January 2016

Osba v. Canada, (2016 FC 1294)

Mr. Osba was a permanent resident working on assignment in Libya for the client of a Canadian corporation and was found to be in violation of his residency requirement by both an Officer and the Immigration Appeal Division [IAD] and thus a removal order was issued.

This case concerns whether the IAD’s decision to find Mr. Osba in violation of his residency requirements was reasonable.

In regards to residency requirements as a Canadian permanent resident, the Court highlights that the Immigration and Refugee Protection Act [IRPA] states that “a permanent resident will meet the obligation to reside in Canada if he or she is physically present for at least 730 days during a five-year period... However, that obligation can equally be met if the permanent resident was employed for those 730 days outside Canada on behalf of a Canadian business on a full-time basis”. Moreover, the Court added that the IRPA also states that “a person will be considered to be working full-time for a Canadian business if he or she was assigned on a full-time basis to a client of that business”.

The question facing the Court in this case was: If a permanent resident is employed on a part-time basis abroad by a Canadian corporation, but at the same time employed by a client of that corporation on a full-time basis, does this comply with the residency requirement under the IRPA?

The Court ruled that the IAD’s decision was unreasonable because the evidence submitted to the IAD “clearly showed that Mr. Osba worked full-time, on assignment, for a client of SUBCOE, GOS, from June 2006 to October 2009.”

Furthermore, the Court stated that “working full-time on assignment from a Canadian business for a client of that business qualifies as time spent working for the Canadian business itself.”

The application for judicial review was granted and remitted back to another panel of the IAD for reconsideration of the removal order.

Appidy v. Canada, (2015 FC 1356)

The applicant filed an application for a Post-Graduate Work Permit under the Post-Graduate Work Permit Program (PGWPP), and this application was refused on the grounds that the applicant completed 5 out 6 courses online at Niagara College. The Officer referred to the fact that “the PGWPP provides that students who participate in and complete their program of study by distance learning are not eligible for the issuance of a work permit under the PGWPP”.

This case concerns whether the Officer’s decision to refuse the issuance of a Post-Graduate Work Permit was reasonable.

The facts relevant to this case are that the Applicant was issued study permits authorizing him to study for a one year period in Canada. In this time period, the Applicant completed “a one year program of study at Fanshawe College in Information Security Management, as a result of which he was given advanced standing and completed a two year program in General Arts and Science at Niagara College over the course of one semester”.

The Court found the Officer’s decision to be unreasonable because the Officer based his refusal solely on the studies at Niagara College and failed to take into account the in-class credits earned by the applicant at Fanshawe College.

The Officer relied on the portion of the CIC Manual which states that “Applicants must apply for a work permit within 90 days of receiving written confirmation (for example, a transcript or an official letter) from the educational institution indicating that they have met the requirements for completing their program of study. Calculation of the 90 days begins the day when the student’s final marks are issued or when formal written notification of program completion is received.

The Court therefore ruled it was “not reasonable for the Officer to interpret the CIC Manual as precluding consideration of the credits from Fanshawe College, as those credits formed part of the requirements for completing the Applicant’s program of study at Niagara College. The Officer did not take issue with the timeliness of the Applicant’s application for a Post-Graduate Work Permit following receipt of the requisite confirmation from Niagara College. Therefore, the Officer acted unreasonably in relying on the CIC Manual to assess the application based only on the courses actually taken from Niagara College, rather than based on all credits that contributed to the Applicant meeting the requirements for the course of study the Applicant completed at Niagara College.”

In other words, the Officer had to consider the credits from Fanshawe College which were not obtained via distance learning, because “the credits from those courses formed part of the requirements for the Applicant’s program of study at Niagara College.”

The application for judicial review was thus allowed.

 

February 2016

Stanabady v. Canada, (2015 FC 1380)

An exclusion order was issued against the Applicants because they remained in Canada after their temporary resident permits expired. The Applicants had applied for an extension of their permits before they expired, however, their application was incomplete.

This case concerns whether the decision to issue an exclusion order was reasonable.

The Court found that the decision to issue an exclusion order was reasonable. The Court drew a distinction between extension requests which are refused and extension requests which are rejected as being incomplete. If the extension request is refused, the Applicant has temporary resident status until the decision is rendered. In contrast, if the extension request is rejected as being incomplete, the Applicant possesses temporary resident status until the original permit expires. 

Although the Applicant submitted an application for extension, it was incomplete. The Court therefore found that the Applicant was required to depart Canada. Given that the Applicant did not leave within time, the exclusion order was valid.

The Court found that the decision to issue an exclusion order was reasonable and dismissed the application for judicial review.

Su v. Canada, 2016 FC 51

The Applicant, whose son was 19 years old, submitted an application for permanent residence under the business class category. Given that the Applicant’s son was a dependent child over the age of 18, two forms had to be completed and signed. The forms were not submitted so the application was considered incomplete. Shortly after, amendments to the Immigration and Refugee Protection Regulations [IRPR] changed the definition of dependent children to include children less than 19 years of age (the old regulations included children less than 22 years of age). Although the forms were later completed, the Officer returned the application indicating that the Applicant’s son did not meet the new definition of a dependent child.

This case concerns whether the Officer reasonably applied the new definition of dependent children, which came into effect after the Applicant’s submission of an incomplete application but before the submission of a complete application.

The Court found that the Officer reasonably applied the amended definition of dependent children. The Court pointed out that when an application is incomplete, an Officer does not have the obligation to process it because it no longer exists. The application is thus not “immune from the impact of regulatory changes that come into force before the application is perfected”.

The Court denied the application for judicial review.

