JANUARY 2015

Burra V. Canada (2014 FC 1238)

This case concerns the judicial review of the refusal of an application for permanent residency due to the applicant’s child declared medically inadmissible.

The child was diagnosed with Autistic Spectrum Disorder (ASD) and it was determined that the child was likely to cause an excessive burden on health and medical services in Canada.

The Fairness letter issued by the Minister of Immigration provided the applicant with the opportunity to provide additional information. The fairness letter advised the applicant of the possibility of inadmissibility under health grounds. The letter provided the opportunity to present a “reasonable and workable plan, along with the financial means” demonstrating how the presumed excessive demand on health and medical services in Canada would be minimized. Based on these facts, satisfying the condition that the letter must provide the applicant the opportunity to respond to the concerns of the medical Officer.

1) the officer’s concerns regarding medical inadmissibility due to the reasonable likelihood of excessive demand on social services

2) the particulars of the health condition and the social services the condition would require

3) An invitation to submit additional information regarding the health condition and an individualized plan to ensure no excessive demand would be imposed on Canadian social services.

The applicant failed to provide sufficient information suggesting that she or her husband had offers of employment that would support their capacity to sustain the cost of treatment.

The Minister had also stated that the applicant failed to provide a plan pertaining to the specialized educational needs of the child. The applicant states that no educational plan was provided because she believed that specialized education and care would not be required stating that “her son was the fastest progressing child in his age group.” The absence of medical evidence to support this claim suggests that the applicant did not meet the onus of establishing that the child’s needs would not likely cause an excessive demand on social services in Canada.

The applicant argued that procedural fairness requires that follow-up fairness letters are to be provided in circumstances in which it is apparent that the Applicant has not understood the nature of the information being sought.

The court ruled that the applicant did not provide an individualized plan, as the information that was provided “was contingent and not specific.” Furthermore, the information provided by the applicant was not supported by medical evidence.

The application was dismissed.

Fabbiano V.Canada (2014 FC 1219)

The court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the farm to the public interest in the enforcement of the legislation if the proceedings were halted.” asa H&C considerations.

There was evidence that the applicant had been associated with the criminal organization in the past; however, no evidence existed of the applicant’s involvement in current criminal activities with the organization.

Loss of opportunity to present H&C evidence: The applicant presented to the immigration officer a variety of submissions supporting his H&C application; however, there is no indication that the H&C grounds were taken into consideration by the immigration officer. The factors included that the applicant had lived almost his entire life in Canada, he has four Canadian born children, has maintained steady employment, two of the applicants daughters have “serious medical challenges which would be aggravated by their fathers deportation and his removal would have a seriously adverse impact on his family members.

The applicant lost the opportunity to present further H&C evidence, as upon being referred for an inadmissibility hearing no consideration can be attributed to the applicants H&C factors. Additionally, the applicant would not possess the right to appeal a decision of inadmissibility. The applicant’s opportunity to present H&C information was in 2007 and the officer not considering these factors prejudiced the applicant.

The loss of opportunity to make further submission: The applicant incurred significant prejudice due to the delay in dealing with the decision of the applicant’s admissibility to Canada. The applicant’s submissions were made in 2007 and heard no response from the immigration officer prior to 2013. The court states that the applicant “could have reasonably concluded that his submissions had been persuasive and that he was no longer at risk of removal.” Furthermore, “issuing a decision in 2013 relating to his admissibility to Canada based on information fathered in 2007 clearly prejudiced the applicant.

Abuse of Process and Stay of Proceedings:

The court ruled that the situation resulted in an abuse of process due to the unfairness and a breach of integrity in the justice system. Furthermore, the applicants right to a fair hearing had been infringed upon by the delay and the deprivation of the opportunity to present H&C evidence.

The court declared that a stay should be imposed, as referring the issue back to an immigration officer for proper review of the evidence would only add “further delay, psychological stress and costs.”

Asoyan V. Canada (2015 FC 206) — Additional case

The applicant submitted an application for permanent residency November 16th 2012 and was rejected by the Canadian immigration officer on the basis that she had failed to provide the required documents. This case concerns the judicial review of the decision by the immigration officer and if the officer provided proper notice and meaningful opportunity to respond to the request for information.

This analysis concerns the notion of Procedural Fairness; therefore, the case must assess if the officer breached the duty of procedural fairness owned to the applicant.

The immigration officer states that e-mail correspondence was sent to the applicant on February 14th 2013 requesting additional required documents and information. The GCMS indicates that “there was a gap noted in the Principal Applicant’s personal history.” The application for PR was refused on November 26th 2013, as the Immigration officer states the failure to provide the required documents.

