JANUARY 27, 2006
Aung v. Canada (Minister of Citizenship and Immigration)
An officer must articulate the reasons for treating application documents as forgeries.
In this case, the document in question, a copy of a warrant, had the seal of the state, official-looking writing and other indicia of "officialdom." The visa officer was therefore wrong to treat the applicant’s warrant as a forgery without explanation. The officer did not have any particular expertise in the matter. If there was a reason to treat the document as a forgery, the officer should have explicitly stated it in his decision.
JANUARY 26, 2006
Pham v. Canada (Minister of Citizenship and Immigration)
The Court will not intervene in visa officers’ finding of a lack of credibility on the part of the applicant where there is reasonable evidence to support such a finding. This is true even where credibility is a determinative issue.
In this case, the visa officer was justified in finding that the applicant’s marriage was not bona fides, due to the applicant’s submission of false marriage photographs. The photos were considered sufficient evidence to establish lack of credibility.
JANUARY 27, 2006
Jeon v. Canada (Minister of Citizenship and Immigration)
Anyone who is in Canada without permanent resident status must accept the risk of losing their Canadian assets if given removal orders. Such orders will not be overturned unless they would cause the applicant undeserved or unusual hardship if they were required to apply for permanent residency from outside Canada. Purchase of a house in Canada made before permanent residency status is granted is a risk that visa applicants must bear.
FEBRUARY 1, 2006
Savard v. Canada (Minister of Citizenship and Immigration)
The applicants’ internet relationship was deemed a genuine conjugal partnership by the Quebec visa officer, but the officer’s decision was overturned due to the lack of reasons provided by the officer for that decision. While the Minister does not deny that the pair may in fact be a couple, they must nonetheless satisfy the criteria for “conjugal relationship” found in the legislation and carry on such a relationship in good faith. On this point, failure to distinguish between evidence from events occurring before the sponsorship application was submitted and after the sponsorship application was submitted (letters, travels and telephone bills) pointed to the visa officer’s inadequate attention on this file. As a result, the couple cannot be considered to satisfy the legislation’s requirements.
FEBRUARY 10, 2006
Shaker v. Canada (Minister of Citizenship and Immigration)
The duty of procedural fairness requires visa officers to inform applicants of incomplete applications and allow them to rectify such situations.
In this case, the officer should have informed the applicant that the evidence he submitted regarding his employment history and proficiency in English was still insufficient even though the applicant had submitted a complete file. Furthermore, the applicant was wrongly given an English proficiency score of 0. This result was an important part of the dismissal of the application. As a consequence, explanations with respect to this part of the evaluation were necessary.
FEBRUARY 14, 2006
Chun v. Canada (Minister of Citizenship and Immigration)
Applicants in violation of immigration rules cannot benefit from discretionary relief that would allow them to violate the spirit of the immigration act with impunity.
Here, the applicants violated the rules of the entrepreneurial category with a sham investment. As a result, their children cannot appeal the removal orders even though individually each child had a positive case. The children are likely to sponsor their parents to stay, and this would go against the spirit of the rules which punish sham investments and allow the parents to benefit while having shown disrespect for the immigration rules. Such relief would make a mockery of the immigration system. As the family was given ample opportunity to present its case, and since the officers were reasonable in their conclusion that the investment was a sham, there was no breach of procedural fairness.
MARCH 9, 2006
Gavino v. Canada (Minister of Citizenship and Immigration)
In assessing the genuineness of a marriage, for immigration and sponsorship purposes, the intention of the sponsored spouse is not the determining factor. Rather, the focus of inquiry should be the marriage as a whole. Consequently, the purpose of the marriage itself should be assessed on the basis of evidence by both spouses. A marriage intended primarily for the purpose of acquiring immigration privileges, even for third parties, will be considered to have been entered into in bad faith and will not satisfy the requirements of the act.
