Case Commentary - 2007
January 10, 2007: Hernandez Bonilla v. Canada (Minister of Citizenship and Immigration)
The officer erred in applying a generalization about the formative years of high school when he denied the applicant’s study permit application. The applicant sought a study permit for four years at a Canadian high school which had already accepted her as a student. She provided sufficient proof of her sister’s (who would become her legal guardian) employment, residence and ability to pay tuition and living expenses. Though the applicant provided an affidavit that she would return to Colombia after completion of her studies, the visa officer determined that spending the entire formative four years of high school in Canada would negatively impact her ability to function in her home country. In making this determination the officer applied a general prejudice against study permits rather than assessing the merits of the case. The officer’s decision was overturned.
January 17, 2007: Chen v. Canada (Minister of Citizenship and Immigration)
The applicant is due a responsibility to notify him in a fairness letter of questions on the legitimacy of his application, with sufficient time and opportunity to respond with evidence to support his case. As an applicant under the Quebec investor category, the applicant’s sources of funds and capital were subject to scrutiny. While the visa officer found that certain contracts had been flagged with fraud warnings, the failure to provide a notification and opportunity to respond was a breach of the fairness owed to the applicant. By allowing the application, the court allows the applicant to provide evidence to prove the legitimacy of the contracts in question.
January 22, 2007: Kakar v. Canada (Minister of Citizenship and Immigration)
Ministerial discretion may be used in cases of citizenship applications which fall short on certain requirements but bear consideration on extenuating circumstances. The applicant resided in Canada for 12 years beginning in 1970, but has made India her home with 1983. While the requirements of Canadian citizenship dictate that a candidate must have centralized their mode of existence in Canada, the applicant has clearly done so in India, where her family remains and where she has spent the majority of her time. As the applicant clearly falls short of the residency requirements for Canadian citizenship, the onus was on her to provide evidence of special or undue hardship to justify her request for ministerial discretion. Absent any such evidence, the claim that the citizenship judge erred in not recommending ministerial discretion was dismissed.
January 25, 2007: Canada (Minister of Public Safety and Emergency Preparedness) v. Kelley
Immigration regulations allow for removal in cases of serious criminality. The respondent was convicted of criminal harassment and mischief, for which he received a sentence of 30 days imprisonment. When prosecuted by indictment criminal harassment carries a maximum penalty “not exceeding ten years”. This definition necessarily includes the possibility of a ten year sentence, and thus meets the definition of serious criminality, justifying the minister’s application for removal.
January 30, 2007: Dai v. Canada (Minister of Citizenship and Immigration)
The burden is on the applicant to provide sufficient proof that they were resident in Canada for the required period prior to their citizenship application. To qualify for Canadian citizenship you must have been physically present in Canada for at least 3 years (1095 days) during the 4 years prior to making an application. The applicant provided bank statements, which are passive documents that do not demonstrate social, economic or cultural activity. Combined with a failure to declare stamps on her passport and a lack of sufficient other documentation, the citizenship claim was denied.
January 30, 2007: Zuo v. Canada (Minister of Citizenship and Immigration)
The existence of English instruction at much lower cost in home countries should not be taken as determining the likelihood of the applicant to leave Canada following the authorized period of stay. The applicant enjoyed a high standard of living in China and his parents had significant savings to invest in his education. He provided a study plan that stated his intentions to improve his English skills in order to pursue graduate studies in Sports Journalism. This educational goal was tied to a plan to return to China and join his parents for a career in public service. The officer erred by applying a subjective judgment on the financial value of English language training, which would certainly be superior when taught in an environment where English is the predominant language (Vancouver). By applying this determination without regard for the applicant’s ties to China, the officer erred in rejecting his application on the grounds he was unlikely to leave after his authorized stay.
January 30, 2007: Shanguan v. Canada (Minister of Citizenship and Immigration)
The officer made a reviewable error by importing their own criteria into assessments based on the National Occupation Classifications (NOC). The applicant’s position as a Restaurant and Food Service Manager was dismissed on the basis that she was not privy to financial reports and was not given the responsibility of general accounting. While the NOC requirements do not require that each listed duty be performed in a given position, neither general accounting nor responsibility for daily banking transactions is included in this category. Upon reviewing the case without the criteria subjectively imposed by the officer, the application was allowed.