 

March 2016

Dhaliwal v. Canada, (2016 FC 131)

*Lexbase note: Landmark case

The applicant’s Federal Skilled Worker (FSW) application was refused on the grounds that the applicant lacked the intention to reside outside Quebec. The applicant was completing her PhD at McGill University, living in Quebec with her husband, and the Officer took this to mean that the applicant intended to reside in Quebec.

This case concerns whether the Officer erred in interpreting the Immigration and Refugee Protection Regulations (Regulations) and whether the Officer unreasonably assessed the evidence related to intentions on residence.

Firstly, the Court ruled that the Officer erred in interpreting the Regulations. In his refusal letter, the Officer said the applicant had not taken the “necessary steps” to reside in a province other than Quebec. The court ruled that in the Regulations, there is no requirement for any necessary steps to be taken to prove intention. In fact, the Court goes on to say “Until CIC actually takes issue with an applicant’s intentions, a simple confirmation in the immigration application package is sufficient to evidence an intention to settle in a province other than Quebec, as is evident from the contents of the required FSW immigration forms”. In other words, there are no supporting documents required to demonstrate intent.

Moreover, Court took issue with the fact that the fairness letter mentioned the Applicant did not intend to reside outside Quebec if the visa were granted “in the next few months”. In its ruling, the court stated that “there is, however, no requirement for immediate residence in Canada (in a province other than Quebec) under the Act. As long as the Applicant lands in Canada before expiry of the immigrant visa, the Applicant can, after becoming a permanent resident, reside anywhere for the first three years – whether in Quebec, or indeed, outside Canada, and still meet residency requirements.”

Secondly, the Court ruled that the Officer unreasonably assessed the evidence related to the applicant’s intention on residence. The Court stated that the applicant provided ample and highly credible evidence to support her intentions to reside in the province of Ontario, notably because her family resided there, and she did not speak French, thus job prospects were brighter outside Quebec.

Furthermore, the Court stated “the fact that the Applicant is studying in one province does not denote an intention to settle there permanently”. In other words, just because an applicant is studying in a specific province, the Officer should not assume the applicant’s intention to reside in that province permanently.

The application for judicial review was therefore allowed, and the matter to be redetermined by a different Officer.

 

April 2016

Balepo v. Canada, (2016 FC 268)

The Principal Applicant submitted an application for a study permit which was refused by an officer on the grounds that he “was not satisfied the Principal Applicant would leave Canada at the end of his authorized stay.” The factors the Officer based this decision on were the Principal Applicant’s strong family ties to Canada as well as his limited financial ties to Nigeria.

This case concerns whether the Officer’s decision to refuse the issuance of a study permit was reasonable.

The Court ruled that it was unclear how the Officer came to the conclusion that the applicant had strong family ties to Canada. The court acknowledged the presence of the applicant’s mother and sibling residing in Canada, but also noted that the applicant’s father and three siblings resided in Nigeria, as well as two siblings living in the United Kingdom. Thus, the Court concluded that “while the picture is one of a family that is somewhat dispersed, it does not support the combined conclusion of strong family ties to Canada and limited remaining family ties to Nigeria.”

In other words, the presence of a parent and sibling in Canada does not necessarily imply strong family ties to the country, when several other family members live in the applicant’s home country and abroad.

On the issue of limited financial ties to Nigeria, the officer only considered the applicant’s pay slips and bank statements which showed “limited income”, however disregarded his stock and real estate holdings. The Court ruled that by not mentioning the applicant’s stock and real estate holdings in Nigeria in his decision, the Officer overlooked this evidence and his finding of limited financial ties to Nigeria was not reasonable.

Therefore, the Court ruled that the decision to refuse the issuance of the study permit was not reasonable, and the application for judicial review was allowed.

Kwong v. Canada, (2016 FC 179)

The applicant submitted a request for a Temporary Resident Permit (TRP) in order to visit his elderly mother in Canada and the request was denied based on the finding the applicant was inadmissible to Canada. The inadmissibility finding was based on a 1999 permanent residence application where the applicant was found “inadmissible to Canada on grounds of criminality and involvement with organized crime”.

This case concerns whether the applicant could be found inadmissible based on the 1999 permanent residence application.

The applicant submitted that the criminality finding in 1999 should no longer apply because the “keeping a common bawdy house is no longer an offence in Canada”.

The Court ruled that the applicant could still be found inadmissible to Canada because while the “criminality finding is completely based on the bawdy house finding,…the organized crime finding is, at best, only partially based on that fact.” Thus, the Court ruled the applicant’s involvement with organized crime still stood. The Court’s reasoning for this was that the keeping of “bawdy houses” was not a crime in Canada, however it still involved “the applicant's association with broader criminal organizations”.

Therefore, the applicant could still be found inadmissible to Canada based on the 1999 decision.

Ahmed v. Canada, (2016 FC 197)

The applicants submitted an application for a Labour Market Impact Assessment (LMIA), and the Program Officer refused the issuance of a positive LMIA. On the day the applicants submitted their application, the Working in Canada website changed the wage from $27.97/hour to $31.25/hour, for the NOC category the applicants were applying under. The applicants included the rate of $27.97/hour on their application.

This case concerns whether the Officer’s decision met the degree of procedural fairness, given the wage change on the Working in Canada website the day the application was submitted.

The LMIA application was rejected “because the Application did not demonstrate that the Applicants had made sufficient efforts to hire Canadians in the stated occupation; and, the employment of the foreign national in the described occupation was not likely to result in the filling of a labour shortage.”

The Court ruled that an applicant is owed a relatively low degree of procedural fairness in assessing a LMIA application. That being said, the Court examined whether the changes to the prevailing rate significantly breached the Officer’s duty of procedural fairness.

