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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.

May 26, 2011
MARTIN TAN LEE v. Canada (Minister of Citizenship and Immigration)

The Applicant was refused for lack of points. The main issue was that he was not awarded the points he claimed under the categories of education and adaptability.

With regard to his education, the Visa Officer granted the Applicant 22 points, despite the fact that he had a Master’s Degree in Business Administration (MBA) and had claimed at least 17 years of full-time education.

When awarding points for education, the assessment of total years of study is based on the amount of time it would take to complete a program of study on a full-time basis. With this principle in mind, two factors led to the Visa Officer’s assessment that the Applicant had only 16 years of full-time education.

First, the Applicant attended private school for 11 years leading to the completion of his secondary-level education. However, the usual course of study leading to graduation from secondary school in the Philippines is 10 years. The Court notes that neither the mode or manner of how one completes their studies, nor the fact that a private school may have led to a better quality of education, are relevant to the question of determining the total years of study or the amount of points to be awarded.

Second, the Applicant claimed that the MBA program should be assessed as a 3-year program. In this respect, the Visa Officer assessed this academic credential against the requirements that existed at the time the Applicant completed his degree, i.e. 2006. In this respect, despite the fact that the Applicant took 3 years to complete the MBA program, it was considered by the school to be a 2-year program at the time of completion. The fact that the degree incorporated credits completed in the 1980s was of no importance.

As a result of these two factors, the Applicant was assessed as having 16 years of full-time education and was awarded 22 points correspondingly (10 years of elementary/secondary education, 4 years of bachelor studies, and 2 years at the master’s level). This is a reasonable interpretation of the Immigration and Refugee Protection Regulations (IRPR) and their application to the educational credentials in question.

Finally, with regard to the adaptability criteria, at the time that the application was submitted the Applicant’s wife had an uncle in Canada. However, when the application was processed, the uncle had left the country. As the application listed no other relatives residing in Canada, the Visa Officer did not award the 5 points under the adaptability criteria. The Court notes that there is no “lock in” of a relative’s status in Canada.

The application is therefore dismissed.

May 18, 2011
RITESHKUMAR GOPALDAS PATEL ET. AL. v. Canada (Minister of Citizenship and Immigration)

The application was refused because the Applicant did not produce sufficient evidence of his work experience. The central issue is the Visa Officer’s concerns about the credibility of the supporting documentation.

Regulation 75 of the Immigration and Refugee Protection Regulations clearly indicates that a foreign national is only a skilled worker if he can show one year of full-time employment where he performed the actions in the lead statement of the National Occupation Classification (NOC) description of the occupation as well as a substantial number of the main duties.

In this case, the Visa Officer took issue with the fact that the duties in the employment letter and the letter of experience provided by the Applicant were the same, and both had been copied directly from the NOC description. However, the Visa Officer’s reasons are inadequate to explain why this was problematic.

Had the Visa Officer’s only concern been that the employment letter was insufficient proof that the Applicant met the requirements of Regulation 75, then no interview would have been required. However, the Court finds that the implication from the reasons provided is that the Visa Officer considered the experience letter to be fraudulent. As a result of this view, the Visa Officer ought to have convoked an interview of the Principal Applicant.

As no interview was convoked, the Visa Officer denied the Applicant procedural fairness and the application for review must be allowed.

JUNE 2011
June 9, 2011
LINDA ESCANILLA FARENAS v. Canada (Minister of Citizenship and Immigration)

The Applicant applied for Permanent Residence (PR) as a member of the Live-in Caregiver Class.

The visa office discovered that there was a registration of her child’s birth in 1993 that listed a different father from the birth certificate which was issued in 2003. The Visa Officer believed that this act constituted an offence in the Philippines that, if committed in Canada, would constitute an offence under paragraph 337(1)(b) of the Criminal Code – causing false information to be inserted into a birth register.

Further, the Visa Officer had information that the Applicant was still married to the father listed on the 1993 birth registration when she married her current husband. In the Visa Officer’s opinion, this constituted the crime of bigamy pursuant to section 290 of the Criminal Code.

