Case Commentary - 2008

JANUARY 2008

JANUARY 10 2008
Anaere v. Canada (Minister of Citizenship and Immigration)
The appellant became a landed immigrant in 1999 and applied for citizenship in 2002, after which he left toVietnam to volunteer for two years with a Canadian NGO on a project funded by the Canadian International Development Agency. While he neglected to make arrangements to write the knowledge test outside of Canada, during this period abroad he maintained his personal effects in Canada and regularly deposited his funds into his Canadian bank accounts. Accepting temporary employment abroad does not necessarily count against an applicant, and given that such employment was financed by the government of Canada should not be considered to lessen his ties to Canada. Given that in addition to this information the Citizenship Judge failed to consider the documentary evidence provided to demonstrate the appellant's continued connections to Canada, the judge's decision was found to be unreasonable.

FEBRUARY 2008

FEBRUARY 22 2008
Fernandes v. Canada (Minister of Citizenship and Immigration)
The IRPA provides for the opportunity for an applicant that the officer consider using favourable discretion in considering an application that does not succeed based on the point system. This exception allows the officer to decide favourably if the points system does not adequately reflect the applicant's ability to become economically established in Canada. Such a request must be accompanied by some reasoning, but need not be augmented by greater detail on the applicant's background, experiences, or skills. If such a request is made, the officer must display that they considered whether to exercise such discretion, and the failure to consider doing so amounts to a reviewable error.

FEBRUARY 28 2008
Nizami v. Canada (Minister of Citizenship and Immigration)
A note in the CAIPS notes of a file does not serve as adequate proof that an interview notice has been sent and received by an applicant. The applicant alleges she was not given notice of her rescheduled interview despite CAIPS notes that suggest otherwise. She pointed convincingly that no such letter was found in her file upon disclosure. The applicant had been actively responsive to requests for information and enthusiastic about immigrating to Canada. In light of such information, CAIPS notes do not serve as credible evidence that such a notice was sent and ignored, which suggests the applicant was not given due procedural fairness.

FEBRUARY 29 2008
Khatoon v. Canada (Minister of Citizenship and Immigration)
The applicant was denied a temporary resident visa that she sought to attend the wedding of her granddaughter in Canada. The officer was not satisfied that the applicant would leave the country at the end of the approved period. Their justification for this denial was based largely on the fact that her son had in the past remained in Canada without status. Furthermore he imputed cultural practices to assume that the applicant would seek to live with her son in Canada rather than her daughter in Pakistan. Both of these present patently unreasonable bases for refusal. The individual should be considered without regard for the behaviour of family members or stereotypes of cultural practices. In addition, the Minister made a policy decision in 2005 to encourage officers to be more flexible in providing temporary resident visas to parents and grandparents. The visa was granted on appeal.

MARCH 2008

MARCH 7 2008
Ogbonnaya v. Canada (Minister of Citizenship and Immigration)
The applicant was accepted to study economics at York University and sought a visa to begin his studies in September 2007. He was forced to defer his acceptance when his application was denied on two grounds: that he was not a bona fide student, and that he lacks ties to Nigeria and was thus unlikely to return upon completion of his studies. The first claim is surely unreasonable as he presented proof of his acceptance from York University, and was presumably based on the four years that had elapsed between his completion of high school and beginning of university. This is far from sufficient reason to question his bona fides. Secondly, the visa officer overlooked the fact that the applicant has his parents, six older siblings and wide extended family in Nigeria, and no family in Canada. In addition the applicant has been actively involved in his local parish of the Presbyterian church in Lagos since his teenage years. The officer's decision was deemed unreasonable and overturned on appeal.