February 7, 2007: Ramos-Frances v. Canada (Minister of Citizenship and Immigration)
The duty of fairness does not require an officer to advise an applicant on the inadequacies of written materials to allow them to improve their application. The officer requested an interview to address concerns about the applicant’s work experience. The applicant was unable to attend this interview as he no longer had status in the United States, where he had filed his application. While he requested that his file be transferred to Santiago, Chile, the request was denied in concerns for the integrity of the program, as Chile is not the applicant’s country of nationality and he provided no information on his status there. As the interview is not an absolute entitlement, the onus is on the applicant to ensure their application file is complete.
February 15, 2007: Kainth v. Canada (Minister of Citizenship and Immigration)
The inclusion of the interview in the application process for permanent residency exists to provide more information to the visa officer to assist in making decisions. Receiving sufficient points on assessment to justify issuance of a permanent residence visa does not guarantee that an application will be accepted if the information garnered in this interview contradicts the points on the applicant’s ability to settle and integrate into Canadian society. The applicant stated in the interview that he does not intend to integrate into Canadian society as a whole but rather remain within the Punjabi community. The evidence gained in the interview of the ability of the applicant to become economically established in Canada allows the officer to use negative discretion to substitute for the points assessment.
February 20, 2007: Andryanov v. Canada (Minister of Citizenship and Immigration)
The applicant was unable to acquire a regular passport from the Embassy of Russia, where he held citizenship, due to bureaucratic complications. For proof of identification for his sponsorship application, he provided a Seaman’s passport and a national identity card, both of which appeared valid to the Immigration Officer. However as the Seaman’s Passport did not have an expiration date, the officer expressed concerns about whether the document remained valid and subsisting. The way in which a passport or other travel document expires is up to the issuing government to determine and is outside Citizenship and Immigration Canada’s (CIC) expertise to assess. Since the applicant demonstrated concerted efforts to acquire a regular passport, the documents provided by the applicant should have been accepted as proof of identity, in light of the significant amount of evidence confirming this identity. In determining that the Immigration Officer breached the duty of fairness to the applicant, the application was allowed upon judicial review.
February 23, 2007: Sawnani v. Canada (Minister of Citizenship and Immigration)
A fax confirmation, sent to a valid fax number provided by the applicant, is sufficient evidence of the Immigration Officer notifying an applicant of a request for interview. In the presence of such evidence, the claim by the applicant that they did not receive the notification is not grounds for overturning a negative decision. It is the responsibility of the applicant to provide sufficient other grounds for overturning the decision.
February 27, 2007: Shah v. Canada (Minister of Citizenship and Immigration)
When notifying applicants that they will be required to come in for an interview, immigration officials have the responsibility to ensure that the notification is sent. In the case of a faxed notice, this burden does not extend to issues such as unavailability of the person on the other end, malfunctioning equipment or administrative errors. The applicant argued that his notification, sent to his immigration consultant, was not received. As the respondent provided a fax confirmation, the burden remained on the applicant to ensure they are prepared to receive communication.
March 5, 2007: Vellanki v. Canada (Minister of Citizenship and Immigration)
Slight administrative delays on the part of the Visa Officer or Citizenship and Immigration Canada (CIC) that complicate processing do not outweigh the burden on the applicant to submit proof that they are not inadmissible. While the applicant was otherwise qualified for a visa in the Skilled Worker category, the Visa Officer requested further information to determine admissibility on security and medical grounds. The information requested and deadline provided were both reasonable, and refusal of the application was based solely on the applicant’s failure to meet this deadline. While the delay in notifying the applicant that he had missed this deadline is regrettable, the burden remained on the applicant to submit the documentation in a timely fashion.
March 20, 2007: Juneja v. Canada (Minister of Citizenship and Immigration)
An arrangement that defers payment for work conditional on the subsequent issuance of a work permit does not exempt an individual from following the necessary regulations regarding work in Canada. The applicant was a resident in Canada on a study permit that prohibited work without express department authorization. The applicant proceeded to work for a car dealership without authorization, with hourly payment promised for the future, conditional on the work permit. While the applicant argued that the arrangement fell outside the definition of work, Canada’s regulatory definition of work does not require that wages be paid. The applicant’s employment was in direct competition in the Canadian labour market with Canadian citizens and permanent residents. In addition work may include unpaid employment for the purpose of gaining work experience. The applicant’s appeal was denied.
