite the brother’s age as 19 instead of 13.

A combination of these factors with the incentive to change the year of birth so as to allow the brother to immigrate as a dependent child could reasonably lead to a conclusion of misrepresentation. This conclusion would be difficult to overcome with documents based on self-declared information alone. The Visa Officer’s conclusion was therefore reasonable and justified based on the information at his disposal.

January 11, 2011
MAJID HASSAN CHAUHDRY v. Canada (Minister of Citizenship and Immigration)

The Applicant received a renal transplant in 2004 and has since required daily immunosuppressive medication. Despite this fact, he is in excellent health and medical evidence indicates that he will remain so for many years. The question is whether the Applicant will pose an excessive burden on the Canadian public health system.

The Applicant has savings and property in addition to the financial support of his father and brother, and has furthermore indicated that he intends to purchase a comprehensive health insurance package should he be granted permanent residence.

The only issue in this case relates to procedural fairness. The Applicant was informed via a Fairness Letter that the decisive issue in his case were drug costs and excessive demands on the Canadian public health system. It is clear that the Applicant understood this because his response indicated that the problem could be overcome through arrangements for a private or group plan which would negate any excessive demands upon the public purse.

However, the Applicant’s plans to enrol in a private health insurance plan in Canada were inchoate, and his promise not to use the Canadian public health system is unenforceable. His attitude with respect to paying for insurance could change after he arrives and realizes he is paying for coverage that other Canadians receive via the public system. In short, his reply to the Fairness Letter makes it clear that he does not understand the public health system in Canada.

The Applicant now has full knowledge of what is required, and could have acquired this knowledge earlier if he had sought and taken the appropriate advice. As the decision to refuse his file contained no errors, the application for review is dismissed.

January 26, 2011
LEONID REZNITSKI v. Canada (Minister of Citizenship and Immigration)

The Applicant, a Skilled Worker, indicated that he was unemployed from 1996 to 2001. He was given 30 days to forward copies of passports, details of his military service, and to further account for his activities during the aforementioned period.

The Applicant responded to this request before the expiry of the 30-day limit, failing however to provide any additional information regarding his period of unemployment. Rather, he simply reiterated that he did not work during this period. Additionally, the Applicant did not indicate in his response whether anything else was outstanding or forthcoming.

Upon receipt of the Applicant’s response, and while still within the 30-day limit, the Visa Officer proceeded to refuse the file. The reason the decision was made before the expiry of the 30 days was that the Applicant provided his response in less time. The Court holds that his response was clearly a full response and that there was no indication that anything else was outstanding or forthcoming.

It was only after the receipt of the refusal letter that the Applicant attempted to supplement his response. The Court holds however that this constituted a tacit acknowledgement that the initial response was not sufficient. As a result, the Visa Officer was clearly entitled to conclude that it was insufficient and to refuse the application on that basis. The refusal was the only step open to the Visa Officer and there was no need to warn the Applicant of the obvious outcome of his failure to answer the question.


FEBRUARY 2011
February 3, 2011
ZAFAR SHAHID [RESPONDENT] v. Canada (Minister of Citizenship and Immigration)

The central issue in this case is the definition of “full-time equivalent” studies.

The definition of “full-time equivalent” studies applies to those who obtain educational credentials through part-time or accelerated studies, however it does not apply to those who complete independent study (outside of a university setting). The central factor in determining full-time equivalency is the equivalent amount of time someone who obtained the same degree on a full-time basis would have studied.

Similarly, the definition of “educational credential” in section 73 of the Immigration and Refugee Protection Regulations (IRPR) means “any diploma, degree, or trade or apprenticeship credential issued on the completion of a program or training at an educational or training institution recognized by the authorities”.

In this case, the Respondent’s spouse took two years to complete a degree that normally takes two years to complete. There is therefore no equation necessary. However, the Respondent’s spouse failed to obtain an educational credential as defined or achieve 14 years of full-time or full-time equivalent studies. The Immigration Officer therefore came to the correct conclusion in refusing the file.