The court ruled that the applicants had an obligation to demonstrate that they were making sufficient efforts to find Canadian citizens or permanent residents to fill the vacant position, until the actual issuance of a positive LMIA. Moreover, the court stated that it would be contrary to the object of the Temporary Foreign Worker Program “to find that a LMIA applicant would not have to assure that the rate advertised in their advertising is at least the same as the prevailing rate for the occupation in the specified region.”

The court did acknowledge that “the timeline in respect of the prevailing wage was problematic”, however, there were a number of vague and incoherent factors on the application, including insufficient recruitment efforts to hire Canadian citizens or permanent residents and insufficiently demonstrating the worker shortage in the particular occupation. The court ruled that these factors significantly outweighed the “issue of procedural fairness”.

Thus, the degree of procedural fairness was not breached and the application for judicial review was dismissed.

Babic v. Canada, (2016 FC 174)

The applicant submitted an application for a positive Labour Market Impact Assessment (LMIA) “under the Temporary Foreign Worker Program in order to fulfill a position he had for a carpenter/welder” and the Program Officer denied the issuance of this positive LMIA. The officer based his decision primarily on the applicant’s lack of efforts to hire Canadians in the occupation or train Canadians in the occupation.

This case concerns whether the Officer’s decision was reasonable, and whether his decision should be set aside and given to a different officer for redetermination.

The Court maintained the Officer acted reasonably in his decision not to issue a positive LMIA. In its ruling, the Court cited that the applicant relied solely on the lack of responses from job advertisements to demonstrate the labour shortage. Furthermore, the Court pointed out there was no evidence to suggest the Applicant offered to train any of his existing employees, or rather make any general inquiries in the carpentry and welding industries.

Moreover, the Court maintained that it was reasonable for the Officer to conclude that the advertisements made by the applicant were more appealing to welders, than carpenters, when the job was intended to attract carpenters. In addition, the wage offered was insufficient to attract Canadian citizens or permanent residents.

Thus, the court ruled that the discrepancy in the job advertisement, “when combined with other factors, such as the wage rate, it is reasonable for the Officer to have concluded there was insufficient effort made by the Applicant to hire Canadians.”

Therefore, the Officer’s decision was reasonable and the application for judicial review was dismissed.

Parssian v. Canada, (2016 FC 304)

The applicant submitted an application for permanent residence in Canada under the Canadian Experience Class (CEC) and the application was refused by a Case Officer on the grounds that the applicant did not meet the skilled work experience requirements. The Officer refused the application because the applicant was self-employed as an “info system consultant”, for the entire duration of the work experience submitted for consideration.

This case concerns whether the Officer breached his duty of procedural fairness in reaching his decision to refuse.

The Court ruled that “it was reasonable for the Officer to conclude, that the applicant was a self-employed individual during his period of qualifying work experience”. Even though the applicant indicated he was employed by corporations such as Canadian Tire and TD Bank, “who do not hire temporary workers directly themselves”,  the Court deemed it was reasonable for the Officer to conclude he was self-employed as his employment contract with Canadian Tire listed him as “self-employed”. Furthermore, the applicant’s T4 slips indicated his employer as his own consulting agency, bearing the same address as provided by the applicant.

Therefore, the Court ruled that the refusal of the application did not breach the Officer’s duty of procedural fairness, and thus the application for judicial review was dismissed.

Qadeer v. Canada, (2016 FC 285)

The applicants received a letter advising them that their application for permanent residence under the Saskatchewan Immigrant Nominee Program could be refused because the Officer was not satisfied “the Principal Applicant had the English language proficiency to be able to perform the tasks of the occupation in which he had been nominated and therefore was not satisfied that he would be able to become employed in Canada or, if employed, to become economically established.” After additional submissions made by the applicants, the Officer ultimately refused the application for permanent residence.

This case concerns whether the Officer respected the duty of procedural fairness in rejecting the application.

The Court ruled the Officer’s decision in ultimately rejecting the application breached procedural fairness. The Court stated that in the absence of the English language proficiency concern, “the evidence of the job offer and the letter provided by the prospective employer could have been sufficient to support a finding that the Principal Applicant was able to obtain employment and potentially become economically established.”

Therefore, the Officer should have communicated his concerns about language proficiency with the Applicant after receiving the additional submissions, before making his final decision.

The court allowed the application for judicial review, and the application was to be “referred to another visa officer for re-determination.”

Meraj v. Canada, (2016 FC 210)

The application for permanent residence under the Saskatchewan Immigrant Nominee Program was refused on the grounds that the Applicant’s employer was a family friend and was thus not able to provide an impartial assessment of the applicant’s English language proficiency and skills to perform the prospective job.

This case concerns whether the Officer’s refusal to grant permanent residence was fair.

The court ruled that the Officer’s decision was unfair because the Officer owed a duty of fairness to the applicant to make further inquiries to either confirm or deny that the employer’s assessment of the applicant was impartial. Therefore, the Officer’s assessment cannot end simply because the prospective employer is a family friend, in fact the Officer must make “further concerted inquiries” in such a case.

Therefore, the Court ruled that “the decision under review was rendered in breach of a duty of fairness owed to the Applicant” and the application for judicial review was allowed.

Cai v. Canada, (2016 FC 234)

The application for permanent residence under the Canada Experience Class (CEC) stream made by the applicant was refused on the grounds that the applicant did not meet the requirements of the lead statement and a substantial number of main duties “set out in the occupational NOC 6222” category.

