JANUARY 2014

Fatma Ahmed et. al. vs. Canada (Minister of Citizenship and Immigration)

Judicial Review – Temporary Resident Visa – Not Leaving at the End of Their Stay

This is an application for leave and judicial review filed by a mother and two of her children under subsection 72(1) of the Immigration and Refugee Protection Act [IRPA] against three decisions of a Canadian Visa Officer [Officer] dismissing their applications for a temporary resident visa [TRV] for Canada under subsection 11(1) of the IRPA and section 179 of the Immigration and Refugee Protection Regulations [IRPR].

The principal applicant is married to an international PhD student, Shaban, who studies in Montreal. Shaban received his TRV as a student and applied several times for his wife and children to join him as temporary residents during his studies. These applications were rejected because the Officer was not convinced that the applicants would leave Canada at the end of their stay.

More specifically, after considering the applicants’ ties with their country of residence/citizenship and the factors that might motivate them to stay in Canada, the Officer was not convinced that the applicants meet section 179 of the IRPR and would leave Canada at the end of their temporary residency. He also came to this conclusion after considering the applicants’ travel history, the length of the proposed stay in Canada and their personal assets and financial status.

The Officer did provide reasoning for his decision in in his GCMS notes and the reasons given by the Officer were sufficient. The Officer considered the previous applications and noted that the documented income and financial status of the principal applicant had not materially changed since the previous applications, that the bank accounts showed a rapidly decreasing balance, that the applicants had no previous travel history and that they had failed to demonstrate that they are well established in Egypt or that they have sufficient ties to ensure their return to Egypt. These elements all support the Officer’s decision.

This Court believes that the reasons given by the Officer make it possible to understand why the applications failed and to determine that the conclusion falls within the range of reasonable outcomes.

The application is dismissed.

Fahmeeda Noreen vs. Canada (Minister of Citizenship and Immigration)

Permanent Residence – Saskatchewan Immigrant Nominee Program – International English Language Testing System Scores – Economically Established

A Canadian Visa Officer [Officer] denied Ms. Noreen’s application for permanent residence under the Saskatchewan Immigrant Nominee Program [SINP] despite the fact that she had obtained provincial nomination. The Officer exercised his discretion pursuant to section 87(3) of the Immigration and Refugee Protection Regulations and rejected the application because he was not convinced that Ms. Noreen would become economically established in Canada.

The Officer decided that although Ms. Noreen was nominated by Saskatchewan, creating a presumption that she had the ability to become economically established in Canada, the Officer was not satisfied of that fact.

This determination was based on the fact that Ms. Noreen did not have adequate International English Language Testing System [IELTS] scores to work as a teacher, although her IELTS scores were above the minimum required by Citizenship and Immigration Canada and the SINP. The Officer was not convinced that she would be able to perform the tasks of her intended occupation as an elementary or kindergarten teacher. The Officer also considered her ability to do other odd jobs and determined that the applicant would nevertheless be unable to become economically established.

In response to the officer’s concerns, Ms. Noreen provided updated and slightly improved IELTS scores and a plan for how she would successfully become economically established.  

The Officer did not change the decision. The legislation does not contain a requirement that the person become economically self-sufficient in their qualifying occupation, in this case as a teacher, so it would have been unreasonable for the Officer to have made the decision based solely on that. However, the Officer considered her ability to do other jobs as well. It was not unreasonable for the officer to conclude that engaging in basic odd jobs, likely on a part time or casual basis, is not proof of the ability to become economically established (Manual OP 7b).

Lastly, the fact that she scored in excess of the “minimum” IELTS requirement only shows why she was not immediately screened out. It does not, in itself, establish that she will, or how she will, become economically established.

The application is dismissed.

Maryam Moradi vs. Canada (Minister of Citizenship and Immigration)

Permanent Residence – Federal Skilled Worker Class – Offer of Arranged Employment – Temporary Foreign Worker – International Student – National Occupational Classification

This is an application under subsection 72(1) of the Immigration and Refugee Protection Act [Act] for judicial review of the decision of a Canadian Immigration Offiecr [Officer], which denied an application for permanent residence in the Federal Skilled Worker [FSW] class.

Under the relevant Ministerial instructions, only those with an Offer of Arranged Employment, those legally residing in Canada for at least one year as a Temporary Foreign Worker or International Student, or those who have work experience in certain listed occupations can apply through this program. The applicant applied based on experience as an accountant under National Occupational Classification (NOC) 1111, Financial Auditors and Accountants, which is one of the eligible occupations.

There is no indication that the Officer doubted the validity of the evidence regarding what the applicant’s duties have been in her previous employment; he or she simply did not accept that the duties described brought the applicant with the definition of “Accountant” as described in NOC 1111.

As the decision (including the GCMS notes) makes clear, the application was refused because the applicant did not provide “sufficient evidence that [she] performed the actions described in the lead statement for the occupation, as set out in the occupational descriptions of the NOC …” or that she had “performed all of the essential duties and a substantial number of the main duties, as set out in the occupational description of the NOC.” The Officer found that this was the case because “the duties described in [her] employment letters do not match the occupational descriptions of the NOC.” The Court found these reasons entirely transparent and intelligible, and the decision was reasonable based on the evidence.

The application is dismissed.

Mohammad Javad Khoshnavaz vs. Canada (Minister of Citizenship and Immigration)

Permanent Residence – Federal Skilled Worker Class – Duty of Fairness

The applicant seeks judicial review of the refusal of a Canadian Immigration Officer [Officer] to process his application for permanent residence under the Federal Skilled Worker class.

The duty of fairness only requires disclosure of information to provide an applicant with a meaningful opportunity to fully and fairly present his or her case, and to correct any prejudicial misunderstandings, misstatements, errors or omissions. This duty does not require an Officer to provide an applicant with a review of the weaknesses in his or her application.

In this case, the Court disagrees with the applicant that the decision should be overturned due to an alleged breach of natural justice. As it appears on the record, the applicant was expressly made aware of the Officer’s concerns regarding his contributions to the Social Security Organization [SSO]. In his letter, the Officer also provided notice of his intention to refuse the application if no further evidence corroborating the applicant’s employment references was received. The applicant, however, took no steps to address the Officer’s concerns; the applicant simply replied that he was not obliged to pay social security as he worked on contract for a private company.

It was up to the Officer to weigh this evidence and to make negative findings supported by the evidence. It is not the Court’s job to reweigh the evidence and substitute its decision for that of the Officer.