February 11, 2011
OLUREMI ESTHER AKINMAYOWA v. Canada (Minister of Citizenship and Immigration)

During the application process, a letter was forwarded to the Immigration Department from “concerned Nigerian/Canadians, Toronto,” stating that the Applicant’s marriage was a marriage of convenience. This letter served in part as basis for refusal of an in-Canada spousal sponsorship application.

However, the letter was not disclosed to the Applicant at any time prior to the decision being rendered. In this respect, the law is clear that if a decision is to rely upon extrinsic evidence, this evidence must be disclosed to the Applicant. Further, the Applicant must be given an opportunity to see and respond to such evidence prior to any decision being made.

As a result of the letter, the Immigration Officer failed to fully consider and properly weigh the evidence at hand. He did not give weight or credibility to documentary evidence supporting the genuineness of the marriage, and noted many discrepancies between answers from the Applicant and spouse resulting from their respective interviews. However, the Court finds that many of these discrepancies can be explained as not being so, and the vast majority of answers were consistent and identical.

The Court finds that the failure to disclose constitutes a breach of natural justice and the duty to act fairly. The application for review is therefore allowed.


MARCH 2011
March 7, 2011
ZINASH GETAHUN DESALEGN v. Canada (Minister of Citizenship and Immigration)

The sponsor failed to disclose the existence of his marriage either upon receipt of his visa in Kenya, or upon his entry in Canada. The marriage was only disclosed when he sought to sponsor the Applicant.

Under section 117(9)(d) of the Immigration and Refugee Protection Regulations (IRPR), a foreign national shall not be considered a member of the family class by virtue of their relationship to the sponsor if the sponsor previously made an application for permanent residence, and at the time of application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

The sponsor brought forth two factors purporting to justify a favourable exercise of Humanitarian and Compassionate (H&C) discretion following application of section 117 IRPR; namely 1) that he did not understand English and 2) that he was unaware and did not intend to breach his obligation to disclose the existence of his marriage. Both of these arguments were rejected as considerations to support the exercise of H&C discretion.

Simply put, the Applicant sought a favourable decision in the basis that the sponsor did not intend to violate section 117(9)(d) of the IRPR. While his explanations must be considered, they cannot alone constitute grounds to compel the exercise of favourable discretion. Failure to know the law and a lack of intention to break it have never been considered compelling arguments in Anglo-Canadian jurisprudence.

March 16, 2011
MD AZIZUL HAQUE ET. AL. v. Canada (Minister of Citizenship and Immigration)

In his application under the investor class, the Applicant failed to disclose that he had formerly lived and studied in the United States for over one year

When asked to clarify why this information was withheld, the Applicant’s consultant replied that Mr. Haque assumed he did not have to declare it because it was a short stay in the United States. However, in a subsequent phone conversation with the Visa Officer, Mr. Haque denied this explanation, saying instead that he had disclosed all relevant information to his consultant and that the consultant had made the error.

The Applicant never “corrected” or “rectified” the misrepresentation as he claims. The information was only discovered as a result of the Visa Officer’s review of his previous Temporary Residence Visa (TRV) applications.

A foreign national seeking entry into Canada has a “duty of candour” that requires disclosure of material facts. Had the time spent in the United States not been discovered, a visa could have been issued without the required United States police conduct certificate (PCC).

The Applicant’s omission risked inducing error into the Immigration and Refugee Protection Act’s (IRPA) administration. Though he attempted to attribute blame to his consultant, it nonetheless remains the case that Mr. Haque signed the application. He cannot be absolved of his personal duty to ensure that the information provided was true and complete.

March 25, 2011
KHATUN RABEYA v. Canada (Minister of Citizenship and Immigration)

The Applicant obtained a first Master’s degree in Arts in 1995, and a second Master’s degree in Business Administration. Following assessment by the Visa Officer, only the educational history leading to the first Master’s degree was considered in the Visa Officer’s evaluation of the Applicant’s educational history. As a result, the Applicant was assed as having only 16 years of education leading to her “highest educational credential”.

There is uncertainty in how two Masters’ degrees should be assessed under the Immigration and Refugee Protection Regulations (IRPR). As a matter of fact and a matter of law, there are no grounds to exclude consideration of a second Masters’ degree; to do so would be illogical.