In a situation involving a breakdown of communication by e-mail, “where there has been no indication received that the communication may have failed, the risk of non-delivery rests with the applicant and not with the respondent (Kaur V. Canada).” On March 4th 2013, the applicant inquired with CIC Sydney because she had not received an Acknowledgement of Receipt (AOR) for the application. This demonstrates that the immigration officer had an indication that the request for additional information and documents was not received by the applicant.

Given these circumstances, the court states, “the risk of non-delivery shifted to the respondent,” and therefore; “breached its duty of procedural fairness in refusing the application without making inquiries to ensure that the applicant had received its email requesting additional information.”

 

FEBRUARY 2015

Avouampo v. Canada (2014 FC 1239)

 This is an application for judicial of the decision of a Citizenship and Immigration [CIC] officer dated May 22, 2013 refusing the Applicant’s pre-removal risk assessment [PRRA].

The applicant is a citizen of the Republic of Congo who fears returning to his country of origin due to imputed political opinion and his failed refugee claim. He first came to Canada in 2001 and in 2003 his refugee claim was denied. In response, he submitted a humanitarian and compassionate [H&C] application, and in 2005, he also submitted a PRRA application. His H&C application was approved in principle in 2009, and so processing of his PRRA was suspended. However, the Applicant’s permanent resident status was ultimately denied in 2012, due to a criminal conviction in 2010.

This case involves the issue of whether the Officer breached the duty of procedural fairness by making his decision prior to the deadline given to the Applicant for making PRRA submissions.

On April 30, 2013, the immigration officer advised the Applicant that it was re-opening his PRRA and that he had until May 24, 2013 to send submissions in support of a fairness letter sent to the applicant. Furthermore, on May 22, 2013, prior to the deadline provided to send submissions, the Officer denied the Applicant’s PRRA application. On May 24, 2013, in accordance with the deadline provided by the immigration officer, the Applicant’s counsel sent PRRA submissions on the Applicant’s behalf to the immigration officer.

In his ruling, the judge states, “this Court has determined that a PRRA officer has an obligation to consider all evidence which may affect the determination even after the officer has written the decision, so long as the evidence is received before the applicant is notified that the decision has been made, or before the date on which the applicant has been told a decision will be made”

Suo v. Canada (2015 FC 81)

This case concerns the judicial review of a decision rendered by an immigration officer to reject an application for permanent residence. The basis for the officer’s refusal of the application was the fact that the applicant was unable to provide evidence that his relationship with his non-accompanying wife had been legally severed.

The applicant was seeking to have the decision reviewed based on the belief that the officer unreasonably requested information related to his spouse’s employment (which he submitted was not relevant to the application), that procedural fairness was not accorded in respect of a request for an extension of time to provide materials in respect of his spouse, and that the officer fettered his discretion in refusing to reconsider the application when evidence was provided of the applicant’s divorce.

During the duration of the proceedings, the issue arose as to whether the applicant was required to demonstrate that the relationship was legally severed, when he had indicated that it had broken down “in fact.”

There are different exemptions from the inadmissibility requirement for a “Spouse” compared to a “Common-law partner. “ For example, the inadmissibility requirement for a non-accompanying spouse may be “broken down” either in law (i.e. by a divorce) or in fact (such as to be determined by the circumstances described by the applicant and other evidence in support). However, for a common-law partner, “the focus of the evidentiary inquiry is whether the relationship that is the basis of the marriage has come to an irreconcilable end. The court states that “in my view, the intention of permitting an exemption for a non-accompanying spouse when the relationship has broken down “in fact” is to respond to the situation of the applicant, where the marriage relationship has ended, but the parties have not yet taken the formal steps to obtain a divorce. Therefore, in this situation, “a certain degree of flexibility is required on the part of the officer.”

The court stated that “the officer misinterpreted section 23(b)(i) by limiting its application to marriage breakdowns “in law”, and thus failing to consider the inclusion of the words “in fact” in the administration of the provision. Application allowed.

 

MARCH 2015

Asoyan V. Canada (2015 FC 206)

The applicant submitted an application for permanent residency November 16th 2012 and was rejected by the Canadian immigration officer on the basis that she had failed to provide the required documents. This case concerns the judicial review of the decision by the immigration officer and if the officer provided proper notice and meaningful opportunity to respond to the request for information.