June 5, 2007: Anton v. Canada (Minister of Citizenship and Immigration)
It is apparent in reading the decision that the officer failed to give proper attention to the details of the case. The circumstances of the case are similar to those that faced the court in Sutharsan v. Canada earlier in the year. The written text of the decision on the applicant’s file however is nearly identical to that in Sutharsan, making it clear they had been copied from the earlier file. This use of pre-written text shows that the officer failed to consider the evidence presented in this application independently and on its own merits.
June 5, 2007: Boateng v. Canada (Minister of Citizenship and Immigration)
Considerations of procedural fairness as well as public policy must be considered at all stages of processing an application. While the applicant was not able to provide a passport, he provided an affidavit of identity from a clergyperson residing in Africa. For 5 years previous during the application process the applicant and his solicitor had corresponded regularly with CIC, yet this submission was followed by 13 months without response. After this period of silence the CIC rejected the application unless further documentation was submitted within a short time frame. By denying even a short extension without explanation after extensive delays and after a precedent of extensions in prior dealings, CIC violated procedural fairness. In addition, there is a strong public policy argument in favour of the application as the applicant is married to a Canadian citizen and has a Canadian-born child. The officer erred by not taking into account these considerations.
June 14, 2007: Ibrahim v. Canada (Minister of Citizenship and Immigration)
There are three established lines of jurisprudence available for citizenship judges to follow when assessing residency requirements in the course of a citizenship application. The judge followed an accepted test of residency by establishing that the applicant’s 480 days spent in Jordan attributable to a job for a Canadian employer do not count towards Canadian residency requirements because he was not physically present in Canada. While the re: Koo line of jurisprudence would be favourable to the application with the test that the applicant had centralized his mode of existence in Canada, this is not a grounds for appeal. As long as one of the three established lines of jurisprudence has been followed, the initial decision should not be changed.
June 21, 2007: Dahyalal v. Canada (Minister of Citizenship and Immigration)
In assessing work experience based on the National Occupation Classifications (NOC), it is not necessary for the applicant to demonstrate having performed the majority of the main duties listed for their profession. The test described in the IRPR is of a more moderate standard, requiring a "substantial number of the main duties", or "some or all duties" in the NOC descriptions. The visa officer erred by applying a heightened standard of "most of the main duties" listed. The application was allowed on review.
July 4, 2007: Mizani v. Canada (Minister of Citizenship and Immigration)
Even after completing a successful citizenship test, the onus is on the applicant to produce adequate proof of satisfying the residency requirements for citizenship. The applicant failed to produce his expired passport for the period in question, instead submitted a series of other documents. Given the unconvincing nature of the explanation for the missing passport and the inadequate nature of the other evidence, the Judge rejected the application based on insufficient proof of presence in Canada to fulfill the residency requirement.
July 20, 2007: Pardhan v. Canada (Minister of Citizenship and Immigration)
The applicant's wife submitted as part of her application a Higher Secondary School Certificate from the Board of Intermediate Education of Karachi that she later admitted was not a genuine document. By using a forged document, the applicant's wife had thus committed a criminal offence under the Pakistan Penal Code. The officer determined that the offence would be equivalent to one that would carry punishment exceeding 10 years in Canada, rendering the applicant's wife inadmissible. In making this assessment however the officer did not carefully consider either the essential ingredients of the offence or the wording of each corresponding penal code. In the absence of such an examination, the equivalency assessment in deficient and invalid.
August 2, 2007: Lee v. Canada (Minister of Citizenship and Immigration)
The applicants' son is 33 years of age, fully disabled and under the care of a Catholic welfare society. They did not include him in their application for permanent residency having intended that he remain in Korea, which would by nature have excluded him from sponsorship eligibility, however he was examined against their wishes and deemed medically inadmissible, thus rendering the family inadmissible as well. The applicants then arranged to have their son adopted by his aunt and provided evidence of this adoption in order to have their application reconsidered, however the visa officer found this adoption not to be genuine. That the applicants motives for the adoption were to improve their application admissibility is not of concern as they were open about doing so and the relationship with the aunt made for a genuine adoption. In light of the failure of the visa officer to clearly explain his rationale for this decision as required by regulation and as the care of the dependent child in question had clearly from the beginning been passed from the parents to the welfare institution, the application was allowed on review.