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

The Court ruled that the decision was unreasonable because with the exception of one task in the letter of reference, “the requirements of the lead statement and a substantial number of the main duties specified in the NOC appear to be met”. The Court ruled that because the Officer provided no reasons as to why this evidence was not accepted, his decision was unreasonable.

In other words, if a letter of reference appears to meet the lead statement of the occupational NOC, as well as a substantial number of the main duties and responsibilities, and the Officer deems that the applicant does not meet the main requirements under that specific NOC, he must provide reasons for why this is the case.

Therefore, the Court ruled that the Officer’s decision was to be set aside, and the matter referred “back to a different immigration officer for redetermination.”

Odunsi v. Canada, (2016 FC 208)

The application for permanent residence under the Federal Skilled Worker program was refused because the applicant failed to establish a source of available settlement funds.

This case concerns whether the Officer complied with the duty of fairness in making the decision and whether the decision was reasonable.

The applicant submitted bank statements showing very low account balances, and one bank statement showing a large deposit of money at the end of June 2014. The applicant did not provide any explanation letter as to where these funds came from, and provided insufficient clarification for the large deposit of money even after he was sent a letter from the Officer citing concerns about his settlement funds.

The court ruled that the Officer complied with the duty of fairness, as the Applicant was “given the opportunity to explain the source of the funds”. Furthermore, the court stated that the “Applicant is obligated to submit documents that demonstrate he meets the criteria of a skilled worker; he did not do so, even after having been made aware of the Officer’s concerns and being afforded an opportunity to provide further explanation and documentation.”

The court ruled that the Officer’s concerns were reasonable because the “evidence of transactions over a period of two days was insufficient in the Officer’s opinion to prove the Applicant had carried the balance over a reasonable period of time.” In other words, large deposits of money cannot be justified by two days’ worth of detailed transactions.

The Court therefore ruled that the application for judicial review should be dismissed.

Bercasio v. Canada, (2016 FC 244)

The applicants received a refusal by a Citizenship and Immigration Canada visa officer “to grant the Applicant’s spouse, Mr. Escorcia, permanent residence through the spousal class sponsorship application process” because the marriage was deemed not genuine. The Immigration Appeal Division (IAD) then dismissed the appeal made by applicants.

This case concerns whether the IAD’s decision to dismiss the appeal was reasonable. More specifically, whether the IAD erred in focusing on the period of time prior to the marriage, whether there was an error in establishing genuineness of the marriage and whether the immigration history of the sponsored spouse should not have been considered.

The Court ruled that it was reasonable for the IAD to focus on the couple’s activities prior to and at the time of the marriage, rather than focusing on the events that occurred thereafter. In fact, the judge states that “the evidence on how a relationship was initiated, develops, and finally matures into a marriage is less subject” to be manipulated to make a marriage appear genuine. In other words, an officer as well as the IAD can pay particular attention to and inquire about a couple’s activities before the actual marriage.

Furthermore, the Court ruled that it was reasonable for the IAD to conclude the marriage was not genuine because of the various inconsistencies in the couple’s testimonies, including: “inconsistencies about how often the spouses initially spoke in 2008; the three year delay before the Applicant contacted Mr. Escorcia; the Applicant’s need to obtain a phone number when she previously testified that she had Mr. Escorcia’s number; which spouse proposed to the other, in any event over the telephone and before having met personally; the fact the relationship progressed swiftly within six weeks and the marriage occurring within two weeks of the Applicant first meeting Mr. Escorcia; only one family member of either family attending the wedding; and the Applicant returning to Canada the same day as the wedding”. The Court further states that it is the couple’s duty to establish genuineness, implying that it is not assumed.

Finally, the Court stated that “the immigration history of a foreign national is a relevant, but not a determinative factor in assessing whether the marriage was entered into in good faith”. However, given that Mr. Escorcia attempted to move to Canada twice, once on a refugee claim which the IAD questioned, it was reasonable for the IAD to conclude that Mr. Escorcia had “an apparent desire to come to Canada” and his motivation to marry was to obtain status in Canada.

Therefore, the Court ruled the IAD acted reasonably and the application or judicial review was dismissed.

S.S.R. v. Canada, (2016 FC 279)

The applicants received a refusal by a Citizenship and Immigration Canada visa officer to grant the Applicant’s wife permanent residence through the spousal sponsorship process on the grounds that the marriage was not genuine and was entered into solely for the purpose of acquiring status in Canada. The Immigration Appeal Division (IAD) then dismissed the appeal made by applicants.

This case concerns whether the IAD’s decision to dismiss the appeal was reasonable, more specifically, whether the IAD erred “in finding that the marriage was entered into primarily for the purpose of acquiring status or privilege”.

In its ruling, the Court stated that “the Applicant had a serious criminal record that included violent domestic abuse, assault with a weapon, restraining orders and a failed marriage with him remaining estranged from his ex-spouse and children. As the wife similarly claimed to be the victim of a failed marriage caused by her husband’s abandonment, it would seem reasonable that before making a life-long commitment for her and her family, that the Applicant would not immediately be considered a suitable candidate.” In other words, character traits of the spouses, as well as past doings and experiences are subject to scrutiny in assessing the motivation to marry.

The Court also ruled that the IAD was reasonable in rejecting “the genuineness of the spouse’s motivation to marry the Applicant as a means to attain financial settlement and stability for her and her daughters”. In fact, the Court stated that “the evidence strongly supports the conclusion that the Applicant was not in a position to financially settle the family in Canada”. The Applicant did not provide any income tax assessments or letter from employers to substantiate his claims of suitable financial employment. The Court notes that a 2013 Parole Board record for the applicant described him as unemployed and on financial assistance.