In this case, the spouses had had little contact with each other in the 14 years preceding this application, while one of the spouses was concurrently involved in a relationship with another woman in Canada. The marriage was deemed not genuine because its primary purpose was for the sponsor to gain immigration privileges for his children
MARCH 9, 2006
Sara Apaza v. Canada (Minister of Citizenship and Immigration)
The visa officer’s refusal of the spousal application on humanitarian and compassionate grounds was overruled because the officer’s examination of the genuineness of the relationship had been too “microscopic”. The officer had decided that the marriage was not genuine, even though she had not presented any detailed reasons for doing so, and had focused her examination on such trivial details as the method of transportation used on the applicant’s first date as well as the content of bedside tables. Relevant evidence, e.g. that the applicants cohabited for 2 years prior to their marriage, that they had filed joint tax returns and other such facts were ignored.
MARCH 10, 2006
Singh v. Canada (Minister of Citizenship and Immigration
Where there is no indication that an applicant understands an affidavit he signed pursuant to an application, the visa officer or board may give the affidavit little or no weight in factual disputes. In addition, a Visa Officer may question financial statements submitted by an applicant where the figures therein cannot be satisfactorily explained.
In this case, the court found that the visa officer acted reasonably in determining that the applicant did not meet the entrepreneurial class requirements. The applicant’s lack of: supporting financial documents, explanations for his submitted revenue figure, and knowledge of farming prospects in Canada all showed that the officer was justified in his decision.
MARCH 10, 2006
Chatri v. Canada (Minister of Citizenship and Immigration)
The entrepreneur class requirement of controlling ownership of a business is not satisfied by property held in trust. Legal control, and not merely de facto control, must be established.
Here, the court upheld the visa officer’s decision to reject the applicant’s entrepreneur class application on the grounds that the applicant did not control a share of a business or corporation. Because the applicant’s share of the business was held in trust by her father, she could not be said to control a share of the business. Even if she did in fact vote and control her share, the Court ruled that the officer was justified in following a de jure test of control, in which an officer must determine who has legal, rather than factual, control of an ownership share.
MARCH 14, 2006
Thomas v. Canada (Minister of Citizenship and Immigration)
In order to qualify under the Entrepreneur class, an applicant must manage a qualifying business for at least two of the five years before the application for permanent residence is filed. The term "qualifying business" focuses on the individual's ability to be successful. The definition only excludes a business whose purpose is deriving investment income. The regulation does not address the legal structure of the business, and there is no restriction on the number of operations which may be considered. In other words, an applicant can aggregate the value of several businesses in order to meet the “qualifying business” requirements of the entrepreneur class.
Here, the court found that the officer had erred in not allowing separate business entities operated by the applicant in Ontario to meet the “qualifying business” requirements. The applicant’s businesses had been structured as separate legal entities for tax and other purposes. They could nonetheless satisfy the financial requirements of the entrepreneurial class when combined.
MARCH 15, 2006
Uppal v. Canada (Minister of Citizenship and Immigration)
The substance of a report under section 44(1) of the act is comprised of the facts of an offence that is alleged to have been committed by the individual. The Canadian equivalent can be any federal offence that corresponds to the act in question and is punishable by a maximum term of imprisonment of 10 years. The Minister is free to substitute the equivalent offense with another Canadian offense without affecting the status of the inadmissible applicant. Notice must be given to the applicant of any substitution, in accordance with the duty of procedural fairness. Failure by the applicant to make a timely objection constitutes an implied waiver. Here, the applicant was warned of a substitution and was provided with the legal bases for such a substitution yet did not chose to reply nor did he demand and adjournment. This was deemed a waiver of the right to challenge the substitution of offenses made by the Minister.
MARCH 21, 2006
Saada v. Canada (Minister of Citizenship and Immigration)
All relevant information and evidence likely to assist an applicant by indicating establishment in Canada at a removal hearing on humanitarian and compassionate grounds or other serious proceeding must be considered. In this case, evidence of the applicant's purchase of a business and a purchase of a home are relevant factors that the Board should have considered and addressed. The Board’s decision was thus overturned on the basis of a breach of the duty of procedural fairness.
MARCH 29, 2006
Zhen v. Canada (Minister of Citizenship and Immigration)
Applicants must be provided with “the opportunity to present [their] case fully and fairly." This duty translates into an obligation to give applicants reasonable time to procure documentation needed for interviews. Where financial statements are concerned, 5 years of documentation are generally asked for. Applicants should be afforded a reasonable delay to produce documentation covering longer periods of time.