August 2, 2007: Kim v. Canada (Minister of Citizenship and Immigration)
To be awarded points on the basis of being related to Canadian citizens, the relative in question must be living in Canada at the time. The applicant's daughter is a Canadian citizen who was living in Canada at the time of his initial application for permanent residency. During an intervening period she was in Korea for a period of 17 months during which she was not attending school in Canada. At the time the application was assessed she was in Canada looking for schools, accompanied by her father. Based on her time away from Canada however, the visa officer treated her for the purpose of her father's application as someone visiting Canada for a temporary purpose and thus did not award him points for having a relative living in Canada. In doing so however the officer considered only the fact that the daughter had been living in Korea for the previous 17 months. In light of the fact that the daughter did not leave Canada thereafter, she should be reconsidered as a Canadian citizen living in Canada, and in turn her father's application should be reviewed in light of the additional points awarded.
August 3, 2007: Cai v. Canada (Minister of Citizenship and Immigration)
In assessing the bona fides of a common-law relationship for sponsorship purposes, the relevant time period to investigate is at the time of the application for permanent residency and not prior. The applicant's spouse did not list him as a non-accompanying family member on her application for permanent residency in January of 2005. The evidence provided shows that while the relationship began in 2003, it was not until after June of 2005 that the couple demonstrated a mutual commitment to a shared life with actions such as shared bank accounts, insurance and residential leases. The common-law relationship as such then did not exist at the time of the initial application in January of 2005.
August 7, 2007: Nathoo v. Canada (Minister of Citizenship and Immigration)
The applicant is employed as an assistant hotel manager in Tanzania and has been offered a similar position at a Calgary hotel. Despite her experience satisfying appropriate skilled worker classifications under the National Occupation Classification (NOC) as well as the job description at the Calgary hotel, the visa officer was not convinced of the applicant's capabilities for the job and thus awarded her no points for arranged employment when assessing her application. The officer concluded that on the basis of her only minimal contact with the prospective employer and limited knowledge of the hotel industry in general that she would not be able to perform her duties. In doing so the officer erred by applying extraneous factors that do not have bearing, and on review the applicant was awarded appropriate points for arranged employment.
August 9, 2007: Singh v. Canada (Minister of Citizenship and Immigration)
A business immigrant entrepreneur applicant is obligated to provide clear and conclusive documents testifying to their satisfying the various requirements of their qualifying business. Where information is insufficient or otherwise not satisfactory, the visa officer is under no obligation to provide an opportunity for clarification in interview or with further documentation. The financial information provided by the applicant as to his business interests in the Philippines is self-contradictory and unclear. The applicant was obligated to submit up front sufficient proof of qualifying business assets, and in the absence of clear proof of such assets is ineligible as a entrepreneur applicant.
October 3, 2007: Tesema v. Canada (Minister of Citizenship and Immigration)
The applicant's claim for recognition as a Convention refugee or a Humanitarian Protected Persons Abroad--Designated Class was sponsored by the Roman Diocese of Calgary. A letter to the sponsoring group from CIC specified that the applicant would be interviewed to determine her eligibility. The failure to hold this interview amounted to a breach of the duty of procedural fairness, leading to judicial intervention in the applicant's favour in the Federal Court of Appeal.
October 3, 2007: Afriat v. Canada (Ministre de la Citoyenneté et de l'Immigration)
L'agente n'a pas été satisfaite de l'authenticité de la relation conjugale des demandeurs en raison des nombreuses contradictions dans leurs témoignages. Le couple n'a pas raconté la même version concernant l'endroit et les circonstances entourant la demande en mariage, de même que leur voyage de noces. Tenant compte de ces nombreuses contradictions et les autres constations de l'agente, la conclusion était que le mariage n'est pas authentique et qu'il vise principalement l'acquisition d'un statut ou d'un privilège découlant de la loi.