Therefore, the Court deemed it reasonable that the IAD concluded that the Applicant’s wife primary purpose for entering into marriage was not financial stability but rather obtaining status in Canada. The application for judicial review was dismissed.

Singh v. Canada, (2016 FC 240)

The Applicant appealed a refusal to grant his wife permanent residence under the spousal sponsorship program to the Immigration Appeal Division [IAD]. This appeal was dismissed by the IAD.

This case concerns whether the IAD was reasonable in dismissing the appeal.

The Court ruled the IAD was not reasonable in assessing the genuineness of the marriage. In fact, the Court stated that the IAD paid a significant amount of attention “on the circumstances of the Applicant’s first marriage, without much attention to the circumstances surrounding his engagement to his current wife and the development of their marital relationship”.

Furthermore, the IAD questioned the genuineness of the marriage because the matchmaker the Applicant approached questioned whether the couple would be a “suitable match”. On this issue, the Court ruled that “there is merit in the Applicant’s arguments that the Board [IAD] may have overlooked nuances about marriage in the Sikh culture, for example relating to whether the marriage between the Applicant and his current wife would be a “suitable match”.

Thus, the Court ruled the IAD’s decision was not reasonable and to be set aside. The application for judicial review was allowed and the matter “remitted to a differently constituted panel of the IAD for redetermination.”

 

May 2016

Le v. Canada, (2016 FC 330)

The applicant submitted a spousal sponsorship application for her husband Mr. Vu, which was refused on the grounds that the marriage was not genuine. The applicant appealed this decision to the Immigration Appeal Division (IAD) and the appeal was also dismissed.

This case concerns whether IAD’s decision to dismiss the appeal was reasonable.

The IAD dismissed the appeal because the primary purpose of the marriage was to obtain status or privilege in Canada, and the marriage was not genuine.

The Court noted that the inconsistent testimonies of both the applicant and Mr. Vu with respect to how the couple met, the genesis of their relationship as well as details about the marriage proposal, were not insignificant or inconsequential. In fact, the Court concluded that the IAD was reasonable in inquiring what happened the day the couple first met and when their romantic relationship started, as these details were relevant. Moreover, these inconsistencies coupled with vague and insufficient information provided by the applicant and Mr. Vu further discredited their respective testimonies.

The Court ruled that the IAD’s decision was reasonably founded based on the inconsistent and insufficient testimonies. Moreover, “the applicant and Mr. Vu’s testimony was not credible”, and thus the marriage was deemed not genuine. The application for judicial review was thus dismissed.

Burton v. Canada, (2016 FC 356)

The applicant submitted a spousal sponsorship application for her husband, Mr. Griffith, which was refused. The Immigration Appeal Division (IAD) then dismissed the appeal on the grounds that the marriage was entered into for the primary purpose of immigration.

This case firstly addresses whether the Visa Officer and the IAD erred in applying the Regulations which were in force at the time of their decisions, in lieu of the Regulations which were in force at the time of the application. Secondly, this case concerns whether the IAD erred in assessing the marriage itself.

The Court ruled that the Visa Officer and the IAD were correct in applying the version of the Regulations that were in force at the time of their respective decisions, as the change in legislation was procedural and not substantive. Thus, the presumption against retrospective application of legislation did not apply.

Moreover, the Court confirmed that “the right to sponsor a family member does not vest, accrue, or begin to accrue until an affirmative decision is made in respect of the application”. Essentially this means that until “a final decision has been made on the application, the applicant simply has potential future rights that remain to be determined”.

The Court then assessed whether the IAD erred in assessing the marriage in this case.

Assessing a marriage under section 4 of the IRPA entails an analysis of two distinct tests, the first being the primary purpose for which the marriage was entered into, and the second being the genuineness of the marriage. The Court cited, Singh v. M.C.I., 2014 FC 1077, and clarified that “the relevant time to assess the marriage’s genuineness is the present, while the relevant time to assess the primary purpose of the marriage is in the past, i.e., at the time of the marriage.”

In its ruling, the Court confirmed that the IAD did not err in dismissing the appeal as the couple did not cohabitate, in fact, the applicant concealed her marriage from her entire family. Consequently, the Court ruled that the “IAD did not err when it concluded that at the time of entering this marriage, the Applicants did so primarily for the purposes of immigration. The decision was reasonable.” As a result, the application for judicial review was dismissed.

 

June 2016

Jian v. Canada, (2016 FC 523)

The Applicant received notice from an officer in Beijing that he had breached his residency requirements and thus, had lost his Canadian permanent resident status. The Applicant then appealed this decision to the Immigration Appeal Division (IAD), and it was also dismissed.

This case concerns whether both the officer and the IAD were reasonable in determining the Applicant failed to comply with the residency obligations under the Immigration and Refugee Protection Act (IRPA).

The Applicant signed an employment agreement with a corporation based out of British Columbia, called Libra, engaged in the rice business. In the five year period since he obtained his permanent resident status, the applicant spent a maximum of 185 days in Canada, and an additional 69 days accompanying a Canadian citizen abroad.

The Applicant sought to bring himself “under the exception of being ‘on assignment’ as provided for in section 61(3) of the Regulations under IRPA”. This section states that to be considered employed on a full-time basis by a Canadian business, the permanent resident must be an employee of that business or under contract, and be “assigned on a full-time basis as a term of employment or contract to … a position outside Canada”.

The determinative question in this case was whether the Applicant was in fact “assigned” to a job in China. The Court highlighted that it had already interpreted the word assignment to mean “an individual who is assigned to a position outside Canada on a temporary basis and who maintains a connection to a Canadian business” (Jiang v. Canada, 2011 FC 349). In other words, to meet the definition of being “on assignment”, the employment outside of Canada cannot be indefinite.