The Court finds that the evidence on the record reasonably supports the Officer’s finding that the applicant did not provide satisfactory evidence to demonstrate that he had work experience as a Geophysicist. The application is dismissed.

Kuok Mio Iao vs. Canada (Minister of Citizenship and Immigration)

Permanent Residence – Immigration Appeal Division – Sponsor – Humanitarian and Compassionate Considerations

A Canadian Visa Officer denied Ms. Iao’s husband’s application for a permanent resident visa. This application is for judicial review of a decision by the Immigration Appeal Division [IAD] to dismiss Ms. Iao’s appeal of the original decision to deny her husband’s application.

 The IAD’s decision was based on its finding that Ms. Iao is not a sponsor within the meaning of paragraphs 130(1)(b) and 133(1)(a) of the Immigration and Refugee Protection Regulations [Regulations], determining that Ms. Iao did not reside in Canada.

The IAD asked whether Ms. Iao “centralized [her] mode of living in Canada” with the understanding that a strict physical residence test would be too restrictive for a married couple that would want to spend time together.

The factors considered by the IAD in its assessment of whether Ms. Iao was residing in Canada are reasonable in the context of paragraph 130(1)(b) of the Regulations. In brief, those factors require a consideration of the extent of physical presence in Canada prior to sponsoring an application for permanent residence, the extent of physical absences from Canada, the location of immediate family members and dependents, a comparison between the quality of connection to Canada and any connection with another country, and whether the pattern of physical presence in Canada indicates a returning home or merely visiting Canada. The Court finds that each of those factors goes to the heart of the issue of whether a person “resides in Canada,” for the purposes of paragraph 130(1)(b).  

Ms. Iao claims that the IAD made an unreasonable finding of fact with respect to her residence in Canada, specifically in regards to the IAD having assigned negative weight to the fact that her immediate family, including her spouse and most of her dependents, reside in China. However, the Court found that it was not unreasonable for the IAD to conclude that Ms. Iao’s quality of connection to China is greater than it is to Canada based on the evidence: the substantial period of time she spent in China relative to Canada in the past several years; the fact that her business is registered in China; the substantial amounts of money she has in each of her three bank accounts in China; and her inability to explain why she could not find a job in Canada or expand her business in this country. The Court cannot reweigh the evidence that was before the IAD either way.

It was reasonably open to the IAD to consider the evidence the way it has. The conclusion that Ms. Iao does not reside in Canada falls well “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

In addition, although the IAD may have believed that section 65 precluded it from considering Humanitarian and Compassionate [H&C] considerations unless Ms. Lao met the requirements of section 133, it was wrong. However, on a reading of its decision as a whole, the Court is satisfied that this error was not important enough to outweigh the other factors.

The application is dismissed.

 

FEBRUARY 2014

Myrian Rocio Campana et. al. vs. Canada (Minister of Citizenship and Immigration)

Sponsorship Application – Incomplete Application – Regulatory Amendment

The issue in this case concerns whether a sponsorship application was validly made before the Immigration and Refugee Protection Regulations [Regulations] were amended to include section 130(3). The question is whether an incomplete application qualifies as a valid application.

The original application was incomplete as some information was missing and the fees were not fully paid. It was returned to the applicants with instructions to “resubmit” and included the discrepancy in fees paid. It is argued that this not only made the application incomplete, but non-existent before the regulatory amendment.

However, the application was only deemed to be missing fees if the applicant meant to include her three children in her application. The Court accepts that the applicant did not wish to include them. In such circumstances, the only information missing would have been the work history of the applicant.

Section 10 of the Regulations is the only foundation for the statement that the application does not exist unless it is complete, but it does not contain anything explicit in this regard. Section 10 merely states the form and content of an application as well as the required information. It is clear that the application must be resubmitted, but the question is whether it exists before it is complete.

The Court cannot find anything in section 10 to confirm that a lack of compliance results in an application not being in existence. Rather, the section provides in clear terms what an application under the Regulations must contain. However, the fact that an incomplete application may not be processed is different than saying it does not exist. The application is allowed.

Lin Tsungkun vs. Canada (Minister of Citizenship and Immigration)

Permanent Residence – Federal Skilled Worker – Selection Decision – Regulatory Amendment

Mr. Lin Tsung Kun brought an application for judicial review of a decision of a Canadian Immigration Officer [Officer], denying his application for permanent resident status under the Federal Skilled Worker (the “FSW”) class.

An entry had been made in the Global Case Management System (the “GCMS”) signifying that he had met the selection criteria.

However, a selection decision is only an intermediate step in the processing of an application for permanent residence.

Section 87.4, a recent amendment, provides that applications that were undecided prior to March 29, 2012 are automatically terminated and will not be processed. Because the applicant failed to sign a bank draft and only sent another one after March 29 2012, his application was not accepted.

Parliament has jurisdiction over immigration pursuant to section 91(25) of the Constitution Act, 1867 (UK) so it has the authority to enact legislation like section 87.4 regarding immigration and to change former processes and proceedings. 

In this case, the legislation was unambiguous and valid. The Officer used his discretion, as entitled under the Immigration and Refugee Protection Act and Immigration and Refugee Protection Regulations, in deciding not to issue a permanent resident visa. The application is dismissed.

Haibin Wu vs. Canada (Minister of Citizenship and Immigration)

Permanent Residence – Credibility – Interpreter – Best Interests of the Child - Humanitarian and Compassionate Grounds

This application for judicial review concerns a Canadian Immigration Officer’s [Officer] refusal to grant permanent residence to the applicant’s second wife.

The decision not to grant permanent residence was made even though the second wife already had one child and was pregnant again at the time of the interview. There is also evidence that the applicant and his second wife have operated a business together since 2009. Despite this evidence, the Officer reached a negative decision.

The applicant says the negative decision should be reversed because:

  1. The credibility findings were unreasonable;
  2. There was a problem with the interpretation; and

iii.        The best interests of the children were not considered.

However, the credibility findings were not unreasonable as there were many inconsistencies in the evidence given by the applicant. The facts also show there were no problems with the interpreter, but that there was a misunderstanding due to the applicant not wanting to answer certain questions.

In relation to the best interests of the child, the applicant contends that the Officer had a duty to treat the case as if he requested a humanitarian and compassionate [H&C] exemption. This section does not apply because the applicant would have to be inadmissible on other grounds to request an H&C exemption; this was not the case. The application is dismissed.