In this case, a business class applicant had his application rejected by the visa officer after he failed to produce 20 years of financial and tax statements for an immigration interview. However, the court found that the demands of the visa officer had been unreasonable in requesting that two decades worth of financial documents be produces in a few days, including some held by third parties. The visa officer’s decision was overruled and the application allowed.
MARCH 31, 2006
Islam v. Canada (Minister of Citizenship and Immigration)
Where an applicant’s written submissions did not match the applicant’s claims of English proficiency, the applicant was afforded the opportunity of providing language test results obtained on the basis of testing by a recognized institute. A visa officer’s informal writing test administered at an interview does not satisfy this criterion.
Here, the visa officer rejected the application after administering a writing test to the applicant and evaluating the applicant’s English skills as “basic”. The court overturned the officer’s decision because the language test was not administered by an approved organization, and therefore should not have factored into the officer’s decision.
APRIL 11, 2006
Hossain v. Canada (Minister of Citizenship and Immigration)
In certain circumstances, the financial situation of an applicant is relevant to determining whether his presence in Canada would place excessive demands on Canadian social services. This reasoning applies to medical conditions and the need to receive regular medical attention or treatment.
Here, the applicant had been found medically inadmissible on the grounds that his need for costly medication would place an excessive demand on Canada’s social services. However, the applicant was willing to commit to bearing all his medical costs and to not claim money from Canadian health care services. The applicant provided proof of financial means and promised to secure private medical insurance. Moreover, a medical opinion used by the visa officers indicating that the applicant’s requirements for medication would likely decrease was ignored. The Medical Officers and Visa Officer failed to consider the Applicant's offer or personal financial situation. Ignoring this information and the medical opinion rendered the decision of inadmissibility patently unreasonable.
APRIL 24, 2006
Awed v. Canada (Minister of Citizenship and Immigration)
Failure to advise the Applicant of the purpose of the s.44(1) interview constitutes a breach of the duty of fairness.
Here, the court ruled that the visa officer’s failure to advise the applicant as to the purpose of the s. 44 interview prior to the interview violated a duty of fairness. The applicant claims that, had he known the purpose of the s. 44 interview, he would have explained to the officer that he had undiagnosed schizophrenia at the time of his criminal offenses. However, because the visa officer still would not have had the discretion to decide if the applicant’s mental status vitiated his criminal record, the court upheld the officer’s decision to refuse the application.
APRIL 26, 2006
Canada (Minister of Citizenship and Immigration) v. Hamid
A child of a federal skilled worker who applies for a visa, who is 22 years of age or over, and who is considered dependent on the skilled worker at the date of application by virtue of his or her financial dependence and full-time study, but who does not meet the requirements of a “dependent child” when the visa application is determined, cannot be included as part of his or her parent's application for permanent residence in Canada.
MAY 4, 2006
Singh v. Canada (Minister of Citizenship and Immigration)
A common-law relationship, for sponsorship purposes, cannot be legally established if one or both parties continue previous marital relationships. Even the existence of a child does not necessarily indicate a genuine relationship characterized by mutual commitment, exclusivity and interdependence, as required for sponsorship purposes.
Here, the court ruled that the applicant and sponsor were both still involved in previous marital relationships and did not satisfy the requirements for a common-law relationship for sponsorship purposes. First, the principal applicant was still providing financial assistance to a previous wife in India. Second, the sponsor had been married in India while allegedly seeing the applicant and had sponsored another spouse’s entry to Canada. Third, that the applicant and sponsor were parents of a child (born by artificial insemination) was not sufficient to prove the genuineness of a relationship where “mutual commitment, exclusivity and interdependence” were lacking. The officer’s decision not to recognize a common-law relationship was therefore reasonable.