Finally, the Visa Officer was also of the opinion that the Applicant had committed the offence of perjury under section 131 of the Criminal code was also inadmissible due to misrepresentation pursuant to paragraph 40(1)(a) of the Immigration and Refugee Protection Act (IRPA) for obtaining and submitting fraudulently obtained documents relating to her current marriage.

Despite these accusations, the Applicant provided a reasonable explanation for all of the foregoing. To wit, she had a relationship and got pregnant with her first husband, whom she married in 1993. Shortly after the marriage, however, her husband disappeared. The Applicant came to the conclusion that her first husband “did not in fact exist”, and whomever she had married had given her a false name.

In 1996, she met her current husband and married without taking any action to dissolve the first marriage. The current husband raised the child as his own, and so they reregistered the birth listing the current husband as the father. The Court notes that the Applicant believed her first marriage to be void, and that under Canadian and Filipino law, one must have the intent to marry a person while already legally married to someone else in order to be convicted of bigamy.

In Canada, a mistake of fact (e.g. believing the first marriage to be void) is a valid defence to bigamy, it precludes a finding of mens rea (intent) required in order to convict an individual of bigamy.

The Visa Officer did not conduct an adequate, critical equivalency analysis and failed to properly assess whether the Applicant had the requisite mens rea to have committed the offence of bigamy. Therefore, the Visa Officer’s conclusion in this respect was not reasonable. The Court is equally unsatisfied with the remainder of the Visa Officer’s reasons.

While the misrepresentations allegedly made by the Applicant regarding her first marriage and the father of her child are troubling and breach the duty of candour required by the IRPA, they are not sufficient to overcome the deficiencies found in the equivalency analysis in this case. The application is to be remitted to a different decision-maker.

June 30, 2011
CUI WANG v. Canada (Minister of Citizenship and Immigration)

This case concerns a “poison pen letter”. During the interview, the Visa Officer disclosed that he had received an anonymous letter that included allegations that his marriage was a marriage of convenience.

The Applicant contends that there was a breach of procedural fairness because neither the letter nor its particulars were disclosed to the Applicant or her husband. However, it has been held that a “poison pen letter” does not necessarily have to be disclosed to an applicant, so long as they are made aware of the allegations contained therein (D’Souza v. M.C.I. 2008 FC 57). This is what occurred here – the Visa Officer explicitly indicated that the letter had been received, and gave the Applicant an opportunity to respond to the concerns raised therein. As a result, no breaches of natural justice were committed.

Moreover, nothing in the Immigration Appeals Division’s (IAD) reasons suggest that it relied upon the letter in reaching its conclusion as to the bona fides of the marriage. The letter is not part of the official record, and is only touched upon briefly in the eight-page decision. The decision was based primarily on implausibility findings and negative credibility findings. Notably, despite frequent communication with her mother, the Applicant did not inform her of the engagement, and provided unconvincing reasons as to why. The IAD also concluded that the trips made to China were not necessarily for the Applicant to see her husband, and raised concerns that the husband did not know much about the relationship with the person who introduced them and provided a different date of introduction from that of the Applicant.

JULY 2011

July 14, 2011
ROMAN CHERNIKOV v. Canada (Minister of Citizenship and Immigration)

The Canadian Border Services Agency (CBSA) Officer received a tip from the Calgary Health Region that the Applicant had been hospitalized for alcohol withdrawal issues and had checked out against the orders of the doctors.

This information was included in the Officer’s Report on Inadmissibility (under section 44 of the Immigration and Refugee Protection Act) which was sent to the Minister’s delegate for use in the danger assessment. However, the CBSA Officer did not include the source of the information or any documentary evidence such as medical records.

The Respondent submits that procedural fairness does not require the CBSA to disclose information it receives from tips from reliable resources. However, operation manual ENF 28 indicates in section 7.5 that “all documentation must be releasable to the person concerned and the person’s counsel’ and that a CIC or CBSA Officer should not present information which is speculative, cannot be sources, or was not disclosed to the person by CIC.