Branislav Djordevic vs. Canada (Minister of Citizenship and Immigration)

Pre-Removal Risk Assessment – Humanitarian and Compassionate Grounds – Transparent Decision-Making

This is an application to review a negative Pre-Removal Risk Assessment [PRRA] decision.

More than 9 years passed before CIC served Mr. Djordevic with the PRRA Notification. Mr. Dordevic then filed his PRRA application soon after. The decision under review in this case was given more than 21 months later.

During this extended period, Mr. Djordevic filed an application for permanent residence in Canada on humanitarian and compassionate [H&C] grounds. Nearly eight years have passed since it was filed, but CIC has still not rendered any decision on his H&C application. 

Mr. Djordevic submitted a statement that shows that the officer applied an incorrect test while the officer provided no analysis or commentary whatsoever. This Court can only guess which formulation of the test the officer used. This is enough of a reason to set aside his decision as not being transparent or intelligible.

Where officer did assess the evidence, he erred since there was new evidence before the officer regarding whether Mr. Djordevic faces an ongoing threat.

This application must be allowed and Mr. Djordevic’s PRRA application determined by a different officer. Based on the record before this Court, and the fact that Mr. Djordevic has now spent 11 of his 37 years in Canada, it appears likely to be a deserving application.

Harith Ahmad Salahaldin et. al. vs. Canada (Minister of Citizenship and Immigration)

Permanent Residence – Senior Official in Iraqi Government

This is an application for judicial review of a Canadian Immigration Officer’s [Officer] decision to deny the principal applicant’s application for permanent residence pursuant to section 35(1)(b) of the Immigration and Refugee Protection Act, section 16 of the Immigration and Refugee Protection Regulations, and Immigration Manual ENF 18 at section 8.2, category 2. The issue is whether the Officer’s determination that the principal applicant was a prescribed senior official in the Iraqi government was reasonable.

The principal applicant was chosen for a part-time position as the local Project Manager for the Childhood Disability Project [Project]. The Minster of the MOLSA [Minister] and UNICEF personnel supervised the Project. In his role as Project Manager, the principal applicant attended regular meetings with the Minister and his staff and representatives of UNICEF.

The Officer concluded that the principal applicant became a senior official in the Iraqi government as a result of his work on the Project and came to this conclusion largely because the principal applicant met regularly with the Minister. The decision is not reasonable because the evidence shows that the principal applicant’s access to the Minister was only by reason of his part-time position on the Project. He was never a Ministry official. He had no title within the Ministry and his name did not appear on the list of those who held senior government positions, which was prepared by the Government of Iraq after the U.S. invasion in 2003.

The application is allowed.

 

MARCH 2014

Ajjab Khan Afridi vs. Canada (Minister of Citizenship and Immigration)

Temporary Resident Permit – Violence in Home Country – Adoption – The Best Interests of the Child

This is an application for judicial review under section 72(1) of the Immigration and Refugee Protection Act [Act] of a decision made by a Canadian Immigration Officer [Officer] rejecting the applicant’s application for a temporary resident permit [TRP].

The applicant is a three year-old boy living in Pakistan with his aunt, who is a Canadian citizen and his parent according to his birth certificate. His uncle is also a Canadian citizen and lives in Saskatchewan.

The aunt, Ms. Afridi, is sick and would like to get treatment in Canada. However, in order to bring the applicant with her, she needs a visa for him to legally stay in Canada. Ms. Afridi claims that the situation is very difficult in Pakistan and, because of the ongoing violence, she and the applicant are at risk if they stay.

Section 24 of the Act allows an Officer to issue a TRP to an applicant who otherwise does not meet the requirements of the Act, but an Officer’s decision to grant a TRP is highly discretionary.

The OP 20 Guidelines declare that, to issue a TRP, the Officer must be convinced of the existence of “compelling reasons” or “exceptional circumstances.” However, while guidelines are useful, they do not carry the force of law and are not binding.

Adoption does not exist under Pakistani law and legal guardianship is not the same, so the province of Saskatchewan is unable to issue a “no objection” letter required to enable an international adoption. The Officer was not satisfied that the applicant would leave Canada at the end of his stay and concluded that issuing a TRP could violate the Hague Convention. The Officer decided that it would be in the best interests of the child to stay in Pakistan.

The Officer’s decision demonstrates that she did consider the best interests of the child, specifically the separation with his adoptive father, the security situation in Pakistan, and the applicant’s ties with his biological mother and siblings. The Court believes the decision defensible and that they do not need to intervene.

The application is dismissed.                         

Gurjit Singh Virk vs. Canada (Minister of Citizenship and Immigration)

Temporary Work Permit – Basic Communication Skills – Procedural Fairness

This is an application for judicial review by Mr. Virk disputing a decision by a Canadian Immigration Officer [Officer] refusing to issue a temporary work permit. The authorization was denied on the grounds that Mr. Virk did not demonstrate that he adequately met the job requirements of the proposed Canadian employment and that he failed to satisfy the Officer that he would leave Canada at the end of the two-year authorization.

The Document Checklist clearly states that an applicant must provide proof that he or she meets the requirements of the job that is being offered and the Labour Market Opinion clearly stated that the position required basic written and oral English. Yet, the Officer found that Mr. Virk failed to provide enough evidence of his ability to communicate in English, which is a job requirement.

There is no breach of procedural fairness here and it was reasonable that the Officer found an essential aspect of the proposed employment missing.

There is no indication that working in Canada will be important to the applicant in any material way, such as enhancing his career opportunities when he returns to his home country. There is also no evidence that denying the applicant the opportunity for Canadian work experience will cause him hardship.

The application is dismissed.

Surjit Singh Aujla vs. Canada (Minister of Citizenship and Immigration)

Genuine Parent-Child Relationship – Sponsorship Application – Adoption – Reweighing Evidence

The applicant, Surjit Singh Aujla, challenges the finding of the Immigration Appeal Division of the Immigration and Refugee Board (the Board) that he did not establish a genuine parent-child relationship with his adopted 12-year-old daughter. This led to the refusal of Mr. Aujla’s sponsorship application to bring her to Canada.

The Board had numerous concerns about the applicant’s evidence. In the preceding nine years, the applicant’s wife visited the child only twice. Furthermore, the daughter gave minimal detail regarding her future plans in Canada and seemed almost neutral about the relationship. The Board was also concerned about the motives for adoption after the wife’s sterilization. Finally, it also noted the applicant’s lack of knowledge of the daughter’s interests and activities.

The applicant’s arguments basically ask the Court to reweigh the evidence and to replace the Board’s judgment with its own. That is not the role of the Court on judicial review.