Not considering the second degree or additional educational credentials of the same level fails to recognize that people can indeed pursue their studies at a graduate level in another field. The evaluation of the second Masters’ degree is consistent with an applicant’s capacity to become economically established in Canada, as well as meeting the Immigration and Refugee Protection Act’s (IRPA) regulations.

However, there is no need for use of the criteria of “the complete academic history”. Rather, the “latest” and “highest” education credential is the one to be considered, which in this case happened to be the second master’s degree, which came after 17 years of study.

It remains to be seen whether higher courts will modify this decision.

March 28, 2011
JAMES STUART YOUNG MARR v. Canada (Minister of Citizenship and Immigration)

The Applicant has a two-year post-secondary educational credential. Under s. 78(d)(i) of the Immigration and Refugee Protection Regulations (IRPR), 20 points can be awarded only if the applicant has completed 14 years of full-time or full-time equivalent studies.

An applicant with a two-year post-secondary educational credential will only have 14 years of education if the secondary school study period is 12 years, as is the case in Canada. In Scotland, however, the secondary school study period is 11 years. The Applicant therefore has only 13 years of study, and at first glance he does not meet the requirements set out in s. 78(2)(d)(i).

However, it makes no sense for an applicant to be awarded no points merely because he has completed his education sooner than the norm, which is why a remedy exists for such cases. Under s. 78(4) of the IRPR, where a Visa Officer determines that special circumstances exist, the Officer shall award the number of points related to the educational credential despite the Applicant not having achieved the necessary years of full-time study.

Section 78(4) should be read as a potential exception to the years of study requirement in s. 78(2) where, on a discretionary basis, an Officer determines that special circumstances exist. The fact that Scotland’s secondary education is one year shorter than in most of Canada could be such a special circumstance. In this case, consideration of these special circumstances would have warranted the Applicant receiving full-points despite lacking one year of study.

There is second ground for allowing the application for review. The Officer stated that new information could not be considered following the “final refusal” of the application. In so doing, the Officer fettered his or her discretion; he did indeed have the ability to consider the new evidence. Basic fairness and common sense suggest that when an Officer receives a document confirming information already before them, they should exercise their discretion to reconsider the decision, especially for an application that has been outstanding for many years. It serves no purpose to require an applicant to restart the entire process and again wait years when the application and evidence is fresh in the Officer’s mind and whether the Applicant is not introducing facts that had not previously been disclosed.


APRIL 2011
April 7, 2011
NAJI ARAMOUNI v. Canada (Minister of Citizenship and Immigration)

The Visa Officer came to a negative determination pursuant to s. 76(3) of the Immigration and Refugee Protection Regulations (IRPR). Subsection 76(3) allows for a substituted evaluation based on an applicant’s ability to become economically established in Canada, whether or not they receive the necessary amount of points on their application.

In this case the Applicant was a 63-year-old nurse who had not worked for three years. The Visa Officer’s primary concern was that, given her age and period of unemployment, her employment opportunities would be limited. As well, the Visa Officer was concerned that the Applicant had not taken steps towards updating her skills, obtaining professional certification, or seeking employment despite having resided in Canada for 2 years.

The Visa Officer was concerned not only about the Applicant’s ability to find employment in Canada, but also her willingness in this regard as well as a number of other subsidiary factors related to becoming economically established in Canada. Notably, the Visa Officer considered that she had already effectively retired in the UK, and that while her husband had been offered work in Canada, a Labour Market Opinion (LMO) had not been issued for a second stay.

In substituting a negative assessment, it cannot be said that the conclusions reached by the Visa Officer were unreasonable. The Visa Officer’s decision to substitute a negative determination under s. 76(3) of the IRPR did not lack justification, transparency or intelligibility, and his final determination fell within the range of possible and acceptable outcomes defensible in respect of the facts and the law.

April 13, 2011
FAVIO CRUZ UGALDE ET. AL. v. Canada (Minister of Citizenship and Immigration)

This decision concerns a pre-removal risk assessment (PRRA) for refugee claimants.