The ENF manuals are only guideline documents; however they outline appropriate conduct in drafting a danger opinion. With the ENF 28 guideline considered, the CBSA Officer should not have included the information related to the Applicant’s hospitalization. Doing so amounts to a breach in procedural fairness.

The Court notes that the Applicant was not under a duty to produce his medical records, and that the burden of proof bears upon the Minister’s delegate to show that the Applicant is a danger to the public. The onus of proof does not shift to the Applicant as a result of the CBSA Officer’s inappropriate actions. The breach of procedural fairness and the attempt to reverse the onus to the Applicant to defend against the aforementioned allegations was an error of law requiring judicial intervention.

July 28, 2011
MARTINEZ RODRIGUEZ ET. AL. v. Canada (Minister of Citizenship and Immigration)

The Applicant had come to Canada twice before on temporary visitor visas, and was attempting to enter once more in order to visit her aunt in Canada.

Upon arrival, the Visa Officer noted that her records indicated that she in fact had permanent resident status, though she had not met her residency requirements. Up until that moment, she was unaware that Canadian records showed her as a permanent resident.

The Visa Officer informed her that in order to obtain a temporary residency visa, she would have to consent to a decision resulting in her loss of status as a Canadian permanent resident, and waive any rights of appeal she might otherwise have had. She signed the form.

The issue is whether she gave her consent. The Applicant posits that she did not understand English and did not know what she was signing.

The Court notes that the Applicant should never have been granted temporary resident visas in 1998 and 2000. The Visa Officers handling those applications should have informed her that she was listed as a permanent resident.

The Court finds that the Applicant signed the form “without independent advice”. Whether or not she gave valid consent is not a matter for the court to determine; it is a matter for the Immigration Appeals Division (IAD) to determine.

While the Visa Officer may well have thought she was doing the Applicant a favour, since the Applicant was not entitled to a travel document as a permanent resident, the Court finds that she should not have been given an opportunity to renounce that status as her only alternative.

The Applicant should have been sent back to El Salvador and given a full opportunity to consider her options and to take advice. Renunciation of permanent resident status is an important step in a person’s life and should not be decided on the spur of the moment. Although the Applicant had not met the residency requirements imposed upon all permanent residents, in the end it is up to the IAD and not the Court to determine if there are Humanitarian and Compassionate considerations which override that defect.

NOVEMBER 2011
November 16, 2011
SHAMSUN NAHER CHOWDHURY v. Canada (Minister of Citizenship and Immigration)

Three issues were raised in this appeal.

First, with regard to the Applicant’s education, the number of points awarded to the Applicant depended entirely on whether her Master’s Degree counted as two years of full-time education as claimed. The Visa Officer found that the Master’s Degree was “likely a year course”, based primarily upon the fact that the Applicant was working full-time while earning the degree. However, the Visa Officer’s decision provides no indication of consideration of the Applicant’s transcripts, which show that she had completed 66 credit hours – a considerable number of credit hours to complete in a single year. Based on this as well as all other evidence before the Visa Officer, the Court concludes that the assessment of the Applicants education was not reasonable.

Second, with regard to the Adaptability criteria, the Applicant felt that she was submitting her mother’s birth certificate and believed it to be enclosed, as indicated in a latter from her uncle. Though the birth certificate had not in fact been submitted, the information before the Visa Officer was that it was available and that the Applicant believed it had been submitted. He simply penalized the Applicant on the basis of an obvious error that could easily have been rectified.

Finally, the Applicant requested a substituted evaluation pursuant to subsection 76(3) of the Immigration and Refugee Protection Regulations (IRPR). However, there is no indication in the decision that the Visa Officer performed a substituted evaluation as requested once it was determined that the Applicant did not meet the required minimum of 67 points. In failing to do so, the Visa Officer breached the Applicant’s right to procedural fairness.

As a result of these considerations, the application for review is allowed.