The Board had the advantage of hearing all of the evidence and its judgment in relation to it was reasonable. The Board’s main concern was whether there was sufficient evidence to establish a loving, caring and genuine parent-child relationship. Despite the fact that evidence such as newspaper clippings, cards, phone records, money transfers, the fitness of the parents and the general adequacy of the household are relevant, they are far less meaningful to the assessment than the expressions of awareness, affection and future hopes that one would expect to hear. These were found by the Board to be mostly lacking.

The application is dismissed.

Telma Elia Martinez vs. Canada (Minister of Citizenship and Immigration)

Permanent Residence – Family Member of a Protected Person – Dependent Child – Humanitarian and Compassionate Considerations

This is an application for judicial review under section 72(1) of the Immigration and Refugee Protection Act [IRPA] of a decision by a Canadian Immigration Officer [Officer] to refuse the application for permanent residence (APR) of Laura Oristela Ramirez Martinez (Laura). She applied as a family member of a protected person, in this case her mother.

A person seeking to obtain permanent residence must meet certain requirements set out in the IRPA and Immigration and Refugee Protection Regulations [IRPR]. Section 176(1) of the IRPR provides for the possibility of submitting an APR as a “family member.” Section 1(3) of the IRPR, which defines “family member,” includes a dependent child of the person submitting the application. The definition of “dependent child” is found at section 2 of the IRPR and, more specifically, the definition applicable to this case is found at subparagraph 2(b)(iii).

The visa office was notified that Laura was to be treated as a dependant and that she had been included in the APR as a family member. 

The Officer’s decision to deny permanent residence is reasonable because it is based on the evidence that was before her at the time and because it was reasonable not to have considered the best interests of the child in Laura’s case. The Officer concluded that she did not have enough evidence to verify where Laura was living and whether she was financially dependent on her mother. In fact, the applicant was 22 years old when her mother filed her application, was not studying full time, and had not proven that she had depended on her mother financially turning 22. In addition, the Officer examined humanitarian and compassionate considerations, but was not satisfied that such grounds existed.

Laura therefore did not meet the definition of “dependent child” within the meaning of subparagraph 2(b)(iii) of the IRPR or that of “family member” under paragraph 1(3)(b) of the IRPR. 

The application is dismissed.

 

APRIL 2014

Xin Yu, FC 253, March 14, 2014

Federal Skilled Worker – Permanent Residence – Judicial Review – No Selection Decision Made by a Qualified Officer

This case concerns an application for judicial review under section 72(1) of the Immigration and Refugee Protection Act [Act], and section 18.1 of the Federal Courts Act. The applicant is asking that his application for permanent residence in Canada be accepted as a member of the Federal Skilled Worker [FSW] class.

Before March 29 2012, a Program Assistant reviewed the application for permanent residence and assessed it against the selection criteria listed in section 76 of the Immigration and Refugee Protection Regulations. She calculated that the applicant would receive 68 points, which exceeds the 67-point requirement for FSW applicants.

The Federal government amended the Act, adding section 87.4, which terminated FSW applications filed before February 27 2008 unless a Canadian Immigration Officer had determined before March 29 2012 that the FSW selection criteria and other statutory requirements were met. The applicant argued that the Program Assistant’s determination that he would meet the selection criteria was enough to constitute a positive selection decision.

However, Program Assistants do not have the delegated authority to make selection decisions. Only Canadian Visa Officers and Designated Immigration Officers have the authority to make decisions on immigration applications. Therefore, a qualified officer had made no selection decision. In sum, the applicant is not exempted from subsection 87.4(1) of the Act.

The application is dismissed.

Daljeet Kaur, 2014 FC 265, March 19, 2014

Permanent Residence – Skilled Worker Class – Arranged Employment – National Occupation Classification (NOC)

The applicant applied for permanent residence as a member of the skilled worker class after securing an offer of arranged employment. The job was as a bookkeeper, (National Occupation Classification [NOC] 1231).

The applicant had to convince a Canadian Immigration Officer that she had, during her previous employment, “performed the actions described in the lead statement for the occupation as set out in the occupational description of the National Occupation Classification” as is required under paragraph 75(2)(b) of the Immigration and Refugee Protection Regulations

The applicant included only one former position under NOC 1231, but it did not mention any of her duties or responsibilities. She affirms that the officer either failed to consider her personal statement of duties in her application or found her not to be credible. Neither submission is accepted.

A Canadian Immigration Officer must review all the documentation. In this case he did examine the applicant’s summary of work experience. The officer’s determination that the applicant’s statements as to her duties and responsibilities were not adequate was not made unreasonably. Her statement of the duties she performed was insufficient to meet the burden of submitting sufficient evidence to satisfy the officer.

The application must be dismissed.

Quizhen Chen, 2014 FC 262, March 18, 2014

Humanitarian and Compassionate Grounds – Family Class – Best Interest of the Child

Immigration and Refugee Protection Act [IRPA]; Immigration and Refugee Protection Regulations [IRPR]

Relevant Provisions: IRPA 63(1), 65, 67(1)(a)(b)(c)(2), IRPR 117(9)(d).

Chen’s daughter applied for permanent resident status on humanitarian and compassionate [H&C] grounds. She sponsored the application of her daughter, who was listed as a dependent child.

The Canadian Immigration Officer [Officer] denied the daughter’s application because she was omitted from the family class. She was excluded as a result of paragraph 117(9)(d) of the IRPR and because there were insufficient H&C factors in the case to overcome the daughter’s omission as a member of the family class.

The Immigration Appeal Division [IAD] decided it had jurisdiction under paragraph 67(1)(a) of IRPA to determine whether an Officer’s assessment of H&C considerations was performed properly. The IAD found that the Officer had not applied the correct test when assessing the best interests of the child within a judgment of H&C grounds.

The Applicant Minister seeks judicial review of the IAD’s decision to accept the appeal.

The IAD should not have assumed it had jurisdiction over a non-family class H&C matter. The IAD may not consider H&C considerations resulting from an appeal from a family class application unless the applicant is a member of the family class and they have a “sponsor” within the meaning of the class. Without these two conditions, section 65 precludes the IAD’s jurisdiction to deal with H&C considerations.

The judicial review will be granted.