MAY 9, 2006
Umoh v. Canada (Minister of Citizenship and Immigration)
The application on humanitarian and compassionate grounds for a Nigerian native to be allowed to remain in Canada with his spouse had been rejected because the visa officer had found the applicant’s marriage to be not genuine. The applicants had been married in Canada in civil and religious ceremonies. However, interviews with the applicant and spouse presented a number of inconsistencies and evidentiary gaps: discrepancies with respect to their first contact after their initial meeting; absence of correspondence and discrepancies regarding correspondence; insufficient proof of interdependency; inability to recall names of the spouse’s close friends when shown photographs; and inconsistencies in respect of events surrounding the civil wedding. Moreover, it was established that the primary applicant had fraudulently gained entry to Canada.
The court found that there was no duty of fairness owed by the officer to warn the applicant of the inconsistencies, as it is the applicant’s responsibility to ensure that the evidence is put forward in a credible manner. The officer’s decision not to recognize the marriage was not unreasonable.
MAY 11, 2006
Toor v. Canada (Minister of Citizenship and Immigration)
The obligation to confront an applicant with adverse conclusions applies when the conclusions arise from material not known to the applicant. Where the issue arises out of material provided by the applicant, there is no obligation to provide an opportunity for explanation since the provider of the material is taken to know of the contents of the material.
Here, the applicant applied for a visitor visa for the purposes of attending an interview with immigration officers. The visa officer rejected the application, and failed to warn the applicant that the evidence submitted was not sufficient to show a likeliness to return to his home country following the visit. The court found that there was no obligation to advise the applicant of a negative decision.
MAY 15, 2006
Li v. Canada (Minister of Citizenship and Immigration)
The applicant’s business class application was rejected after the visa officer found that he failed to show how he had obtained the seed money for his business. Given that the money in question was the seed money that allowed the Applicant to establish his own business, it was very relevant to the application and the Officer was merely doing her duties when inquiring into the source of the funds. The court therefore found that the visa officer was justified in requesting documents to show how the cash seed money was obtained, and that the 30 days granted to do so was reasonable. There was no breach of procedural fairness
JUNE 5, 2006
Mohamed c. Canada (Ministre de la Citoyenneté et de l'Immigration)
In rejecting the applicant’s marriage as not genuine, the visa officer made an ill-placed statement in regards to the applicant’s status as a single woman and the unlikely possibility that she had genuinely wanted to marry someone she had met only two months prior. However, even though the statement was ill-advised and should not have been made by the officer, the court found
that the statement did not point towards a negative bias on the visa officer’s part, and that a reasonable person examining the evidence would also have rejected the application.
JUNE 6, 2006
Canada (Minister of Citizenship and Immigration) v. Navarrete
A sham marriage is not a vehicle by which to provide sponsored entry into Canada. For a marriage to be valid for sponsorship purposes there must be a good faith intention of residing permanently with the sponsoring spouse.
Here, The Minister’s decision that the marriage of the applicants was a “marriage of convenience” had been overturned by the Board, because the Board had found the Minister’s claims unsupported by evidence. However, the court overruled the Board and affirmed the Minister’s decision. The applicant had very limited knowledge of the sponsor, her family or history. Furthermore, took no steps to legally adopt [the sponsor]’s three children as his own.
The Board erred by giving too much weight to the applicant’s claims and not giving any weight to the lack of knowledge about his sponsor’s past relationships and his lack of financial support or commitment towards his sponsor and her children.
JUNE 16, 2006
Batica v. Canada (Minister of Citizenship and Immigration)
The visa officer rejected the applicant’s marriage as not genuine, but failed to give the applicant a chance to respond to third-party evidence which contradicted information the applicant had submitted. The officer’s decision was overturned after the court found that the officer had a duty of fairness to inform the applicants of the contradictory evidence and to give them an opportunity to respond.
JULY 11, 2006
Karimian v. Canada (Minister of Citizenship and Immigration)
A spouse that is not included in the application for permanent residency is excluded from the family class for the purpose of sponsorship. The regulation that spouses must be declared “at the time of application” was found to include the applicant’s arrival at the port of entry. As the applicant failed to declare her change in marital status upon landing, the appeal was dismissed.