This analysis concerns the notion of Procedural Fairness; therefore, the case must assess if the officer breached the duty of procedural fairness owned to the applicant.

The immigration officer states that e-mail correspondence was sent to the applicant on February 14th 2013 requesting additional required documents and information. The GCMS indicates that “there was a gap noted in the Principal Applicant’s personal history.” The application for PR was refused on November 26th 2013, as the Immigration officer states the failure to provide the required documents.

In a situation involving a breakdown of communication by e-mail, “where there has been no indication received that the communication may have failed, the risk of non-delivery rests with the applicant and not with the respondent (Kaur V. Canada).” On March 4th 2013, the applicant inquired with CIC Sydney because she had not received an Acknowledgement of Receipt (AOR) for the application. This demonstrates that the immigration officer had an indication that the request for additional information and documents was not received by the applicant.

Given these circumstances, the court states, “the risk of non-delivery shifted to the respondent,” and therefore; “breached its duty of procedural fairness in refusing the application without making inquiries to ensure that the applicant had received its email requesting additional information.”

 

APRIL 2015

Karambamuchero v. Canada (2014 FC 1240)

This case concerns the judicial review of a decision rendered by the Immigration officer to refuse the application for a Temporary Resident Visa (TRV). Ms. Karambamuchero is a citizen of Zimbabwe.  She sought the TRV in order to visit her daughter, son-in-law, grandchildren, and son in Canada.  She had visited her children in Canada in 2002, 2004, and 2007.  However, since 2007, she has been refused a TRV four times.  As a result of these refusals, she decided to hire legal counsel to assist her in the most recent application.

According to the letter of rejection, the visa officer checked boxes indicating that in reaching that decision several factors were considered including “your family ties in Canada and in your country of residence” and “purpose of visit.” 

The applicant had provided sufficient evidence contrary to the officer’s conclusion that she would overstay her visit to Canada. The visa officer incorrectly assessed the living situation of the applicant, as “she is not a mere employee; she is a successful business woman.  She has two business bank accounts with balances totaling more than $35,000 USD, and she owns her home and three vehicles.  She has family ties to Zimbabwe.  She lives with her mother and a son.  She has other family in Zimbabwe.”

The officers assessment of the current situation in Zimbabwe is also insufficient, as the visa officer stated that there is a “current unstable situation in Zimbabwe” but it is unclear how or whether that impacts Ms. Karambamuchero. 

The reality is that Ms. Karambamuchero had previously visited Canada when the refugee claims were pending, or had been granted, and then returned to Zimbabwe.  Her daughter entered Canada in 2002 and was granted refugee protection in 2004.  Her son entered Canada in 2008 and was granted refugee status in 2011.  Ms. Karambamuchero visited Canada in 2002, 2004, and 2007.  Therefore, she visited Canada and returned to Zimbabwe at least once and quite possibly twice even after her daughter was granted status.  Therefore, according to the court, “to suggest that she might make a claim for status now, when she did not previously, requires some explanation from the visa officer.  There is none.”

According to the court, considerable deference is to be given to visa officers in making such decisions, “that the duty of fairness lies at the lower end of the scale, and that a court should not parse the wording of decisions too minutely given the nature of the decision and the demands placed upon visa officers.” Nonetheless the court rules that this application must be allowed and the decision set aside “because the decision-making process and accordingly its result does not meet the required standard of justification, transparency and intelligibility.”

In its ruling, the court stated that the decision rests on two observations by the visa officer: The unstable country conditions in Zimbabwe and previous refugee claims by her children.  The court further stated, “Absent some explanation how those country conditions might prompt this business woman to flee her country and leave behind a successful business, a mother, a son, a home, and other family, the conditions alone cannot reasonably support the decision.  Absent some explanation why her children claiming and being granted refugee status in Canada, might prompt her to do likewise when she did not do so in the past, the visa officer’s decision cannot reasonably be supported.” Application allowed.

Mahmood v. Canada (2015 FC 238)

This case concerns the judicial review of a decision rendered by the immigration officer to reject an application for Permeant Residence under the Federal Skilled Worker program. 

The officer’s concern was regarding the genuineness of the birth certificates and that it was believed they were fraudulent.   As the court states, the officer may be correct; however, Mr. Mahmood was never informed of this concern, which arose in the officer’s mind when the copy of the birth certificate was examined” and was never given an opportunity to respond.