The Court stressed that “the mere signing of the employment document with a Canadian company does not establish that there was, in fact, any assignment”. Furthermore, the Court mentioned the Applicant was residing in China when he was hired for his position with Libra, he did not work for this company in Canada, nor did his employment contract make any reference to being employed in Canada. In fact, the Court mentioned “the position in the employment contract is in China only”.

The Court ruled that both the officer and the IAD’s decisions were reasonable, and concluded that simply being hired by a Canadian business on a full-time basis outside of Canada, is not sufficient to meet the residency requirements for a permanent resident.

Akomolafe v. Canada, (2016 FC 472)

The Applicant submitted an application for a study permit and was refused because the Officer found the source of funds to be ambiguous and the Applicant lacked a genuine intention to study in Canada.

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

Firstly, the Court found that the Officer’s decision to consider the source of funds ambiguous was reasonable. The Court pointed out that the Applicant’s employer submitted a letter indicating it would “financially support the Applicant’s family and studies while the Applicant pursues the 2 year program”. However, the Court asserts that “the letter is written in vague terms and does not indicate how much money it will contribute to the Applicant’s studies or to his family- if at all.”

Furthermore, the Court states that “the evidence provided by the Applicant clearly leaves open the question as to whether the source of the funds is the Applicant’s employer or the Applicant’s personal savings. Moreover, the source of funds emanating from the Applicant’s personal and corporate accounts remains unclear. The Court reminds that a student visa applicant bears the burden of providing a visa officer with all of the relevant information to satisfy the officer that he or she meets the statutory requirements of the Immigration and Refugee Protection Act… (the Act), and the Regulations”. In other words, the documents provided to the visa officer to support proof of funds must be as precise as possible, and it is up to the Applicant to prove to the visa officer that he or she will be financially supported while studying in Canada, as well as the source of these funds.

The Court also found that the Officer’s decision to consider the Applicant lacked a genuine intention to study in Canada was reasonable. The Court highlighted that “when considering the study permit application, the visa officer must determine whether the applicant is likely to return to his or her country of origin after their studies”.

The Court found that the Applicant’s affidavit regarding the purpose of the study permit was vague. The affidavit cited the Applicant’s desire to study at Centennial College “to develop his “analytical, organizational and management skills” and that “studying in Canada will also help me to develop the skill needed to deal with ever-changing Business World.”

Furthermore, the judge ruled that “it was entirely open to the Officer to make a finding to that effect. The Applicant is a mature 37 year old adult who appears to be well-established at his place of work as a head business analyst and personal assistant to the Managing Director. He plans on returning to the same position following his studies with the view of eventually establishing a consultancy firm to advise companies on business development. I would presume that the Applicant already possesses the requisite analytical, organization and management skills to carry out his functions in his current position. It was therefore entirely open for the Officer to find that the Applicant did not sufficiently articulate the specific benefits to be accrued for his current position, thereby putting into question the genuineness of the Applicant’s intention.” Thus, at a mature age, it would be favorable for an applicant to articulate why studying in Canada would be beneficial to his or her employment upon return to the home country.

Upon consideration of all the aforementioned factors, the Court found the Officer’s decision to be reasonable and dismissed the application for judicial review.

Chhetry v. Canada, (2016 FC 513)

The Applicant submitted an application for permanent residence under the Federal Skilled Worker category, under the university professors and lecturers NOC classification. The application was ultimately refused for misrepresentation, after the Officer consulted the Applicant’s Facebook profile.

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

The Court ruled that the Officer’s decision was not reasonable, not because he consulted the Applicant’s Facebook profile, but because he disregarded additional documents that were provided following a procedural fairness letter.

The Applicant failed to list all of his employment history on his initial application, and received a procedural fairness letter from the Officer stating that open source information suggested that he was in fact employed at Jet Airways. The applicant subsequently provided his employment contract with Jet Airways, and a letter from the same managing director who signed the employment contract confirming he was in fact employed for a two year period. The Officer ultimately refused the application for permanent residence citing the duration of the Applicant’s employment at Jet Airways was unclear and conflicted with his occupation of the primary NOC he was applying under.

In its ruling, the Court stated that “an applicant’s Facebook page may give rise to a legitimate concern as to the accuracy of the information provided in an application.  However, when this concern has been put to the applicant and the applicant provides an explanation supported by documentary evidence from his employers corroborating his employment for the periods he claims, the explanation and evidence must be considered.”

In other words, an Officer can verify the accuracy of the information provided in an application with the applicant’s Facebook profile. Furthermore, the Court confirms that it is possible for a legitimate concern to arise if a discrepancy is found on the Facebook profile.

Thus, the Court allowed the application for judicial review citing “the Visa Officer’s apparent misapprehension or ignorance of some of the evidence seems to have led to a view that there was a conflict in the employment documentation”, when in fact, there was not.

Singh v. Canada, (2016 FC 509)

The Applicant submitted an application for permanent residence under the Federal Skilled Worker category, which was refused because the Officer was not convinced the Applicant provided sufficient evidence of his work experience as a jewellery appraiser as set out in the Arranged Employment Opinion and believed his offer of employment not to be genuine.

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

Following the Applicant’s initial application, the Officer sent a procedural fairness letter stating that he “believed that the applicant had not provided objective or credible evidence of his experience. The Officer was also not satisfied that the job offer was genuine because of the amount of time the job had remained open and the applicant’s family connections to the employer.” The Applicant responded with a letter affirming his qualifications as well as a letter from his potential employer stating that that “job still remained open for him”.