JULY 18, 2006
Chu v. Canada (Minister of Citizenship and Immigration)
The Immigration Refugee and Protection Regulations are authorized as retroactive legislation. The applicant’s argument concerned the conduct of her lawyer in relation to her lack of awareness of the need to provide evidence for humanitarian and compassionate factors. Her argument that she had a right to be assessed under the regulations of the former Immigration and Refugee Protection Act was rejected.
JULY 19, 2006
Canada (Minister of Citizenship and Immigration) v. Colaco et. al
The Minister’s argument that the Supreme Court’s reasoning in Hilewitz v. MCI applies only to business class applicants was rejected by the court. A Skilled Worker applicant with a disabled dependent should not have been rejected for an excessive demand on Canadian social services without assessing if the family has the willingness and the resources to pay for appropriate care and provide for employment. The Visa Officer and Medical Officer’s decisions were overturned as they did not complete an individual assessment of the information provided by the applicant.
AUGUST 9, 2006
Ong Yu v. Canada (Minister of Citizenship and Immigration)
The Visa Officer erred in not taking into account factors beyond the existence of remaining siblings in the country of origin in a remaining family member application on humanitarian and compassionate grounds. Officers should consider on a case-by-case basis the strength of relationship, the extent of dependency and the impact of separation. The applicant had been seeking to reunite with a twin sister, with whom she lived and helped raise nieces and nephews. With the strength of the relationship the applicant should not have been excluded from de facto family membership.
AUGUST 11, 2006
Liang v. Canada (Minister of Citizenship and Immigration)
Meeting humanitarian and compassionate grounds under the prior Last Remaining Family Member Policy does not necessarily meet current guidelines, as this would interfere with the Minister’s discretion. For the overage single dependent applicant the existence of emoitional dependency is not by itself sufficient grounds for approval. The application was rejected, but if the son remains single in the future a fresh application is not precluded.
SEPT 23, 2006
Mustafa v. Canada (Minister of Citizenship and Immigration)
The applicant, due to delays in the processing of the application, no longer qualified as a dependent child as he was no longer a full-time university student. He was therefore required to submit a separate application as an independent adult, not included in his mother’s sponsorship application. While the possibility of application as a dependent remains under the avenue of Humanitarian and Compassionate considerations, the applicant did not pursue that avenue. The Immigration Officer does not have a duty to inform of all other possible avenues. Such would cause an unnecessary burden on the immigration administration.
SEPT 29, 2006
Vaziri et. al v. Canada (Minister of Citizenship and Immigration)
The Minister acted completely within his legal authority, in the absence of regulations from Governor in Council, in establishing target ranges for immigration to Canada, determinations for the distribution of this target between classes and prioritizing within classes. It is a necessary and justified function of the immigration system for the Minister to enact such policies to administer immigration.
The applicants, representing parent and grandparent sponsorship cases, argued that their applications were negatively prejudiced by the Minister’s administrative determination of a 60-40 ratio between economic and non-economic immigrant classes. This was exacerbated by the later priority given to spouses and dependent children within the family class. The judge determined that the administrative ratios created by the Minister consisted of an inconvenience but not an unfair prejudice. They did not warrant a mandamus order for the applications to be processed immediately.
OCTOBER 4, 2006
Qazi et. al v. Canada (Minister of Citizenship and Immigration)
An applicant does not have the right to direct that their application be processed without an interview. This determination is under the officer’s discretion. The onus is on each applicant to show that he/she meets the requirements for admission. Where an applicant fails to attend to scheduled interviews, this may be sufficient grounds for dismissal of an application.
OCTOBER 4, 2006
McHugh v. Canada (Minister of Citizenship and Immigration)
The applicant sought to immigrate to Canada after a great deal of experience working as an administrator for the Prime Minister of Jamaica and in finance for a major Jamaican commercial bank. The officer did not award the applicant any points for her work experience. The job descriptions in the National Occupation Classification allow the visa officer to place greater weight on certain duties over others, but does not require that all listed duties be satisfied by an individual. Given the employment documents provided by the applicant and her employers, the determination that the applicant did not meet the job description was unreasonable, and her application was allowed.