The court agreed with the case law that was provided by the applicant supporting the notion, as stated in Hasani v. Canada, that “if an officer has concerns about the credibility or veracity of documents submitted by an applicant, he is under a duty to inform the applicant of that concern and give him an opportunity to reply.” Furthermore, in analysis of the facts, the judge stated that “procedural fairness and natural justice requires a decision-maker who has requested specific information, which has been provided, to assess the application on the basis of the evidence sought and provided, not on an alleged failure to provide evidence that was not sought.”

The officer rejected the evidence tendered without considering it, notwithstanding that she had specifically mentioned that evidence as an example of the type of document she was looking for.  Instead, she rejected the application for the failure to provide documents that had not been specifically requested and without assessing those that were provided as suggested.

According to the court, the officer breached procedural fairness in two respects.  “First, it is evident from the CAIPS notes that the officer’s real concern was the genuineness of the uncle’s birth certificate, but this concern was never squarely put to Mr. Mahmood.  Second, the officer unfairly assessed the application against evidence the officer alleged was specifically sought, but was not.”

In his conclusion, the judge states “ It may be that the document will subsequently not be found to be valid; however, Mr. Mahmood must be given an opportunity, now that he knows the officer’s concerns, to try to address them through whatever other evidence he can offer.” In his ruling the judge stated, “It is appropriate to order that the redetermination of Mr. Mahmood’s application is to be done only with respect to points for adaptability, as the other criteria have never been questioned.  Moreover, that decision is to occur within a period of ninety (90) days from the date of these reasons, after advising Mr. Mahmood of exactly the concerns regarding the evidence tendered of the relationship between his mother and uncle.”

 

MAY 2015

Kokareva v. Canada (2015 FC 451)

This case concerns the judicial review of a decision made by the visa officer to refuse the application for a Temporary Resident Visa. The Applicant is a 78 year-old citizen of Baku, Azerbaijan. She retired from her profession as a Russian language teacher in 2010, but continues to work as a private Russian language tutor.

The applicant applied five times for a visa to visit Canada. Each time, her application was refused. The fifth application, which is the subject of the present judicial review, refused three days later because the Officer was not satisfied that the Applicant would leave Canada at the end of her stay.

In its review, the court had stated “In considering the issue, I am aware that the threshold for reasons is low and that the decision is highly discretionary.”

The court ruled that the decision to reject the applicant for a temporary resident visa was unreasonable. The officer appeared to have failed to consider evidence that was presented by the applicant. The Judge cites how “the applicant disclosed the earlier refusals of her applications for temporary resident visas.” Based on this information the court believes that it demonstrates “she is honest, and yet she apparently is not believed when she says she will return home after her visit to Canada.” The officer also failed to recognize the repeated visits by the applicant to her granddaughter in Russia. The court states that “they show an established pattern of regular returns to Azerbaijan and show that she has close family near her home.” Additionally, the applicant has professional ties to Azerbaijan, which include ongoing work as a tutor, as well as social and family ties, economic ties such as the pension for herself and her husband, thus further emphasizing her connection and desire to return home following the expiration of the temporary resident visa. Application allowed.

Jones v. Canada (2015 FC 419)

This case concerns the judicial review of a negative decision made by the visa officer on an application for permanent residence based on humanitarian and compassionate (H&C) grounds.

The applicant is a 39-year old citizen of Jamaica, who was sponsored to Canada in 1988 by his single mother. On June 28th 1989, the applicant entered Canada as a permanent resident. He became involved in serious criminal activity that included drug trafficking, assault, robbery, dangerous driving, possession of drugs and failure to attend court.

After being found to be criminally inadmissible, the applicant lost his status in Canada and was ordered to be removed on October 28th 2004. In 2006, the applicant obtained a stay of removal; however, the applicant failed to inform the Immigration Appeal Division (IAD) of his new address and therefore, failed to attend the hearing. Later in 2009, his appeal was declared abandoned and further application to have the appeal re-opened was dismissed along with the judicial review of the application in 2011.

In the judicial review decision in January 2011, the court stated that “the applicant would appear to be a strong candidate for an H&C decision.” However, in March 2013, an immigration officer refused the application under Humanitarian and Compassionate (H&C) grounds. The applicant requested that this decision be “reconsidered on the basis of new evidence regarding his support and involvement with his children.” This judicial review involves the original H&C decision and its reconsideration.

The court assessed whether there was a failure by the officer to update evidence on the best interests of the children, and if a breach of procedural fairness occurred when the officer failed to “seek further evidence about the children’s current situation in in light of her conclusions that the evidence was insufficient to demonstrate that the applicant’s removal would jeopardize their best interests.”