Sunita Fende Mandi, 2014 FC 257, March 17, 2014

Medical Condition – Humanitarian and Compassionate Grounds

The applicant made an application on humanitarian and compassionate [H&C] grounds under section 25(1) of the Immigration and Refugee Protection Act [Act] to receive an exemption from the requirement to apply for a permanent resident visa from outside of Canada. This is an application for judicial review, under section 72(1) of the Act, of the decision of a Senior Immigration Officer [Officer] to refuse the applicant’s application.

The applicant has Lupus and will require ongoing medical treatment to treat it. She has the treatment she needs in Canada where she works and felt she could not go back to Cameroon because her disease could not be treated there. Either way, she could not afford treatment. Unfortunately, she did not provide objective evidence to support this position.

The Officer looked into medical care in Cameroon and found documentation that suggests that most diseases can be treated in Cameroon and that there appears to be public health care. However, there is no cure for Lupus and the applicant’ doctors have told her that she must avoid travelling to tropical areas because of her weak immune system. Nothing in the medical evidence reviewed by the Officer addresses this issue. The Officer should not have disregarded this important aspect of the disease when considering the situation in Cameroon. This could be a life-threatening situation and the failure of the Officer to address it makes the decision unreasonable.

The application is allowed.

Victor Cutberto Ayala Lopez, 2014 FC 261, March 18, 2014

Permanent Residence – Humanitarian and Compassionate Grounds – Exceptional Threshold – Reweighing Evidence

This is the judicial review of a decision denying permanent residence on Humanitarian and Compassionate [H&C] grounds.

The applicants have been in Canada for four years. The parents had jobs, but were replaceable at work according to the Canadian Immigration Officer [Officer]. Only one of their two children was school-aged. The Officer found that the children and parents would be able to adapt in Mexico as they had in Canada. The Officer also considered the best interests of the child, but held that this is only one factor in the analysis of hardship. Based on these factors, the Officer concluded that the applicants’ establishment helped their case, but it was not exceptional – exceptional being the threshold for an application on H&C grounds.

The Officer concluded that there were insufficient H&C grounds to justify approving the permanent residence applications.

The applicants’ real complaint is with the weight the Officer assigned to the evidence and they seek to have this Court reweigh that evidence.

However, this Court cannot and should not reweigh evidence. Section 25 is highly discretionary (an exception to the general rule) and deference is owed to the government’s official, the Officer, who has established a clear and reasonable line of reasoning to justify the conclusion, which itself is reasonable.

The judicial review will be dismissed

 

MAY 2014

Yang v. Canada, 2014 FC 383 

Removal Order- Work permit-Restoration of status “Flagpoled”- Labor Market Opinion (LMO)

This case involves the judicial review of the decision made by the Canadian Immigration Officer to issue a removal order, as it examines the reasonableness of the decision made by the officer and the authorization in law to make such a decision. The applicant is seeking that the removal and exclusion order issued by the Canadian Immigration officer be quashed.

The applicant was legally in Canada, as she possessed both work and study permits. Considering the work permit was approaching the date of expiration, the applicant applied for an extension. A Canadian Immigration Officer advised the applicant that the renewal of a work permit can be a lengthy process and recommended to apply at the port of entry.

The applicant, in taking the advice of the Canadian Immigration Officer, left Canada and presented herself to the United States Immigration Officer. The applicant “flagpoled,” as she then presented herself to Canadian Immigration authorities.

The Canadian Immigration Officers deemed that the applicant had been working in Canada illegally after the original work permit had expired; therefore, the applicant was issued a removal order and was only permitted entry into Canada to purchase a ticket for a returning flight to China.

The initial application for a work permit was denied, as the company had not obtained a Labor Market Opinion (LMO) in order to support the application. Thereafter, upon reception of a favorable LMO, the applicant applied yet again for a work permit as well as a restoration of status. During this time, as the application was being processed, the applicant alleges to have stopped working, as she was not receiving compensation for her employment.

Khooee v. Canada, 2014 FC 279

Federal Skilled Worker- Clerical errors- wrong refusal letter- unclear application assessment 

This case concerns the application for judicial review, as the applicant’s application for a permanent residency as a member of the Federal Skilled Worker (FSW) program was rejected. The applicant possessed sufficient work experience in two eligible occupations and thus claimed qualifying experience in both occupations.

The applicant had identified NOC 0711- Construction Manager, as well as NOC 2151-Architect in her application and was deemed eligible for assessment under the Architect code. A Canadian Immigration Officer had refused the NOC 0711, as the officer stated that the applicant does not meet the occupational description and a substantial number of the main duties of the occupation requested.

The judicial review concerns the concern, of the applicant, that the decision of refusal was founded based on inaccurate assessment of the application due to several clerical errors committed by the Canadian immigration officer. 

The Canadian Immigration Official further erred in assessing the application, as the initial eligibility finding was concluded based on the applicant’s work experience relevant to the other qualifying NOC. The application was once again denied, and the Canadian immigration officer never provided sufficient explanation and no record was indicated. The Canadian immigration officer erred once more, as the dates pertaining to work experience and education were incorrectly assessed.

Considering the significant clerical errors committed by the Canadian immigration officer, it cannot be stated with confidence that the applicant’s file was ever properly assessed, as the decision of the officer is “unintelligible and lacks transparency.”

The court ruled that the application be freshly considered under the instructions as they were in effect on the date the application was submitted. Application allowed.

Liao v. Canada (Citizenship and Immigration), 2014 FC 340 

Non-accompanying minor- Humanitarian and Compassionate grounds- applicant not considered child at time of decision- Insufficient Investigation

This case involves the review of a decision by a Canadian immigration officer to refuse an application based on concluding inadmissibility and dismissing humanitarian and compassionate submissions made on behalf of the applicant.

The Canadian immigration officer refused the applicant for permanent residency because the applicant was not declared as a dependent by her mother upon arrival to Canada; therefore, the only alternative option was to be granted approval based on Humanitarian and Compassionate grounds. This alternative failed as well.

The Canadian immigration officer conducted interviews with both the mother and the applicant. The interview dialogue was examined in order to assess the reasonableness of the Canadian immigration officer’s decision.

Throughout the interview process, the past history was the prime focus of the Canadian immigration officer, as the officer showed interest in the impact the applicant suffered as a child by being left behind and the details of her current living situation.

The Canadian immigration officer’s conclusion did not establish and portray a fundamental understanding of the present and future impact on the applicant of being separated, physically and emotionally, from her mother. Therefore, the humanitarian and compassionate concerns were not addressed in the interview by the officer.