November 16, 2011
MD GOLAM AZAM KHAN v. Canada (Minister of Citizenship and Immigration)

The Application was refused due to lack of points.

It is not possible to tell from the decision and CAIPS notes how the Visa Officer calculated the number of full-time years of education completed by the Applicant, a fact conceded by the Respondent’s counsel during the judicial review. It must be noted as well that the Visa Officer, Respondent and Applicant each obtained different results in their calculations of the number of years of full-time education.

The important point is that no one knows how the Visa Officer calculated the number of years of full-time education. As a result, it is not possible to understand the decision or determine whether it was reasonable. There is thus an issue of procedural fairness. If the Respondent’s counsel cannot explain the Visa Officer’s calculations, it would be unfair to expect the Applicant to be able to do so.

The concern over this point is further compounded by the fact that the Visa Officer told the Applicant he had awarded a total of 64 points, when in fact the points for each category in the decision letter added up to 65 points. This could be a simple error in addition, but suggests to the Court that the Visa Officer had been hasty and that the matter needs to be returned for reconsideration.

DECEMBER 2011
December 2, 2011
LUIS MONTEVERDE v. Canada (Minister of Citizenship and Immigration)

This appeal concerns an application which was transferred from the Embassy in Caracas to the Case Processing Pilot – Ottawa (CPP-O). In Ottawa, the application failed because the Visa Officer was not satisfied with the Applicant’s employment letters.

In this respect, the Caracas Embassy initially requested that the Applicant provide photocopies of “job reference letters/confirmation of employment letters”. In response, the Applicant submitted employment letters with certified translations and a detailed description of his job responsibilities as required by the provided document checklist.

The Embassy checklist did not require the detailed description of job duties to be confirmed by the employer or to be included in the employment referees letters, as was later set out in a correspondence from the CPP-O. In that later correspondence, however, the Applicant was also advised that there was no need to resend documentation referred to in the letter sent by the Caracas Visa Office if it had already submitted. As a result, the Applicant simply forwarded his documentation to CPP-O without amending the employment letters as he was under the impression, reasonably held, that he was to follow requirements provided earlier by the embassy.

The Court found that the Visa Officer appeared to look no further than the employment letters to determine whether the Applicant had met the requirements and failed to consider the application as a whole. The reasons provided for the refusal were unclear – the Visa Officer merely states that the employment letters submitted by the Applicant did not provide sufficiently detailed duty descriptions. No reference was made to the documentation provided by the Applicant detailing his employment responsibilities, nor the other objective evidence submitted.

If there was any doubt as to the accuracy or genuineness of the information provided by the Applicant, fairness required that the Visa Officer provide the Applicant an opportunity to correct any deficiencies. The Application for review is therefore allowed.

December 15, 2011
CLEMENT ANAENE OKONKWO v. Canada (Minister of Citizenship and Immigration)

This case concerns a federal investor class application. The Applicant submitted his initial application in August of 2004, which included evidence of a real estate purchase in Mississauga, his involvement with a Canadian business, and his son’s residence in Canada. He also informed the Visa Officer that he was elected a Senator in his home country of Nigeria in 2007. Of note, the Visa Officer later discovered that he would be actively seeking re-election in May 2011.

The Applicant was informed in July 2010 that his application was complete and was requested to make the required $400,000 investment, which he did. In November 2010, he received a letter expressing concern about his intention to reside in Canada. The letter centered on the fact that the Applicant would not be able to meet his residency obligations based on his current and possible future obligations in the Senate as well as other obligations within his home state in Nigeria.

At issue is the fact that the Visa Officer placed heavy emphasis on the Applicant’s re-election in May 2011, in particular on the reasoning that if the Applicant continued to be a Senator, he would have no intention of becoming a Permanent Resident or maintaining his residency status. The Court considers this reasoning erroneous, and makes note of its corollary: if the Applicant did not continue to be a Senator in the future, there is no evidence of a lack of intention to become a Permanent Resident. In either case, according to the Court, the Immigration Officer’s decision was the result of sheer speculation in the decision-making process, which constitutes a reviewable error. The Application for review is therefore allowed.