In 2012, the applicant was assigned sole care and custody of the children under Peel Children’s Aid Society (CAS)’s supervision, and the court notes that “such an order is only made upon being persuaded that the children were at risk, and that their best interest was best served placing them under the applicants care.” In the decision, the officer gave little weight to these submissions, as they “did not speak to the current status of the children’s care when the matter was heard in June 2013” as the letters were dated April and May 2012.

In Kasiana, the court states, “ fairness imposed a duty on the officer to obtain further information concerning the best interests of the children… there may be occasions where fairness may or will require an officer to obtain further and better information…”

In cases involving the best interests of Canadian-born children, the court expressed the view “that the officer has an obligation to make further inquiries regarding the best interest of the children.” In support of this point the court cites Bassan, where it was stated, “An H&C officer must make further inquiries when a Canadian born child is involved, in order to show that he or she has been attentive and sensitive to the importance of the right of the child, the child’s best interests and the hardship that may be caused to the child by a negative decision.” There should be no doubt that the officer could have asked more questions in order to obtain additional information. It should be considered whether the officer’s decision would have been different had she received additional evidence concerning the nature of the relationship between the parents and their children and that “if full weight is given to such evidence, it could well result in a decision granting permanent residency to the applicant.”

 

JUNE 2015

Mahabir v. Canada (2015 FC 546)

The case concerns the judicial review of a decision made by the IAD in determining the genuineness of a marriage and its primary purpose to be of immigration to Canada. The applicant is a Canadian citizen and it should be noted that at the time of the application she was 31 years old. She is cognitively impaired.

The Applicant and Mr. Boodoo married in Trinidad and Tobago in May, 2010. The Applicant subsequently submitted a spousal sponsorship application as a member of the family class. An immigration officer assessed the bona fides of the marriage and concluded that it was a marriage of convenience and the relationship was not genuine. The spousal sponsorship application was therefore denied. This decision was appealed to the IAD.

The IAD found that the marriage was genuine. However, the IAD also found that the marriage was entered into primarily for immigration purposes, and that this had been coordinated by the Applicant’s parents and Mr. Boodoo’s parents.

Under the current provision, a finding that a marriage is genuine is not sufficient. It is also necessary that the marriage not be entered into primarily for the purpose of acquiring immigration status. The court discusses how for the second condition to be satisfied, the focus must be upon the intentions of both parties to the marriage at the time of the marriage. The court cites Gill in stating that placing the focus on the family’s intentions was unreasonable, as “the parents motivation is not necessarily the same as their sons. Furthermore, in this case, “the couple may well have been pleased with the immigration possibilities arising from the marriage, but that is far from saying that it was their primary motivation. The court further states that “the more compelling the proof that the couple was seeking immigration status, the more likely it will be that the marriage was not genuine.”

In this case, it was clear that the IAD’s focus on the family’s intentions was motivated by the cognitive impairment of both parties to the marriage. However, the IAD did not conclude that both parties were not capable of forming an intention to marry.

The court ruled that “having found the marriage to be genuine, the IAD’s focus on the intentions of the couple’s families to determine that it was entered into primarily for immigration purposes was unreasonable.” Application allowed.

 

JULY 2015

FATMIR QOSAJ ET AL. V. CANADA (2015 FC 689)

In the analysis, the court cites Baker v. Canada where it was stated that the decision maker must adequately consider the best interests of the child. Additionally, Justice Campbell defined the meaning of being “alert, alive and sensitive” to the best interests of a child.

The court states that the word “alert” implies awareness and that a visa officer “must demonstrate an awareness of the child’s best interests by noting the ways in which those interests are implicated. Several examples of factors that applicants may raise, include: the age of the child, the level of dependency between the child and the H&C applicant, the degree of establishment in Canada, medical issues or special needs the child may have, the impact to the child’s education, etc.

The court cites Kolosovs v. Canada, where is it stated that “simply listing the best interest factors in play without providing an analysis on their inter-relationship is not being alive to the factors.” Therefore, the factors must be “considered in their full context and the relationship between the factors and other elements of the fact scenario concerned must be fully understood.”

Citing Mr. Justice Campbell, “in order to be alive to a child’s best interests, it is necessary for a visa officer to demonstrate the he or she well understands the perspective of each of the participants in a given fact scenario, including the child.”

To demonstrate sensitivity, the officer must be able to clearly articulate the suffering of a child that will result from a negative decision and then say whether, together with a consideration of other factors, the suffering warrants humanitarian and compassionate relief. More specifically, Judge Campbell states “it is only after the visa officer has gained a full understanding of the real life impact of a negative H&C decision of the best interests of a child can the officer give those best interests sensitive consideration.”