The applicant submitted a plea for humanitarian and compassionate consideration, while still being under 18 years of age. The applicant was not to be considered a child at the time the decision under review was made. However, the court ruled that the officer’s decision was unreasonable, as the Canadian immigration officer erred in posing questions in the interview that would illicit answers to provide a true and clear picture of existing and future humanitarian and compassionate concerns. The court concluded that considering this is the approach that should have been taken to assess the plea, it was unreasonable to make a decision without thorough investigation.

 

JUNE 2014

Mobasher v. Canada (Citizenship and Immigration), 2014 FC 399 

Mandamus- Investment Immigration Program- Backlog- Processing time

This case concerns a judicial review where the applicant is seeking an order of mandamus requiring the Minister of Citizenship and Immigration to process and render a final decision on his application. The significant question presented before the court involves determining whether the processing time of the applicant’s application is reasonable.

In Conille V. Canada, conditions were established regarding the issuance of mandamus and have been applied in this case.

In April 2010, the applicant received a letter from a Canadian Immigration Officer informing him that his application had been received. The letter indicated that the processing period at the time was estimated to be 12 to 18 months but that this was based on the current inventory of applications and that processing times may vary as a result of changes to the inventory.

The current average processing time for federal investor applications is 56 months, according to a Canadian Immigration officer’s affidavit. The applicants delay currently stands at 49 months; therefore, it is in accordance with the processing average.

The Canadian immigration officer attributed the delay and increased inventory of applications to significant factors beyond its control More specifically, the officer noted, the labour dispute resulting in the withdrawal of service by Foreign Service Workers, increased workload due to additional applications from the Islamabad visa office, as well as the spike in applications prior to the regulatory amendments of December 2010.

The circumstances provided serve as a reasonable explanation for the current backlog in processing applicants; therefore, satisfying the third criteria of the Conille test concerning the justification for a delay.

The intervention of the court is not warranted, and would only result in inequitable consequences, as other applications awaiting processing in the queue would be jumped ahead of in order to prioritize the application. Application dismissed.

Chawla v. Canada (Citizenship and Immigration), 2014 FC 434 

Federal Skilled Worker- Fairness Letter- Procedural Fairness- Application inconsistencies

This case concerns the application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, concerning a decision made by a Canadian Immigration Officer in New Delhi, as the officer refused the application for permanent residence due to the Applicants misrepresentation under paragraph 40 (1)(a) of the IRPA.

The applicant applied for immigration in March 2010 under the Federal Skilled Worker (FSW) program. The applicant claimed to have been working since 2003 as a cook at a restaurant in Mumbai. Several inconsistencies arose regarding the applicants application, as the applicant had no training in the occupation stated and the pay stubs submitted were not consistent with the income tax statement; therefore, inquiries were made by the Canadian Immigration Officer to verity his employment.

In order to verify the inconsistent information, a phone call was made by the Canadian Immigration Officer to the restaurant telephone extension provided by the applicant. An employee had answered the telephone call and informed the immigration officer that no one by the name of the Applicant had ever worked at the restaurant and that the restaurant had changed locations about 3 years ago. Concerning the various inconsistencies noted by the Canadian Immigration Officer, the applicant was then put on notice of the adverse information and provided with the opportunity to respond.

The “fairness letter” that was sent to the applicant did not provide information concerning the interview with the restaurant employee; therefore, the applicant provided supplemental information in response to the concerns outlined in the letter, rather than addressing the inconsistencies pertaining to the file.

The applicant was not provided substantial information relating to the concerns and inconsistencies of the Canadian Immigration Officer, thus resulting in a breach of procedural fairness.

The court ruled that the Canadian immigration officer erred by not providing the extrinsic information to the applicant, as had these concerns been divulged, the applicant would have had the opportunity to respond to the concerns. Application granted.

Virhia v. Canada (Citizenship and Immigration), 2014 FC 410 

Federal Skilled Worker- “Relative in Canada” Application inconsistencies- Procedural Fairness

The pertinent issues of the case involve assessing the reasonableness of the Canadian Immigration Officers decision to deny the application for permanent residency under the Federal Skilled Worker program, as well as evaluating the procedural fairness owed to the applicant by the officer throughout the process.

In the application, the Personal Applicant claimed that her accompanying spouse has an aunt or uncle who resides in Canada. The Adaptability factor provides additional points towards an application if the requirements are satisfied. The applicant submitted a photocopy of a birth certificate, as well as a photocopy of a Canadian passport to justify the claim of a relative in Canada; however, the information on these identity documents was not consistent.

The Canadian Immigration Officer informed the applicant of the inconsistencies and provided a delay to address these concerns prior to a final decision. The officer concluded that it was doubtful, considering the significance of the discrepancies regarding the inconsistent dates of birth on the documents, that this mistake would remain uncorrected by the applicant. Unsatisfied with the explanation provided by the applicant, the officer concluded that the applicant had not provided substantial and credible information to award additional points under the Adaptability category and thus due to insufficient overall points the application was denied. 

The court ruled that the Canadian Immigration officer had no additional obligation to request additional information from the applicant, as the officer had taken reasonable measures to arrive at the conclusion; therefore, no duty to procedural fairness had been violated. Application dismissed.

Katebi v. Canada, 2014 FC 813

The Immigration and Refugee Protection Act (IRPA) and the Regulations do not mandate or make reference to reconsiderations of refused applications.

The Canadian Immigration Officer had no obligation to notify the applicant of the deficiencies in his skilled worker application. The court stated that it was a matter of insufficiency rather than credibility or accuracy, as the immigration officer was not able to make a positive determination based upon the material provided. The immigration officer did state that the verbatim and/or paraphrased NOC diminished the credibility of the provided job description; however, the rejection decision was founded on the insufficiency of the information provided.

The applicant argues that the Canadian immigration officer’s conclusion that he did not satisfy the minimal requirements for the Skilled Worker visa was unreasonable. In order to be awarded points under the work experience factor, it is required that applicants provide a detailed list of duties and responsibilities in order to support the stated work experience. However, the applicant provided insufficient information to support the application, as the application lacked a detailed description of duties and responsibilities. As a result, the application lacked credibility considering the stated work experience could not be sufficiently supported.

Mullu v. Canada (Citizenship and Immigration), 2014 FC 802

The applicant argued the legitimate expectation theory based on the notion that the IAD made a representation to the applicant that future extension of the Temporary Residency Visa (TRV) would be granted.

Significantly noted from the principles of legitimate expectation, “the practice or conduct said to give rise to the reasonable expectation must be clear, unambiguous and unqualified, meaning to the level that had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.”