December 19, 2011
JASBIR GRABOWSKI v. Canada (Minister of Citizenship and Immigration)

The Applicant was a citizen of India and a permanent resident of Germany. He obtained a temporary work permit to work at a Subway restaurant in British-Columbia. However, he worked there for only four days in January 2009 and has since been unemployed.

Soon after he lost his job the Applicant met his current spouse, a Canadian Permanent Resident, whom he married in June 2009. He then applied for Permanent Residence, and was subsequently refused for reasons which included the fact that his marriage was one of convenience.

The test to assess the genuineness of a marriage is disjunctive - a marriage could be found to be of bad faith either if it was not genuine or if it was entered into primarily for the purpose of acquiring status under the Immigration and Refugee Protection Act (IRPA). In this case, the Visa Officer clearly concentrated on the fact that the Applicant’s marriage had been entered into for primarily for immigration purposes and not in order to gain work experience. She further found the parties not to be credible in their accounts of where they met.

Any evidence that the Visa Officer allegedly overlooked would not have allayed her concerns. The Court concludes that the Applicant was not treated unfairly at any point in the process, and that the Visa Officer’s conclusions were supported by the evidence and set out in her reasons. The Application for review is therefore dismissed.

December 21, 2011
HSUEH-WAN LU v. Canada (Minister of Citizenship and Immigration)

The Applicant, the president and owner of a business in Taiwan, was selected as part of the Quebec Investor Immigrant program. With his application, he attached a summary criminal judgement relating to an event in which one of his employees was killed as a result of a workplace accident in 2008. As the person responsible for the business under the Labour Safety and Health Law in the Republic of China, he acknowledged his negligence and pleaded guilty to the charges. His sentence was, however, suspended and he was only ordered to pay a fine.

The Visa Officer considered the Applicant inadmissible under paragraph 36(1)b) of the Immigration and Refugee Protection Act (IRPA) on the grounds of serious criminality. She found that, since the Applicant had not adopted the safety measures required to prevent the 2008 accident, he had breached his duty, thereby satisfying the elements of the offence of criminal negligence under section 219 of the Criminal Code.

The Court notes that the Visa Officer did not err in her determination of equivalency. She reviewed the foreign and Canadian provisions and correctly applied them to the underlying facts of the Taiwanese offences. She noted that the offences, if committed in Canada, would be equivalent to the duty of a person who supervises work and criminal negligence under sections 217.1, 219 and 220 of the Canadian Criminal Code. These offences, in particular that of showing “wanton or reckless disregard for the lives or safety of other persons” (section 219 of the Criminal Code) are punishable by a maximum term of imprisonment for life.

Though the Applicant contended that “wanton or reckless disregard” requires an element of intention, the Court finds that this is not the case. Thus, his intentions are not to be taken into consideration.

The Court concludes that it was reasonable for the Visa Officer to consider criminal negligence in Canadian law as equivalent to the offence committed in Taiwan. This determination of equivalence was justified, transparent and intelligible, and falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. The application for review is therefore dismissed.

December 23, 2011
MARIE CARMELLE JOSEPH v. Canada (Minister of Citizenship and Immigration)

At issue in this case was the genuineness of a marriage. The Court finds that the panel committed a reviewable error in determining the female Applicant’s credibility and the genuineness of the marriage.

The errors committed can be summarized as follows: First, the panel erred in concentrating its analysis initially on some minor or secondary inconsistencies that reached a microscopic analysis. For example, they drew a negative inference and placed too much weight on the fact that the female applicant had different phone numbers and was unable to explain why. Second, and more importantly, the panel noted in its decision that the spouses were incompatible as there was a difference in their religions – one Applicant is Protestant and the other is Catholic.

The Court finds that the panel should not have made such a statement without supporting its finding on the evidence, which it failed to do. The “incompatibility of religions” is completely unsubstantiated and is in fact a mere generalization. As a result of these considerations, the application for review is allowed.

 

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