The Court ruled that the Officer’s decision that the offer of employment was not genuine was reasonable. The Court mentioned that “the Officer is not bound by the Arranged Employment Opinion” and furthermore found “it would not be consistent with the reasonable employment needs of an employer in a specialized area, such as a jewellery business, to offer employment to a person who has not provided objective evidence of their qualifications and experience and whose personal connection to the business owner appears to be a higher priority than the objective and legitimate needs of the employer and business owner for a qualified jewellery appraiser.”

Moreover, the Court highlighted that a job offer which remains open for an indefinite period of time could call into question the genuineness of the offer, as it did in this case.

Thus, the application for judicial review was dismissed.

Doron v. Canada, (2016 FC 429)

The Applicant submitted an application for permanent residence as a skilled worker though the Express Entry program, which was refused due to incomplete documents, specifically the police certificate from the Philippines.

This case concerns whether the Officer’s decision to consider the application incomplete and ultimately refuse it was reasonable.

After the Applicant received his invitation to apply, he wrote to CIC “stating that…he had uploaded a police clearance from the Philippines issued November 21, 2014 and referred to difficulties obtaining police clearances from Saudi Arabia and the United Arab Emirates.” The Court highlighted that “the police certificate from the Philippines was issued by the National Police Commission [NPC], not the National Bureau of Investigations [NBI] as required by CIC.”

After a request from CIC for more documents including passports, birth certificates and medical information, the application was rejected because it did not meet the requirements of a “complete” application.

The Court found the Officer’s decision to reject the application unreasonable because “in the particular circumstances of this case, the Applicant was not afforded the procedural fairness required to sustain the Officer’s decision.”

The Court stressed that there was no duty for the Officer to “repeat a request for documents that had originally been requested in the checklist”, however, in this particular circumstance, the Applicant was never advised at the relevant time by CIC that he submitted the incorrect police certificate from the Philippines.

Therefore, the Officer’s decision was considered unreasonable and the application for judicial review was allowed.

Panoti v. Canada, (2016 FC 556)

The Applicant submitted an application for permanent residence under the Saskatchewan Immigration Nominee Program which was refused to due misrepresentation of her International English Language Testing System (IELTS) results.

This case concerns whether the Officer’s finding of misrepresentation and subsequent refusal of the application was reasonable.

The Applicant submitted a Test Form Report showing her IELTS test results, however “the Officer was unable to verify her test scores on-line using the IELTS verification system”. The Officer then received an email from the British Council advising him that “the Applicant’s test scores were not authentic because the Test Report Form did not match their records.”

The Officer then sent a procedural fairness letter to the Applicant outlining concerns about the IELTS results, and the Applicant responded with a letter from the British Council confirming her test date and “that the Test Report Form reflected her scores”.

The Officer then proceeded to email this letter received from the Applicant to the British Council, and they responded saying that “the Letter and the Test Report Form were not authentic because they did not match the Council’s records”.

The Court thus ruled that the Officer’s decision to refuse the application because of misrepresentation was reasonable and the application for judicial review was dismissed.

 

July/August 2016

Solopova v. Canada, (2016 FC 690)

The Applicant, a Ukrainian citizen living in Spain with her family, applied for a study permit twice to attend a college in Ontario, and the applications were refused both times on the grounds that the Officer was not convinced the Applicant would leave Canada upon completion of her studies.

This case concerns whether the Officer’s decision was reasonable and whether the Officer was wrong in not asking the Applicant for additional explanations before making a final decision.

The Court found that the Officer’s decision was reasonable as the Applicant did not explicitly show strong ties to Spain, or the Ukraine, leading to the conclusion the applicant would remain in Canada past her authorized stay. The Court highlighted that “a student visa applicant bears the burden of providing a visa officer with all of the relevant information to satisfy the officer that he or she meets the statutory requirements of” the Immigration, Refugee Protection Act [IRPA] and the Immigration, Refugee Protection Regulations [Regulations]. In other words, it is the applicant’s duty to demonstrate they will leave Canada upon completion of their studies, this is not inferred by the Officer.

Moreover, the Court found it reasonable for the Officer to conclude that the Applicant’s previous academic history did not align with her intended field of study in Canada. This, coupled with her previous refusal, demonstrated she was a not a “genuine student”. Therefore, it should be noted that an applicant’s previous academic history is considered to see if it aligns with the intended course of study in Canada.

On the question of whether the Officer erred in not addressing these concerns with the Applicant, the Court ruled the Officer had no such responsibility. In fact, the Court mentioned that “a visa officer’s duty on an application for a study permit is relaxed”. Furthermore, the Court stated that the Officer had no duty to call the applicant and raise his concerns or to even notify her of a negative decision being issued.

The application for judicial review was therefore dismissed.

Ullah v. Canada, (2016 FC 607)

The Applicant’s application for permanent residence under the Saskatchewan provincial nominee class was refused on the grounds that he would not become economically established in Canada. The officer’s reasoning for this decision was that the applicant “lacked the necessary English language skills and work experience to perform the duties of a dishwasher”.

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

The court ruled that the Officer’s decision was unreasonable, as there was nothing in the application indicating that the applicant lacked the necessary skills “to perform the dishwashing job”.

As such, the application for judicial review was allowed.

Fan v. Canada, (2016 FC 696)

The applicant’s permanent residence application was refused on the grounds that she had submitted a fraudulent Arranged Employment Offer [AEO]. The applicant was found to be inadmissible for a period of 5 years pursuant to the Immigration and Refugee Protection Act.

This case concerns whether the Officer’s decision to refuse the issuance of a permanent residence visa was reasonable.

