Case Commentary - 2010
February 5, 2010: PARAMJIT KAUR GILL v. Canada (Minister of Citizenship and Immigration)
The appellant sponsored her spouse‘s entry into Canada under the family class immigration regime. She and her husband are the undisputed biological parents of a child born in Canada. Despite this fact, the application was refused on the basis that the marriage between, Ms. Gill in Canada and her husband Mr. Sandhu in India was not genuine.
In assessing the genuineness of a marriage "…great weight must be attributed to the birth of a child", notably because "…fraudulent marriages are unlikely to risk the lifetime responsibilities associated with raising a child"; particularly when the parents are persons of modest means. As such, when there is no question about paternity, "it would not be unreasonable to apply an evidentiary presumption in favour of the genuineness of such a marriage.
Only "strong countervailing evidence" can displace the significance of the birth of the child. However, in this case the countervailing evidence considered by the Board was largely trivial, inconclusive, or irrelevant. A difference in age between spouses, short periods of cohabitation, and the fact that one spouse divorced and remarried quickly thereafter do not constitute "strong countervailing evidence".
Finally, evidence bearing on one’s motive to obtain status in Canada can differ greatly from evidence relative to the genuineness of a marriage. The Board must take care not to treat these issues as one and the same.
February 22, 2010: HAMAWATTIE MANBODH v. Canada (Minister of Citizenship and Immigration)
The appellant sponsored his common-law partner’s entry into Canada under the family class immigration regime. The Visa Officer refused the application on the basis that the appellant failed to provide sufficient evidence proving joint residency.
The lack of evidence of cohabitation, coupled with the appellant’s apparent lack of knowledge about her sponsor’s employment and whereabouts, led the Visa Officer to reasonably believe that the common law relationship was not genuine and that the couple was not cohabitating.
The appellant was unable to produce joint telephone, rent and utility receipts proving cohabitation. However, more importantly, the Visa Officer called the couple at home and was given information about the sponsor’s employment that was found to be false upon verification.
February 25, 2010: MABEL SAMUEL v. Canada (Minister of Citizenship and Immigration)
The appellant based her ability to work as a day care worker on her training and experience as a primary school teacher and as head teacher in a nursery/primary school setting. She possessed no actual experience as a day care worker per se, however she argued that a supervisor of those who take care of children clearly possesses the skills to do the job of those she supervises.
The Visa Officer was not satisfied that she possessed the required experience, noting that there are many examples where people in so-called higher positions of authority do not have the skills required to perform the duties of those they delegate to. The Visa Officer was logically correct in distinguishing the skill of supervising daycare workers from the skill of taking care of small children.
The Visa Officer’s conclusion was valid as it was based on an intelligible, justified, and transparent set of reasons. Parliament gave Visa Officers the authority to employ their expertise to make such judgement calls.
November 15, 2010: RAJ RANI MINHAS v. Canada (Minister of Citizenship and Immigration)
The application was refused for lack of points. Notably, the Visa Officer did not accept the Applicant’s claim that she had a relative in Canada, her husband’s brother.
Specifically, the Visa Officer noted a significant discrepancy between the birth dates on the brother’s Canadian passport (August 26, 1963) and his 1981 Matriculation Examination Certificate (February 6, 1964). On this basis alone, the Visa Officer concluded that there was insufficient proof that the Applicant had a relative living in Canada.
The Court has previously held that Visa Officers are not required to advise Applicants of concerns of adequacy, completeness or sufficiency of documents. However, Visa Officers are required to inform the Applicant of concerns regarding accuracy or genuineness of information. To refuse an application on the basis of a potential typographical error without first having provided notice to the Applicant constitutes an unfair decision by the Visa Officer.
As no such notice was provided in this case, the application allowed.
November 30, 2010: SYED IMAM HASAN v. Canada (Minister of Citizenship and Immigration)
The Applicant had two Master’s degrees and a total of 17 years of education completed. In assessing the Applicant’s educational history under s. 78(3)(b)(i) of the Regulations, the Visa Officer refused to consider the complete study history of the Applicant and therefore did not award 25 points for education.
There is no clear statement in the Immigration and Refugee Protection Act (IRPA), its related Regulations or the Regulatory Impact Analysis Statement (RIAS) pertaining to the consideration of the complete study history of the Applicant in cases where they present two Master’s degrees.