The conditions to satisfy the claim of a legitimate expectation have not been satisfied. The court ruled that that the IAD statement, based on the applicants evidence of no previous issues with extensions does not satisfy the condition of “clear, unambiguous and unqualified” necessary to argue the presence of legitimate expectation. The applicant is relying on his substantive right to a TRV extension; however, the principle of legitimate expectations “cannot give rise to substantive rights, only procedural ones.”

Nirmal Singh Malhi et. Al. v. Canada, 2014 FC 712

The applicant, a dependent child, was enrolled in a diploma course in India, and the Canadian immigration officer determined that this was classified as vocational school. The immigration officer concluded that the diploma course studied by the applicant was created for those who did not complete their secondary studies.

In order to qualify as a dependent child, according the Immigration and Refugee Protection Act (IRPA) Regulations, it is required that the child is “continuously enrolled in a post-secondary institution and is actively pursuing a course of academic, professional, or vocational training on a full time basis.” This definition presents the notion that vocational school can be a post-secondary school.

The court concluded that the immigration officer erred in assessing the diploma course as not equivalent to post-secondary studies, as the definition of post-secondary does include “vocational” when evaluating educational levels. Therefore, the court ruled that the application should be returned for redetermination with a different officer and must take into account this information.

Sabadao v. Canada, 2014 FC 815

This case concerns the judicial review of a decision rendered by the Canadian immigration officer to reject an application for permanent residency, as the officer concluded there were insufficient humanitarian and compassionate (H&C) grounds to exempt the application based on the requirements.

The officer qualified the applicant’s establishment in Canada as a positive factor and was aware of the difficulties involved in re-establishing in another country. However, the officer concluded that this does not constitute a disproportionate hardship, as applicant still has family living in the Philippines and it is his wife’s country of birth. The weight attributed to these factors cannot be re-assessed by the court.

The applicant was declared inadmissible in 2001, lost his permanent residency status as a result and was ordered deported. Furthermore, the applicant made several additional attempts to alter the judgement; however, they were all unsuccessful. These unsuccessful attempts support the argument that the applicant cannot claim to have a legitimate expectation that he could remain in Canada.

The court assessed if the officer was alert, alive and sensitive to the best interest of the child and concluded that the officer’s decision was not unreasonable. Firstly, the best interests of a child are assessed when a child is under 18 years of age except where there are exceptional circumstances/ The applicant’s child was 19 years of age at the time the plea for Humanitarian and Compassionate grounds was assessed and thus did not satisfy this condition. Furthermore, the officer assessed the exceptional circumstances of the case and concluded that this could not apply, as there was no presence of disproportionate hardship.

The court ruled that the officer did not err in the assessment of the unusual, undeserved and disproportionate hardship that the family would face if the applicant was removed to the Philippines.

 

JULY/AUGUST 2014

Kahlon v. Canada (Citizenship and Immigration), 2014 FC 578

Proof of funds- IRPA- Procedural Fairness

This case concerns the judicial review of a decision made by a Canadian immigration officer to reject an application for permanent residency, as sufficient settlement funds were not provided. The judicial review analyzes the alleged breach of procedural fairness in the immigration officer’s failure to provide the applicant notice of concern.

The applicant signed a statutory declaration that he had $12,000 CAD available at the time of submission; however, bank drafts submitted demonstrated conflicting reports, as they showed $145 of available funds. Therefore, the statutory declaration and the submitted bank drafts presented conflicting reports.

The court concluded that there is no obligation on the immigration officer to give sufficient notice of concerns arising from requirements of the Immigration and Refugee Protection Act (IRPA).

Baptiste v. Canada (Citizenship and Immigration), 2014 FC 584

This case concerns the judicial review of a decision rendered by a Canadian immigration officer to reject an application for permanent residency. The applicant applied for permanent residency on Humanitarian and Compassionate (H&C) grounds following a devastating earthquake in Haiti.

The application included a letter submitted by the applicant stating that she was unable to locate her parents and sister, moreover, one of her sister’s ad fled to the Dominican Republic.

The immigration officer’s decision to reject the application placed significance on the presence of family in Haiti. This demonstrated that the letter provided by the applicant was not considered in the decision to deny the application.

The court ruled that the decision rendered by the Canadian immigration officer was unreasonable due to the failure to adequately consider the letter submitted by the applicant.

Barragan v. Canada (Citizenship and Immigration), 2014 FC 558

The judicial review concerns the applicant’s claim that the Canadian immigration officer erred in the decision to reject the application, as the officer breached the duty of fairness owed to the applicant.

The extrinsic evidence relied upon by the immigration officer to refuse the application was based on independent research. The information obtained was not disclosed to the applicant prior to a decision being rendered by the officer,

Immigration officers are required to consider circumstances related to the hardships presented in this case, how the applicant’s experience being targeted by a Mexican gang related to the hardship the family would experience upon return.

The court ruled that the officer breached procedural fairness by not disclosing the information obtained to the applicants for a response.

Blas v. Canada (Citizenship and Immigration), 2014 FC 629

This case concerns the judicial review of a decision rendered by the Canadian immigration officer to refuse an application for permanent residency.

The Canadian immigration officer refused the application, as the officer concluded it was in the best interests of the child to return to Mexico along with her parents.

The officer has a duty to be sensitive towards the interests of the child and to determine where the best interests lie. In this case, the interests of Isabella are not distinguished from those of her parents and are lost in the consideration of unusual and undeserved or disproportionate hardship.

In failing to consider the possible hardship the applicant would face upon return to Mexico, the officer failed to establish the weight of the applicant’s best interests against other factors. The court states that in this fault, the officer had conducted a reviewable error.

The court ruled that the officer failed to provide any substantive analysis of how the realities would affect the child, contrary to the duties and requirements established for the given situation.

 

OCTOBER 2014

MacDonald’s Restaurant Work Permits

“McDonald was entirely happy with all aspects of their applications and offered the Applicants jobs. It is entirely unreasonable for the Officer to say, on these facts that he is not sure the Applicants meet the requirements when the employer is sure that they do. Without some explanation for the Officer’s Decisions to override the employer on the issue of suitability, this aspect of the Decisions is unreasonable”. 

This case involves the judicial review of a decision rendered by a Canadian immigration officer to reject four applications filed for work permits. Two of the applicants were refused work permits due to the immigration officers ruling that they did not meet the minimum requirements, as they failed to provide sufficient proof of experience for the required job. The remaining applicants were refused due to the immigration officers conclusions that the applicants were not well established in their country. In both situations, the Immigration officer had indicated concerns about returning to Belize. 