In coming to his decision, the Visa Officer assigned little value to letters from the Applicants’ family members confirming that persecutors had been searching for the Applicants and that they had all experienced threats and break-ins by the same persecutors. The basis for the Visa Officer’s approach to this evidence was that the family members were “not disinterested”.

In general, a decision maker may give “self-serving” evidence little weight. However, jurisprudence has established that such evidence should not be disregarded simply because it comes from individuals connected to the persons concerned. It is not reasonable to expect that anyone unconnected to the Applicants would have been able to furnish evidence regarding the persecution experience in Mexico. In fact, the family members were those best able to bear witness to the events in question, especially due to the fact that they themselves were at times targeted.

The Visa Officer also gave little weight to letters emanating from a judge and lawyers describing the Applicants’ reasons for fleeing, on the basis that they were vague and not sufficiently neutral evidence due to the fact that they were written upon request of the Applicants. This was unreasonable in that it failed to consider the context of these letters. As a result, the application for review is allowed.

April 15, 2011
NOEL MESCALLADO v. Canada (Minister of Citizenship and Immigration)

The Applicant was refused due to the Visa Officer’s finding that he had lied on his application.

Specifically, the denial was based on a finding that the Applicant had breached s. 16 of the Immigration and Refugee Protection Act (IRPA) by answering “No” to the question of whether he had any criminal charges outstanding against him.

The facts indicate that the Applicant was charged with assault in the Philippines in 2004. The charge was ordered “provisionally dismissed” in that same year, and in 2009 the Applicant applied for and obtained a permanent dismissal of the charge.

There is no real equivalent Canadian provision to “provisional discharge”; i.e. no provision where an accused person’s charges are dismissed subject to being revived on a motion. The Visa Officer held that a provisional dismissal of the charge still constituted a pending charge. However, he failed to obtain advice or inquire to the legal quality of a provisional dismissal under Philippine law. He also failed to consider the circumstances of the dismissal, which in this case was based upon the failure of the complainant to appear at the trial.

The Applicant’s answer was only untrue or inaccurate if a provisional dismissal is not a dismissal. Under these circumstances, the Visa Officer had an obligation to inquire further into the legal nature of the dismissal. What the Tribunal Record does show is that, absent what is similar to a motion to reopen, the Applicant was under no legal impediment and under no pending legal process.

The Visa Officer’s exercise of discretion in dismissing the application without first advising the Applicant as to his concerns about the legal quality of a provisional discharge was unfair and a disproportionate response to the issue.


MAY 2011
May 13, 2011
LARISA POLICHTCHOUCK ET. AL. v. Canada (Minister of Citizenship and Immigration)

Though the Visa Officer referred to the incorrect sections of the Immigration and Refugee Protection Regulations (IRPR) in his refusal letter, his determination remains valid. The central issue in the Visa Officer’s determination was that the Principal Applicant’s marriage to Mr. Makievski lacked bona fides under section 4 of the IRPR.

The question before the Court is whether the Visa Officer’s decision as to the bona fides of the marriage was unreasonable. The Applicant and her husband raised several points in this respect, claiming that the Visa Officer’s determination was unjustified. None of the points raised warrant reconsideration.

Notably, the Applicants claimed that they were only informed of the interview on the day of the interview itself and were therefore unable to provide additional supporting documents and information. In this respect, the records indicate that the Visa Officer had sent a notification letter to Mr. Makievski three weeks in advance of the interview. In this letter, both individuals were specifically request to being documents to demonstrate the bona fides of their marriage.

The Visa Officer noted that the Principal Applicant’s parents and sister, despite being in Canada, had not attended the wedding. While the absence of these family members cannot be said to be a major negative factor counting against the bona fides, the Principal Applicant provided no satisfactory explanation as to their absence during the interview.

The Visa Officer determined that the Principal Applicant had not sufficiently demonstrated that her relationship was genuine and not entered into for the purpose of acquiring status. This conclusion was justified, intelligible and transparent, and falls within the range of possible, acceptable outcomes defensible in respect of the facts and the law.