The facts relevant to this case are that the applicant is a Chinese citizen who graduated from a Canadian university and was offered a position with New Can Consultants, a company operated by a Mr. Wang. Moreover, the New Can Consultants assisted the applicant with her immigration paper work, and obtained a positive AEO. The offer from New Can Consultants as well as the positive AEO were submitted as part of her application for permanent residence.

The officer issued the applicant a procedural fairness letter after noting that the Applicant “had hired a ‘ghost consultant’ (Mr. Wang) for immigration proceedings”, and based on seized documents, many of Mr. Wang’s clients “were involved in falsified employment records and related fraudulent activities”. In fact, Mr. Wang had been previously charged with 12 counts under the Immigration and Refugee and Protection Act, the Criminal Code and the Income Tax Act for various immigration related frauds.

The Officer ultimately denied the permanent residence application after the applicant responded to the procedural fairness letter indicating she was unaware the AEO was fraudulent.

The Court ruled that the Officer’s decision was reasonable because the applicant failed to show “any due diligence or provide any other evidence to suggest that she was misled. The applicant had lived and worked in Canada so it was reasonable to expect some caution or inquiry on her part.” Furthermore, the Court concluded that it was reasonable for the officer “to conclude that, at minimum, there was wilful blindness” on the applicant’s part.

The application for judicial review was therefore dismissed.

Iqbal v. Canada, (2016 FC 533)

The applicant was denied a permanent resident visa under the Federal Skilled Worker [FSW] program and was found inadmissible to Canada for five years due to misrepresentation.

This case concerns whether the Officer breached his duty of procedural fairness in reaching his decision.

The facts relevant to this case are that the applicant applied as a “civil engineer” under the FSW program and declared work experience at three different employers, her most recent being Tamizuddin Enterprises. While the application for permanent residence was still in progress, “the Anti-Fraud Unit [AFU] conducted a surprise investigation at the applicant’s most recent employer”. Shortly thereafter, “the applicant received a procedural fairness letter from the Officer, stating that he had concerns that her declared work experience at Tamizuddin Enterprises may be fraudulent.” Moreover, the Officer found that the employment letters from Tamizuddin Enterprises were fraudulent. Upon submission of a letter from the applicant’s direct supervisor stating he was not present when the AFU visited and thus could not provide them with the details of her employment, the Officer made his final decision.

The Court ruled that there was no breach of procedural fairness on the Officer’s part. The Court stated it was “well within the range of possible, acceptable outcomes to find five years of experience as a civil engineer could not be demonstrated on the basis of three reference letters, two of which were suspected of being fraudulent, and nothing else.” In other words, it is the applicant’s responsibility to provide the best possible documents to support his or her work experience.

The Court also noted that even if the applicant’s work experience at the other employers had been genuine, the Officer was still in his right to refuse the application because of the fraudulent documents and misrepresented work experience at Tazimuddin Enterprises.

The application for judicial review was thus dismissed.

 

September 2016

Ogbuchi v. Canada, (2016 FC 764)

The applicant filed an application for a study visa and was refused on the grounds that the Officer was not satisfied he would leave Canada at the end of his authorized stay.

This case concerns whether the Officer’s refusal of the issuance of a study permit was reasonable.

The facts pertinent to this case are that the applicant was accepted for a Post-Graduate Certificate in International Business by the Manitoba Institute of Trades and Technology. In his application for a study permit, the applicant indicated his wife and three children still resided in Nigeria, he was gainfully employed by the same company for over a decade and his employer expected his return upon completion of his studies. The Officer concluded he was not convinced the applicant would return home.

The Court ruled that the Officer’s decision “lacked justification”. “Specifically, the Officer did not offer any explanation as to why he found the Applicant’s program of study in Canada to be inconsistent with his previous education and employment history. The Court continued to state that it was unclear, from the Officer’s vague reasons, how the applicant’s educational and professional background were inconsistent with his program of study in Canada, and how this led to the conclusion he would not leave Canada after his authorized stay.

Therefore, the application for judicial review was granted and the matter was sent back to a different officer for determination.

Lamsen v. Canada, (2016 FC 815)

The applicant filed an application for permanent residence under the Federal Skilled Worker [FSW] class, and was refused on the grounds of misrepresenting her work experience.

This case concerns whether the Officer’s decision to make the misrepresentation finding was reasonable.

The facts pertinent to this case are that on her Generic Application Form, the applicant applied under the National Occupation Classification [NOC] 3011 – as a Nursing co-ordinator or supervisor. She indicated she had over 4 years of full-time work experience as a Head-Nurse, beginning in April 2010. A few months later, the applicant got married and added her husband as a dependant on her application. “As part of the supporting documentation for that update, the Applicant completed a ‘Spouse/Partner Questionnaire’”, in which she indicated she met her husband right before she got promoted to the Head Nurse position in April 2012. The Officer called the applicant’s employer to verify the information, and the human resources director said that the applicant only started working at the hospital in April 2012 as Head Nurse, but was not employed by the hospital as a staff nurse prior to that. Shortly after the applicant received a procedural fairness letter, the human resources director at the hospital provided a letter to the Officer indicating there were errors in the record keeping system at the hospital, and in fact the applicant was employed as a staff nurse from April 2010 and was then promoted to Head Nurse in April 2012.

The Officer then refused the application for misrepresentation.

The Court found the Officer’s decision was unreasonable because it did not consider “the totality of the application”. The Court highlights that the Spousal Questionnaire correctly detailed her employment positions and this was confirmed by supporting evidence. Furthermore, the Officer did not consider this, but based his misrepresentation finding solely on the Generic Application Form.

The Court highlights that “a visa application must be considered in its totality” and findings of misrepresentation are not to be taken lightly.

The application for judicial review was granted.

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