OCTOBER 12, 2006
Ahmed v. Canada (Minster of Citizenship and Immigration)
The burden is on an investor class applicant to provide adequate documentation that their wealth did not come from illegitimate sources. The applicant provided business tax returns but these did not provide adequate information and the visa officer requested personal income tax forms. The applicant was unable to provide the information as he had not filed personal income tax forms. The visa officer is not obligated to provide further avenues to provide information.
OCTOBER 19, 2006
Espino v. Canada (Minister of Citizenship and Immigration)
The applicant came to Canada under the live-in caregiver, and faced an unexplained delay of 9 years following an application under the terms of that program, ending in a rejection. The applicant has built a career with a large Canadian bank in the period awaiting her application. The determination that the applicant would require only minimal adjustment to resettle in the Philippines after an absence of 15 years was an inference and was not explained with the decision. The application was allowed on compassionate considerations.
OCTOBER 23, 2006
Gau v. Canada (Minister of Citizenship and Immigration)
The precedent of Hilewitz to consider the ability and willingness of a family to financially support a disabled child and off-set an excessive demand on social services does not obligate the medical officer and visa officer to seek out this information. Rather the requirements are only that personal circumstances are taken into account with an individual assessment. The examination of psychological assessments and school reports satisfied the officers’ obligations. In the absence of any information showing otherwise provided by the applicant, the decision that her daughter would be an excessive demand on social services is reasonable.
OCTOBER 27, 2006
Randhawa v. Canada (Minister of Citizenship and Immigration)
The Visa Officer should take into account training offered by the employer when considering an applicant’s qualifications to satisfy the job requirements to obtain a work visa. The applicant, who holds a job offer from an Indian restaurant in Toronto, had a great deal of experience as a cook in India and satisfactorily completed a food and hygiene course recognized by the Indian government at the request of the Visa Officer. The officer erred in applying their own un-objective standards of food hygiene expertise to reject the application. The employer may be expected to provide adequate training, as outlined in its business plan, in the course of job orientation.
OCTOBER 27, 2006
Dhoot v. Canada (Minster of Citizenship and Immigration)
The applicant was unfairly prejudiced by the decision to transmit a request for interview by fax rather than by mail, given the importance for his application. The applicant and his consultant brought forth evidence that they never received the letter. The Visa Officer rejected their claims based on confidence in the reliability of the Indian mail system. However evidence shows that the letter was sent by fax and to a number not associated with the applicant’s consultant. The officer’s decision was overturned with costs.
NOVEMBER 7, 2006
Nashmi et. al vs. Canada (Minister of Citizenship and Immigration)
The definition of work in the IRPR manual takes precedence over the regulations specified in the Foreign Worker Manual. The immigration officer rejected the work permit application of an Islamic scholar with an offer of employment to teach Islamic studies on the basis that the renumeration of $43500 plus a standard benefit package exceeded the Foreign Worker Manual definition of “a small stipend for living expenses” for charitable or religious work. The application for work permit was allowed, as the officer erred in placing that standard ahead of the definition ahead of the IRPR definition of work as “an activity for which wages are paid or commission is earned”.
NOVEMBER 23, 2006
Ilahi vs. Canada (Minister of Citizenship and Immigration)
The burden is on the respondent to prove that an interview notice has been sent to a correct address provided by the applicant. In the absence of a copy of the letter produced by the respondent, there is insufficient proof that the interview notice was sent to the right address. An indication in the case notes that a letter was sent is not adequate evidence given that several addresses can be found in the paper file. The application was allowed in the absence of any direct evidence that the interview notice was indeed sent to the correct address.
NOVEMBER 24, 2006
Dhillon et. al v. Canada (Minister of Citizenship and Immigration)
Accompanying children over 22 years of age being included in a visa application must be continuously enrolled in and actively pursuing their education at a post-secondary institution. Proof of enrollment or physical attendance is not sufficient for this matter, and the visa officer is required to confirm genuine effort on the part of the student to acquire the knowledge imparted by the course, which may be determined through questioning on the content of the course. The failure of the applicants to demonstrate significant knowledge of computer software programs that were the subject of their studies is sufficient justification for a negative decision on the visa application.