This lack of clarity has led Visa Officers to adopt an approach which notably uses the non-legislative notion of a "line of progression" in an attempt to clarify this issue. The question is whether the use of this notion is lawful or not, to which the Court responds in the negative.
The Court is of the opinion that the two factors named in s. 78(2)(f) of the Regulation (obtaining a Master’s degree and having at least 17 years of full-time or full-time equivalent education) must be read disjunctively. In other words, if an Applicant has two Master’s degrees and a total of 17 years or more of full-time studies in their complete academic history, the last of the degrees must be assessed together with the Applicant’s complete academic history.
In this case, the Visa Officer failed to correctly apply s. 78(3)(b)(i) of the Regulations, which constituted an error in law. The application is allowed.
Certified for consideration by the Federal Court of Appeal: In assessing points for education under s. 78 of the IRPR, does the Visa Officer award points for years of full-time equivalent studies that did not contribute to obtaining the educational credential being assessed?
December 8, 2010: TANYA MASYCH v. Canada (Minister of Citizenship and Immigration)
The Applicant lived and worked as chef assistant from 2002-2006 in the UK. After submitting her application, the Visa Officer requested that she provide income tax returns relating to this employment. The requested tax returns were not provided, leading to the refusal of the file.
The Applicant’s only evidence addressing the issue of income tax was an affidavit stating that she had been working part-time, was paid in cash, and could possibly obtain a letter of reference.
Under the Immigration and Refugee Protection Act (IRPA), an applicant can be deemed inadmissible if they commit an act outside of Canada that is an offence in the country committed and that would also constitute an indictable offence in Canada. Failing to pay income tax is can be an indictable offense in Canada and constitutes an offence in the UK as well. As such, failure to pay income tax can render an applicant inadmissible under IRPA.
The Court concludes, from a combination of IRPA 16(1) and related Regulations along with relevant tax legislation from Canada and the UK, that it is neither unreasonable nor unfair for a Visa Officer to require UK income tax returns to determine the admissibility of the Applicant.
Under the circumstances, it was reasonable for the Visa Officer to conclude that he could not make a determination on admissibility without the requested documents.
December 21, 2010: MARGARITA GRAPENDAAL v. Canada (Minister of Citizenship and Immigration)
A Temporary Residence Visa (TRV) application was refused on the basis that the Applicant did not provide truthful information to the Visa Officer during the interview.
The Applicant was working for a large private investment firm in Russia. Prior to the interview, the Visa Officer found open source information regarding the employer suggesting that they took part in questionable business activities. When asked repeatedly at the interview, the Applicant stated that she was not aware of any such questionable activity.
The Court finds it difficult to accept that an educated individual with a long history close connections to the company would have no awareness of issues which had been discussed openly in the media.
Additionally, the Applicant was unable to provide a detailed CV during the interview as the Visa Officer had requested, providing various excuses as to why this was the case. However, section 16(1) of the Immigration and Refugee Protection Act (IRPA) requires those who make applications for TRV’s to produce "all relevant evidence and documents that the officer reasonable requires".
The Applicant was given ample opportunity to address the issues and disabuse the Visa Officer of any concerns, but made no attempt to do so. Her demeanour during the interview and failure to provide the requested documents diminished her credibility and failed to discharge the burden of proof that her admission to Canada would not be contrary to IRPA.
The Court finds that the Visa Officer provided adequate reasons for finding the Applicant to be inadmissible under IRPA, and did not breach the Applicant’s right to procedural fairness.
December 22, 2010: KWAKU AMAKYE BANFUL v. Canada (Minister of Citizenship and Immigration)
The Applicant applied for restoration of status as an international student. The Visa Officer refused the application on the basis that the Applicant did not satisfy the requirement of a bone fide student and was unlikely to comply with Canadian laws while in Canada.
The Visa Officer concluded that the Applicant was not a bona fide student upon review of his poor academic performance and time spent in remedial courses. He also concluded that the Applicant was unlikely to comply with Canadian laws based upon his self-admitted marijuana smoking and affiliation with known criminals.
The Visa Officer considered the Applicant’s evidence and gave him an opportunity to respond to his concerns. However, on the balance of probabilities, the Visa Officer was not satisfied that a restoration of status was in order. The Visa Officer’s conclusions were reasonable and the Court has no basis for interfering with his decision.