October 5, 2007: Bhango v. Canada (Minister of Citizenship and Immigration)
In assessing the genuineness of a marriage for purposes of immigration, the appropriate time period is the circumstances of the marriage rather than when the couple met. The applicant was married to his wife in a non-legal religious ceremony prior to a civil marriage some years later. During the intervening period he claimed on income tax returns to still be married to his first wife. At the time of his civil marriage however he properly identified the date of his Indian divorce to the Quebec authorities. The questions surrounding his behaviour before the marriage are not linked by evidence to call its genuineness into question. The application was granted upon review.
October 15, 2007: Dhaliwal v. Canada (Minister of Citizenship and Immigration)
The officer expressed concern about the genuineness about the applicant's marriage. The applicant claimed the officer's concerns about the parties' lack of knowledge of one another reflect cultural insensitivity towards Sikh traditions of arranged marriages. However there is significant evidence that the officer considered the cultural context and found that this arranged marriage did not conform to Sikh tradition in a number of manners. There was also a contradiction between the husband's testimony and the version of events givern earlier at an interview. As the second version was better for their case, the applicant referred to the precedent in Gill v. M.C.I. to prefer viva voce evidence in a hearing over notes from an interview. However that precedent involved an interview conducted through an unreliable translator, and the husband's interview had been conducted in his own native language. The refusal based on the finding of a marriage of convenience was not unreasonable.
October 16, 2007: Olorunshola et. al v. Canada (Minister of Citizenship and Immigration)
If a visa officer has concerns about an application, they owe a duty to the applicant to share these concerns with them and provide an opportunity for the applicant to address those concerns. The officer did not find the documentary evidence submitted by the applicant to be reliable, but there is no evidence of the reasoning why these documents were unreliable. In addition, there was confusion about the appropriate NOC classification. The applicant listed his occupation as finance manager but listed the code corresponding to senior manager on his application. In light of this confusion the officer ought to have contacted the applicant for clarification. These failures of procedural fairness constitute reviewable error.
October 16, 2007: Rigg v. Canada (Minister of Citizenship and Immigration)
The applicant came to Canada at the age of 10 and now faces removal to Jamaica at age 42 due to a lengthy history of criminality. She is seeking protection to remain in Canada due to the persecution she would face as a Lesbian. The officer's refusal decisions pointed twice to the fact she had not sought state protection before leaving and suggesting that without a personal history of persecution her fears are speculative. This is an unreasonable conclusion, as she could not have been expected to seek state protection as a homosexual prior to age 10, and a significant body of evidence was submitted on her behalf about an environment of persecution that she would likely face if removed. The applicant is entitled to an objective assessment of removal risk based on the full range of evidence.
October 22, 2007: Kasisavanh v. Canada (Minister of Citizenship and Immigration)
Federal authorities are not limited nor bound to Quebec findings concerning selection requirements unless the applicant does not meet the criteria for selection. The applicant's entrepeneur application, selected by the Province of Quebec, was refused due to a failure to prove that funds were legally obtained. The applicant was aware of the importance of submitting appropriate documentation but failed to do so. The failure on behalf of the applicant to provide answers to crucial questions means that the officer was reasonable in their refusal of the application.
October 22, 2007: Kim et. al v. Canada (Minister of Citizenship and Immigration)
The applicants arrived in Canada on a visitor visa in 1996 and obtained work and study permits in 1997 from an immigration consultant. Immigration officers later determined that these documents were fraudulent. In 1999, The applicant was charged with operating a common bawdy house in Toronto and pled guilty. The family was later removed to South Korea after their PRRA applications were refused, and returned to Canada four months later and filed new applications. Their removal has been deferred. In considering removal the officer is obligated to consider any applicant child's ability to speak the home country language and the ability to continue educational development. Having arrived in Canada at age 4, the son speaks little Korean and would face significant difficulties and hardship in continuing his education in Korea. The immigration officer is obligated to take this hardship into account in considering any possible removal.
October 22 2007: Jesuorobo v. Canada (Minister of Citizenship and Immigration)
When the CAIPS notes contradict with testimony provided by a visa officer after the fact in respect to the handling of a file, the CAIPS notes will be considered the superior record of events. Officers are given strict instructions to record all process and justifications for decisions in the CAIPS notes in the event of a future court challenge. Given that the CAIPS notes fail to mention any interview given for the applicant to respond to issues about his marital status as well as omitting record of considering financial information provided in support of his file, the court must conclude that no such consideration took place. In light of this failure of procedural fairness, the court declared the decision null and void.