In this case, there was no balancing of the negative and positive factors as they relate to the best interest of the children. The court ruled that “this was not a proper background for the best interests of the children” review and, as a result, the officer’s decision was unreasonable. Application allowed.

DORIAN KOZOMARA ET AL. V. CANADA (2015 FC 715)

This case concerns the judicial review of a decision by the Immigration officer to deny the applicants Humanitarian and Compassionate (H&C) exemptions regarding their application for Permanent Residence.

The Applicants are a family of Croatian citizens. The father first came to Canada on May 17, 2010, and applied for refugee protection shortly thereafter, claiming that he and his family had been harassed and discriminated against in Croatia because of their ethnicity.

In a decision dated May 7, 2012, the Applicants' claims were rejected by the Refugee Protection Division [RPD] of the Immigration and Refugee Board of Canada, which found that the Applicants were not credible and that the discrimination they feared was not persecutory.

The Applicants’ subsequent application for a pre-removal risk assessment [PRRA] was also unsuccessful, and this Court refused to judicially review either decision.

As the court states, “it is trite law that neither an H&C application nor a judicial review application is rendered moot by the mere fact that a person has been deported.” Furthermore, Subsection 25 (1) of the IRPA can be invoked by a foreign national to “grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this act.”

In this case, as the court states, the primary ground of review relates to the best interests of the child (BIOC) with respect to their education.

The parties agree that there are two issues in this application:

• Was the Officer's determination of the BIOC unreasonable?

• Was the Officer's determination of the issue of hardship, arising from discrimination and harassment in Croatia, unreasonable or wrong in law?

In Kasiana, the court stated “an officer is required to examine the best interests of the child with care and weigh them against other factors. Mere mention that the best interests of the child has been considered will not be sufficient.”

In this case the officer failed to assess the best interests of the applicant’s children. The court stated “it was not reasonable for her to imply that only a complete denial of their education would be relevant to the BIOC, nor to say only that “information has not been provided to support that the Croatian government would fail to secure the BIOC in returning to Croatia with their parents.” Therefore, the officer did not consider whether it might be in the children’s best interests “to stay in Canada with their parents and maintain the status quo.”

The court reiterates that “in order for an officer to be properly ‘alert, alive and sensitive’ to a child’s best interests, the officer should have regard to the child’s circumstances, from the child’s perspective.” The perspective of the child was unreasonably ignored by the officer in this case, as the children submitted letters with the H&C application and the officer failed to even mention these letters. Additionally, dozens of letters were submitted by the children’s teachers referencing the children’s academic achievements and communication skills. The court states once again that the officer did not properly identify and define the BIOC and examine them “with great deal of attention.” Application allowed.

 

September 2015

Huang v. Canada, (2015 FC 905)

*Lexbase note: Landmark case

The applicant’s application for permanent residence under the spousal sponsorship class was refused after the applicant and her spouse were interviewed separately. The Officer based his decision on the inconsistent testimonies throughout the separate interviews and concluded that the marriage was not genuine and was entered into primarily for immigration purposes.

Moreover, the Officer mentioned that the applicant and her spouse did not “share a level of financial and emotional interdependence expected of a genuinely married couple”.

This case concerns whether the Officer acted unfairly in not allowing the applicant to address the inconsistencies in the testimonies.

The Officer noted in his decision that the applicant knew little about her husband’s private and personal life, including his hobbies. Furthermore, this led the Officer to conclude that the relationship was not genuine. In other words, a visa officer is entitled to interview spouses separately and ask questions relating to their hobbies, their economic plans, etc.

The Court however ruled that it was unfair for the Officer not to apprise the applicant “of some of these concerns as they arose and not to offer her a meaningful opportunity to address such concerns.”

Furthermore, the Court ruled that the Officer has a duty to confront spouses with the inconsistencies in their testimonies, because these supposed inconsistencies could just be simple misunderstandings.

The application for judicial review was therefore allowed.

 

October 2015

Gupta v. Canada, (2015 FC 1086)

This case concerns the judicial review of a decision made by a Minister’s Delegate of the Canada Border Services Agency (CBSA) to issue an Exclusion Order to the applicant, who was on a two year work permit in Canada. The Exclusion Order was issued to the applicant following an interview at the border upon return from a trip to the U.S., where the applicant indicated he had violated the terms of his work permit.