DECEMBER 5, 2006
Lee v. Canada (Minister of Citizenship and Immigration)
the precedent of Hilewitz requires that an officer consider an
applicant for permanent residency’s willingness and ability to pay for
social services to mitigate against excessive demands on public
services, it does not apply to health care. Financial ability does not
change entitlement and access to healthcare, as private health care is
not available in Canada. However the officer should have also
considered the applicant’s request to be considered for a temporary
resident permit, should his permanent residency be denied, and the
failure to do so was a breach of due process.
DECEMBER 13, 2006
Singh. v. Canada (Minister of Citizenship and Immigration)
The applicant, a Sikh priest who has been serving a congregation in Edmonton since 2000 while in Canada on temporary resident visas, applied for permanent residency in 2004 and re-applied in 2006, receiving lower points on certain categories. While it is reasonable for visa officers to make independent determinations of different points, however a misinterpretation of regulations led the officer to award fewer experience points than appropriate. A foreign national may work in Canada without a work permit, if they are engaged in assisting a spiritual or religious congregation. The application was allowed, as the recognition of this experience gives the applicant the requisite number of points.
DECEMBER 13, 2006
Khan v. Canada (Minister of Citizenship and Immigration)
The genuineness of a spousal relationship must be judge through the eyes of the parties themselves against their own cultural background. The applicant married the wife of his deceased brother in 2002 for the honour of his family. The officer determined that since the new wife remains in Pakistan while the applicant is in Canada, there is not sufficient evidence that their relationship has changed from sister-in-law to spousal, and therefore the relationship is not genuine. The evidence provided for personal knowledge of each other was consistent and supported by witnesses. The children from both spouses lived together in the same household. There is no reason that such a marriage cannot be genuine given the cultural factors.
DECEMBER 14, 2006
Brar et. Al v. Canada (Minister of Citizenship and Immigration)
applicants received temporary work permits to work in Calgary as cooks
at Bombay House, an Indian restaurant. Upon arrival, they discovered
that this restaurant was still under construction, and the owner of
that establishment placed them in another Indian restaurant. While the
ownership of that restaurant was different, the applicants worked as
cooks and received payment from the same numbered company that owned
Bombay House. That the applicants were not aware they had contravened
the details of their work permit was not relevant, as they had a
responsibility to determine if their employment was consistent with the
employment authorization. However, the permit should be made
understandable to all parties involved. The ruling was made in favour
of the applicants on the grounds that it is reasonable to look beyond
the wording of the permit itself to resolve ambiguities and determine
that the nature of work and source of payment indicate that the
applicants did in fact work for the employer listed.
DECEMBER 21, 2006
Woldeselassie v. Canada (Minister of Citizenship and Immigration)
The requirement under the IRPR subsection 117(9)(d) that excludes from
sponsorship any family member who was not examined at the time the
sponsor applied for permanent resident status does not apply where the
applicant was unaware of their existence at the time of their
application and landing. Having had an extra-marital affair while
separated from his wife during a period living as a stateless refugee
in Rome, the applicant fathered a child with a woman who then left Rome
early in the pregnancy before either party was aware. The child that
the applicant now seeks to sponsor was born 8 months after the
application for permanent residency was completed. The applicant did
not learn of the pregnancy or birth of his child until after landing in
Canada. As the applicant was unaware of his daughter’s existence at the
time, the failure to disclose her existence at the time of application
or landing does not exclude her from a later sponsorship application.
The IAD member hearing the appeal erred in dismissing the applicant’s
story without providing reasons to support this decision, and on later
review the application was allowed.
DECEMBER 28, 2006
Harkar v. Canada (Minister of Citizenship and Immigration)
According to the Supreme Court ruling of Hilewitz v. Minister of Citizenship and Immigration, the officer must consider a willingness and ability of an applicant to pay for social services for a dependent, mitigating against excessive demands which the dependent would attract. The applicant expressed a willingness to pay for any social services to help his daughter. The applicant had previously privately funded the daughter’s pre-school costs and other therapy and developmental costs. There is no evidence that the visa officer or medical officer considered the applicant’s willingness and ability to pay. Having failed to do so, the application was allowed.