October 26, 2007: Roopchand v. Canada (Minister of Citizenship and Immigration)
In assessing the genuineness of a marriage for immigration purposes, the examining parties are entitled to draw inferences from contradictory or inconsistent statements, knowledge about each other, and other behaviours that attest to the genuineness of a relationship. The questionnaires administered to the spouses show a number of inconsistencies in the history of their relationship and lack of knowledge about each other. This is a reasonable test to use in establishing a lack of bona fides.
October 29, 2007: Brandford et. al v. Canada (Minister of Citizenship and Immigration)
The applicants, in their request for humanitarian and compassionate considerations, put forth descriptions of a number of difficulties they faced while living in Canada under a Temporary Resident Permit, that could be alleviated if they received the waver they sought. The conclusion provided by the Minister's Delegate in their refusal fails to show any evidence of any consideration of these circumstances. By failing to provide the reasons for the decision which would allow the court to determine if there was reviewable error, the applicants were denied procedural fairness.
November 2, 2007: Vu v. Canada (Minister of Citizenship and Immigration)
The applicant came to Canada with his spouse as a Designated Class refugee and is now a long-term resident with 2 additional Canadian-born children. In his time in Canada however the applicant has considered a serious criminal record. During this period the applicant has continued to provide emotional and financial support to his wife and children and resides with the family. The immigration officer was not under any obligation according to the regulations to render a positive decision in the children's interests however upon review the application was allowed under humanitarian and compassionate considerations.
November 2, 2007: Mekonen et. al v. Canada (Minister of Citizenship and Immigration)
The applicant was refused due to his membership for a number of years in the Eritrean Liberation Front. The applicant admitted membership in this group but denied personal involvement in armed struggle. The officer determined that active membership in this group during the relevant period provide reasonable grounds to believe he was aware of the group's armed and terror-related activities. The officer breached fairness to the applicant by failing to show the documents considered in the decision to the applicant and afford an opportunity to comment on the information contained. In addition the officer erred by failing to define how he understood the definition of terrorism as applied here. This constitutes a reviewable error.
November 2 2007: Chen v. Canada (Minsiter of Citizenship and Immigration)
The applicant obtained permanent resident status in December of 1999 and began studying at the University of British Columbia the following September. During the interim period and throughout his legal studies and subsequent articling position he returned to China a total of nine times totaling 402 days, leaving him 31 days short of the residency requirement. The applicant's appeal centered on the argument that the judge having considered elements other than the prescribed period of time in making their decision. Given that there is no evidence of such other considerations and that the applicant failed to meet the requirements to establish his mode of existence as centralized in Canada, his appeal was denied.
November 7, 2007: Ihejieto v. Canada (Minister of Citizenship and Immigration)
When assessing a request to restore a visitor's visa, the entire file regarding the applicant's history may be assessed to determine their intent to stay in Canada. The applicant had initially entered Canada on a 2 week visitor visa to attend a seminar, soon after which he married a Canadian citizen who sponsored his permanent residency application. The application was later refused when it was determined the marriage was not genuine, and was entered into simply for immigration purposes. The applicant, currently married to a different Canadian citizen, has asked to restore his visitor's visa for the purpose of a follow-up medical procedure with no specific timetable. Given the entirety of the applicant's history, it was reasonable for the officer to refuse the application based on the determination that the applicant's intent was in fact to remain in Canada.
November 7, 2007: Yu v. Canada (Minister of Citizenship and Immigration)
The CAIPS notes for the applicant reveal that nearly half of her interview was dedicated to questions about the applicant's attendance at the University of British Columbia, a matter which was immaterial to her application and well supported by documentation. The visa officer's contention about the description of the applicant's presence as a “visiting scholar” at the school led the officer to conclude that the applicant had not been honest about her activities in Canada. Not only was this finding unreasonable based on the evidence at hand it was also irrelevant and likely prejudiced the finding that the applicant's employment history was also not-as-stated. In reaching this conclusion the notes show that the officer failed to consider a well-documented employment reference provided by the applicant. The applicant is entitled to be assessed on the full body of their employment experience, rather than the school experience immaterial to the application.