The Minister’s Delegate issued the Exclusion Order because he “determined that the applicant was entering Canada to work without first obtaining a work permit, contrary to subsection 8(1) of the Immigration and Refugee Protection Regulations [IRPR]”.

The Court highlighted that subsection 8(1) of the IRPR “’simply requires that a foreign national who enters Canada to work must first obtain a work permit”.

The Minister’s Delegate issued the Exclusion Order because while the applicant’s work permit authorized him to work in Preeceville, Saskatchewan at Chris’ Place as a server, he admitted to living and working in Surrey, British Columbia.

The question before the Court is “whether a person can be found to have entered Canada without first obtaining a work permit (in contravention of section 8 of the IRPR), where they have a work permit, but intended to work in violation of its conditions”?

The Court ruled that it was unreasonable for the Minister’s Delegate to issue the Exclusion Order based on subsection 8(1) of the IRPR because 8(1) merely states that a foreign national who enters Canada to work, must first obtain a work permit. Moreover, it was not reasonable for the Minister’s Delegate to conclude that since the applicant admitted he was not complying with the conditions of his work permit, he was therefore inadmissible with regard to section 8.

In other words, a person cannot be found to have entered Canada without first obtaining a work permit, where they have a work permit, but intended to work in violation of its conditions.

Furthermore, the Court ruled that a situation like this, is “not intended to be dealt with by means of an exclusion order”, but rather any concerns about an alleged violation of work permit conditions should be referred to the Immigration Appeal Division.

Rehman v. Canada, 2015 FC 1021

The applicant applied for a post-graduate work permit [PGWP] and the application was refused on the grounds that the applicant “did not hold a valid study permit at the time of his application and had not continuously studied full-time in Canada, as required by the PGWP program”.

The facts relevant to this case are that the applicant was enrolled in a two-year Business Administration Accounting program. He studied full-time as well as part-time in order to complete his degree, and he did not have a valid study permit at the time he applied for a PGWP.

This case concerns whether the Officer’s decision to refuse the application was reasonable.

The Court ruled that the Officer’s decision was reasonable because the CIC guidelines clearly indicate that “as part of the requirements to qualify for a PGWP, an applicant 1) must have continuously studied full-time in Canada and have completed a program of study that lasted at least eight months, and 2) must have a valid study permit when he or she applies for the work permit”.

Therefore, the Court ruled the Officer acted reasonably because the applicant had not studied full-time in Canada, and did not hold a valid study permit at the time of his application.

The application for judicial review was dismissed.

 

November 2015

Ransanz v. Canada, (2015 FC 1109)

The applicant submitted an application for permanent residence under the Quebec Selected Investor category. This application was refused on the grounds that the Immigration Officer at the Federal stage of the application was not satisfied the applicant had the intention to reside in Quebec, as him and his entire family had been residing in Vancouver for over two years.

This case addresses two questions: firstly, whether the Officer lacked the jurisdiction to refuse the application based on the fact he was not satisfied the applicant intended to reside in Quebec, and also whether the Officer’s decision to ultimately refuse the application was reasonable.

The applicant submitted that “the Officer lacked jurisdiction to refuse the applicant’s permanent residency application, in light of the fact that he had already been selected by Quebec as an investor in the Economic Immigration class, and had not been found otherwise inadmissible”. In other words, in light of the fact that he had already been issued a Certificat de sélection du Québec [CSQ], the applicant had thus satisfied the intention to reside in Quebec.

The court ruled that “the Officer had the jurisdiction to refuse the application on the basis that he was not satisfied that the applicant intended to reside in Quebec”. Moreover, the Court stated that “under the IRPA [Immigration and Refugee Protection Act], it is the federal government who has the final authority to grant permanent resident visas to foreign nationals”. The court is essentially confirming that even after a CSQ has been issued, the Officer still has the authority to refuse the application based on the lack of intention to reside in Quebec.

The Court then had to assess whether the Officer’s decision to refuse the issuance of the permanent residence visa was reasonable. The Court concluded that the decision was not reasonable because the Officer did not consider all of the relevant evidence submitted, namely a trip to Montreal to visit real estate and email correspondence with various schools in Montreal regarding the applicant’s children. Furthermore, the Officer did not give the applicant the opportunity to respond to the credibility concerns he had had about the applicant’s trip to Montreal during the in-person interview.

The application for judicial review was therefore allowed.

Sulce v. Canada, 2015 FC 1132

The applicant submitted an application for a temporary work permit, accompanied by International English Language Testing System [IELTS] results showing skills of an “extremely limited user”, as well as an approved Labour Market Opinion [LMO] submitted by the prospective employer. The application was ultimately refused on the grounds that the applicant’s proficiency in the English language was insufficient to perform the employment duties.