Offers of employment had been made to each applicant and positive Labour Market Opinions (LMO`s) were obtained; thus allowing the employers the ability to hire foreign nationals for the positions required. The issue before the court involved if the immigration officer was entitled to evaluate and consider if the applicants obtained sufficient work experience and if such decisions were among those entrusted to the officer. The court ruled that the Immigration officer is ``not in a position to assess their suitability and experience

The applicants had obtained employment offers following review of their resumes, interviews and analysis of past work experience. The Employer was satisfied with the information obtained and thus extended an offer of employment to the applicants. The Immigration officer had not provided additional information and explanation for the ability to override the employer on the issue of the applicant’s suitability. Therefore, the court ruled that the officer’s decisions to override the employer on the issue of suitability are unreasonable. 

The court concluded that the decisions were unreasonable as they “lack justification, transparency and intelligibility.” Application approved.

Priteshkumar Pr Patel et. al. v. Canada 

The risk involved in a failure of communication is to be borne by the Minister if it cannot be proved that the communication in question was sent by the Minister’s officials. However, once the Minister proves that the communication was sent, the Applicant bears the risk involved in a failure to receive the communication. In this case, the respondent has established on a balance of probabilities that the email was sent to the Applicant and that there is no evidence that the email was not delivered (or did bounce back) or otherwise not properly sent”. 

These applications presented for judicial review raise the questions as to which of the sender or the recipient, in the context of email communications between an applicant and a Canadian Immigration officer, must bear the consequences of an email that was allegedly sent but allegedly not received. 

The onus and responsibility is borne by the Immigration officer if it cannot be proven that the communication in question was indeed sent by the immigration officer. Therefore, the onus and responsibility is reversed and borne by the applicant once the Immigration officer is able to prove the communication was sent. 

The court addressed the notion of the balance of probabilities; therefore determining what proof is sufficient to determine that a communication was indeed sent. The court determined that it must have been sent to the address supplied by an applicant by a means capable of verifying that the document actually went on its way to the applicant. This can be established by providing evidence of a printout of the communication along with no indication of non-delivery of the communication. 

The Canadian immigration officer had established on a balance of probabilities that the email was sent to the applicant. The officer provided the court with sufficient evidence to further this claim, as a copy of the sent email along with the correct address of the applicants representative were provided along with no evidence that the communication had not been received. 

The applicants presented cases where the application for judicial review was granted and the responsibility of lost e-mails was place on the Immigration officer. However, and in contrast to the cases presented by the applicants, no fault had been placed on the Immigration officer in this case as proof was sufficient that the email communication had been sent. 

Mr. Patel did not ask the Immigration officer to reconsider the rejection decision of his permanent residency application due to failure to comply with information requested within an e-mail communication he did not receive. Mr. Bhatty did request reconsideration; however, the decision not to reconsider the application was not challenged before the court. 

The court referenced a ruling made by Justice Martineau in Caglayan stating that, “accepting that the applicant is not at fault, it would be highly unfair and unjust today this is visa application file be simply closed and the he suffer unnecessary delays in the treatment of a fresh application.” Furthermore concluding that “there has been no breach of duty to act fairly, I can only urge the Minister to be sensitive to this reality” and therefore asking the immigration officer to reconsider its earlier decision to reject reconsideration of the rejected application. Application for judicial review dismissed.

Lucinda Gabrielle Morgan v. Canada

“Canadian Experience Class- did not meet the burden of proving that her work experience matched the requirements.”

The applicant seeks to set aside the decision rendered by a Canadian Immigration officer for refusing an application for permanent residency under the Canadian Experience Class (CEC). The applicant argues that the immigration officer’s decision to reject the application was unreasonable and that the reasons supporting the refusal were inadequate to support the decision.

This case presents a question before the court concerning the reasonableness of the Immigration officer’s decision to reject the application.  Subsection 87.1(2) of the Regulations establishes the grounds for this situation, as the applicant must prove that the officer “erred in concluding that her employment did not match the lead statement and that she did not perform a substantial amount of the duties of the NOC.” The proof must be sufficient for both requirements; therefore, if either of the Immigration officer’s findings are reasonable the decision must stand.

The Canadian Immigration Officer concluded that the applicant had not performed the duties stated in the lead statement for the selected NOC (1241- Administrative Assistant), as the Officer draws attention to the Applicant’s reference letters that “her responsibility to provide support to the plans and performance teams arose only as required.” This statement contrasts with the lead statement provided for the specific NOC.

Secondly, the Immigration officer assessed the Applicant based on the performance of a substantial number of the main duties pertaining to the selected occupation. The applicant’s primary role at HOOPP involved the “entry and reconciliation of financial data and performed data entry.” The court ruled that the Immigration officer’s decision to conclude that the Applicant had not performed a substantial number of the main duties was reasonable.

The court, concluding on the reasonableness of the decisions made by the Immigration Officer, ruled that the Applicant did not satisfy the burden of proving that the work experience matched the requirements outlined by the selected NOC. Application dismissed.

Rajendra Govind Durve v. Canada

Permanent Resident-retention-ongoing operation in Canada-continuing activities in Canada

The responsibility is on the permanent resident in order to provide sufficient evidence that the business is a Canadian business and meets the requirements of an “ongoing operation in Canada.” The court noted that the requirements to be fully located in Canada does not require that all work and every business decision be made in Canada. However, in order to satisfy this requirement there must be a sufficient connection between the work done abroad and the ongoing operations in Canada.

Based on the travel patterns submitted by the applicant, the court concluded that these patterns do not support the claim that Canada is his home base. Additionally, the applicant had no place of residence within Canada, as the applicant used the name and address of his advisor on his application.

Furthermore, the requirements state that work done outside of Canada is full-time work for the Canadian business and that there is a sufficient connection between the work done outside Canada and the ongoing operations within Canada.

In this case, the court did not need to evaluate the full time work of the applicant, considering a conclusion was drawn that the business was not a “Canadian business.” Regardless of this conclusion, the applicant had not satisfied the requirement of being a full-time employee within the company. The applicant was unable to provide any sufficient link to the operations of the Canadian company. The applicant argued that his unpaid work should qualify as business activities; however, no sufficient evidence was provided in connection to the unpaid consultancy work done for clients.

The applicant provide tax documents; however, in comparing the tax returns to the revenue declared by the business, other sources of income were not explained by the Applicant.

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