November 8, 2007: Patel v. Canada (Minister of Citizenship and Immigration)
The applicant submitted an application under the National Occupation Classification (NOC) of chemist, and submitted a significant body of evidence to document his employment and duties as a chemist in India, including detailed documentation. The officer found that they were not satisfied the applicant fit the duties of the NOC for chemists, determining that he fit the NOC for chemical technologists instead. In making this determination however, there is no evidence that the officer undertook any critical assessment of the applicant's employment duties. In making this decision without critical assessment the officer committed a reviewable error.
November 9, 2007: Ziaei v. Canada (Minister of Citizenship and Immigration)
The point total given in the initial assessment is not relevant to the final decision on a visa application. The final decision is based on the more detailed assessment made by the visa officer. The applicant's reference to this initial assessment score is misplaced. In addition the applicant has argued that the decision letter was unfair in that it strayed from the format in the departmental operations manual. This manual is a guide rather than a regulation and thus deviation from that format is not a breach of fairness.
November 13, 2007: Gidikova v. Canada (Minister of Citizenship and Immigration)
In assessing language proficiency, guidelines require officers to consider any other written evidence submitted by the applicant to support their application. The notes from the applicant's interview suggest that the interviewing officer was inclined to award at least 6 points for language proficiency whereas the final decision awarded 0 points. Even if the applicant declines to submit more precise and well-recognized credentials requested by the officer, the officer is required to consider any written evidence at hand in their assessment (in this case a high school diploma and language school certificate). To altogether ignore the evidence submitted breached the duty of fairness owed to the applicant.
November 15, 2007: Wang et. al v. Canada (Minister of Citizenship and Immigration)
Inadmissibility on the grounds of criminality requires that the visa officer conduct a legal test of equivalency to determine the severity of the offence under Canadian law. The spouse of the applicant had been charged with an offence in Japan stemming from an altercation during a municipal election. In determining inadmissibility, there is no evidence that the officer conducted an equivalency analysis. The applicant cannot be ruled as inadmissible on these grounds without the appropriate analysis.
December 6, 2007: Gay v. Canada (Minister of Citizenship and Immigration)
In response to a request from the immigration officer, the applicant provided a series of documents as proof of adequate funds to establish himself in Canada. The officer only raised concerns about the adequacy of these documents on the day of the application's refusal despite these documents submitted nearly a year prior. Given the failure to refer to any of these documentary evidence specifically and the timing of the concerns arising, the court found that the officer made an erroneous finding without regard to the totality of evidence in front of her.
December 7, 2007: Yang v. Canada (Minister of Citizenship and Immigration)
An applicant for a temporary resident visa is required to provide adequate proof of sufficient and available financial resources for the course of their stay. The applicant provided photocopies of expired documents regarding deposits which were free to be withdrawn, and documented only his father's monthly income, equivalent to roughly $714 Canadian. Given the incomplete and unreliable nature of this financial information, it was well within the officer's discretion to conclude that the applicant would not leave Canada at the end of his authorized stay.
December 10, 2007: Thathgur v. Canada (Minister of Citizenship and Immigration)
Under the IRPA regulations, visa officers have a statutory obligation to consider the use of discretion in evaluation when requested to by the applicant. This discretion allows the officer to award a positive assessment in cases of insufficient points if the number of points indicated is not a sufficient indicator of the applicant's ability to become economically established in Canada. The applicant made such a request for discretion through his representative at the beginning of the application process, being aware of the possibility that he may not succeed through the regular process. The failure to repeat this request at the close of the final session when given the opportunity to make further submissions does not represent a waiving of the request for discretion. In the absence of such a waiver the officer failed to fulfill a statutory responsibility by not considering the request for the exercise of discretion.
December 20, 2007: Maruquin et. al v. Canada (Minister of Citizenship and Immigration)
The applicant gave birth to a son in the period during which her application was being processed. Rather than declare the son immediately, the applicant notified officials at the time that their visas were ready but not yet delivered, 21 months after the birth. The officers found that there had been a deliberate withholding of information which would prejudice her family's visa application. The applicant had signed on her application form a declaration to immediately disclose any new or changed information. In no form that she submitted after the child's birth was she asked for additional family information, and it is not reasonable for her to recall such a standard declaration made years prior. There is no evidence to support that such information was deliberately withheld as the information was disclosed before any legal obligation under the regulations to do so. The family's application was allowed on review.