This case concerns whether the Officer’s decision to refuse the application breached procedural fairness.

The Court ruled there was no breach of procedural fairness in regards to the language proficiency findings. The Court highlighted that “it is well-settled that it is up to a temporary work permit applicant to provide all relevant supporting documentation and sufficient credible evidence to satisfy a visa officer that he can fulfill the job requirements.  In other words, it is for the applicant to put his best case forward”. In this case, the applicant submitted IELTS results showing an overall score of 3.5, specifically, 3.0 for listening, 4.5 for reading, 1.5 for writing and 5.0 for speaking. Upon assessment of the job duties as a stucco technician described in the LMO, the Court ruled that the Officer did not breach procedural fairness in concluding “that the Applicant’s knowledge of English was insufficient to allow him to be able to perform these duties/activities.”

Moreover, the Court stated that “a visa officer’s assessment is not limited to the LMO confirmation but extends to assessments of other evidence relating to the particular job being offered, including the LMO application.” In other words, the mere issuance of a positive LMO does not satisfy the language proficiency requirements.

The application for judicial review was therefore dismissed.

 

December 2015

Girn v. Canada, (2015 FC 1214)

The applicant filed an application for a Temporary Resident Visa [TRV] which was refused on the grounds that the applicant did not have sufficient funds to carry out his purpose in Canada, and did not demonstrate he would return to India at the end of his authorized stay.

This case concerns whether the Officer breached his duty of procedural fairness as well as whether the decision to refuse the issuance of a TRV was reasonable.

The Court highlighted that “a temporary resident visa applicant must show a detailed source of his funds. Here, the applicant provided notarized financial documents showing savings totalling approximately $55,000 which included balance certificates, bank statements and fixed deposit receipts. He also presented proof of travel insurance covering up to $50,000 in medical costs and a fully paid return plane ticket. The officer refused his application due to the bank certificates not being supported by any detailed bank statements showing those funds and the origin of those funds.”

The Court ruled that the officer breached his duty of procedural fairness because he failed to communicate these concerns with the client before reaching his decision to refuse. Thus, it is the applicant’s duty to demonstrate a detailed source of his funds when applying for a TRV, but if concerns arise, it is the Officer’s duty to communicate these concerns with the applicant.

Moreover, the Court ruled the Officer’s decision to refuse the issuance of the TRV was unreasonable because the applicant provided “substantial savings in excess of $50,000” and also indicated his father and brother-in-law who resided in Canada would help support him if need be. The Court ruled that because the Officer “ignored” this evidence, his decision was unreasonable.

In addition, it was unreasonable to conclude the applicant would not return to India when in fact “the applicant owned a business in India, had a return ticket to India and had provided a statutory declaration that he would return to India at the end of the authorized stay.”

The application for judicial review was therefore allowed.

Singh v. Canada, 2015 FC 1210

The applicant filed an application for a Temporary Resident Visa [TRV] which was refused because the Officer was not convinced the Applicant would leave Canada at the end of his authorized stay, and was not satisfied the Applicant had sufficient funds to support himself while in Canada.

This case concerns whether the Officer erred in failing to consider the relevant material to the application, and whether he breached his duty of procedural fairness.

Firstly, the Court ruled the Officer made the finding of insufficient funds “without regard to the material at hand”. The Officer considered the applicant’s business Income Tax Returns, which showed limited income, but did not consider his personal bank statements which substantiated the applicant’s ability to support himself in Canada, as well as his family in India.

Furthermore, the Officer cited the fact that the purpose of the applicant’s visit to Canada had passed (Dastar Bandi – a Sikh ceremony), and his travel history indicated he had never travelled outside of India before, leading to the conclusion that the applicant would not leave Canada at the end of his authorized stay.

The Court ruled that “a (compelling) reason to visit Canada is not required in order to issue a TRV. The purpose of the visit is one of several factors that will be considered by the officer in reaching its decision.” The Court did highlight that previous travel history is a good indicator of the applicant’s compliance with immigration laws, however the “lack of travel history as a negative factor” is unreasonable.

In other words, the purpose of the visit to Canada is a factor considered by the Officer, however, this purpose does not need to be compelling. Moreover, lack of previous travel history is not a detriment to the application.

The Court therefore ruled that the decision to refuse the issuance of the TRV was unreasonable, and the application for judicial review was allowed.

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