Case Commentary - 2013
January 13, 2013: Kevin Donald Stordock vs. Canada (Minister of Immigration and Citizenship)
The applicant’s request for an extension of his Temporary Resident Permit (TRP) was denied. The applicant is a citizen of the United States of America with several driving offences, possession of marijuana, and unpaid fines on his record. He is married to a Canadian citizen and they have a four year old daughter. The applicant’s spouse lives in Canada with their daughter, while the applicant himself resides in the United States. He was denied entry to Canada in 2006 due to criminal inadmissibility. In December 2008 he paid his outstanding fines in the US, and submitted an application for spousal sponsorship. This application is still in process, as the applicant remains criminally inadmissible until December 2013.
In 2011, the applicant received a TRP for one week to attend his brother-in-law’s wedding in Canada. The applicant has remained in Canada since that time, and applied to extend his TRP until the sponsorship application was approved, citing not wanting to be away from his family until his spousal sponsorship can be processed. The TRP application was denied. Based on their notes, the visa officer believed the applicant did not present compelling reasons explaining why the application should be approved. The officer noted that a separation of spouses is customary in cases of overseas spousal They also noted that it was the applicant’s multiple convictions, and delay in dealing with this issue, which contributed to the prolonged separation. TRPs are highly discretionary and applicants, especially if they have simply overstayed the validity of their visa, must present very compelling reasons for the requested extension. The applicant failed to do so.
Another issue raised in challenging the officer’s decision was whether they failed to take into consideration the best interests of the applicant’s child in Canada. However, the applicant only stated that he would like to remain with his child in Canada; he did not present any evidence that leaving Canada would have a negative impact on his daughter. As well, in a TRP application, the officer is not required to consider the best interests of children, unlike in a Humanitarian and Compassionate Grounds application. Therefore the application is dismissed.
January 24, 2013: Tamer El Sherbiny vs. Canada (Minister of Citizenship and Immigration)
The applicant’s application under the Federal Skilled Worker category was refused, as the visa officer only awarded the applicant 63 points. The minimum pass mark for this category is 67 points. The officer did not award points for the applicant’s alleged brother living in Canada as a permanent resident. The applicant is requesting a judicial review of this decision.
Upon reviewing the application, the visa officer noted that the applicant did not submit his alleged brother’s birth certificate as proof of relationship. As the applicant had submitted his own birth certificate, the officer saw no reason to believe that the supposed brother in Canada did not have one as well. The applicant submitted a copy of his alleged brother’s passport as proof of relationship. The officer was not satisfied that this was sufficient evidence of a family relationship, and therefore did not award the applicant the 5 adaptability points for having a relative living in Canada as a citizen or permanent resident.
The officer also expressed concern with regards to the applicant and his supposed brother’s passports; noting that they seemed to have been issued by the same person (based on the handwriting) although the issue dates were two years apart. However, upon reading the CAIPS notes, it seems that the reason for not awarding the 5 adaptability points was not due to this concern, but because the officer did not find sufficient evidence to demonstrate a family relationship. Therefore the officer was not required to inform the applicant of his concerns regarding the authenticity of the documents submitted.
The applicant received detailed instructions for submitting his complete application, and was notified that his eligibility would be determined based on the documentation submitted. These instructions specifically mention submitting birth certificates as proof of family in Canada. Although the applicant was not legally required to submit his alleged brother’s birth certificate, it is clear from the instructions that this was the type and quality of proof expected by Citizenship and Immigration Canada. It was within the discretion of the officer to find the documentation submitted to be insufficient. Therefore the application is dismissed.
January 31, 2013: Rashpal Singh Chadha et. al. vs. Canada (Minister of Citizenship and Immigration)
The applicant is requesting a judicial review of the decision to refuse his application under the Federal Skilled Worker class. He applied as an Accountant (NOC 1111) and submitted several reference letters from previous employers. While they all spoke highly of him as an employee, none of them listed the duties he performed in his position at the company. The visa officer also stated in their decision that the duties listed by the applicant in Schedule 3 did not reflect the main duties and responsibilities of the selected NOC. As the officer was not convinced the applicant had one year of experience in this profession, they determined his application was not eligible for further processing.
The applicant is requesting a judicial review based on his assertion that the officer erred in concluding he did not meet the requirements of NOC 1111. The applicant believes this is apparent. As well, the applicant states that the officer should have provided him with an opportunity to respond to his concerns. However, the applicant was provided with clear instructions as to how to complete his application. These instructions included the stipulation that employer reference letters contain a list of duties performed by the applicant. There is no indication that the officer ignored any of the evidence available to him regarding the applicant’s work experience. Since the officer was also not required in this case to notify the applicant of his concerns, the application is dismissed.
February 7, 2013: Dorka Sologuren Agama vs. Canada (Minister of Citizenship and Immigration)
The applicant submitted an application under the Federal Skilled Worker Class. Her application was refused as it fell outside the annual cap of 500 applications per National Occupation Classification (NOC) which had been imposed on her category. Although the cap for her NOC was reached on September 19, 2011, the Citizenship and Immigration Canada (CIC) website showed that as of December 1, 2011, only 458 applications had been received. The applicant submitted her file on November 14, 2011.
She argues that because CIC failed to announce when the cap for her occupation had been filled, she had the legitimate expectation that it had not yet been reached and that her application would be considered. However, there is a normal lag between the time application are received, reviewed for completeness, and when the update is posted to the website. The figures provided on the CIC website were only a guide, and there was nothing to suggest that the numbers posted were a true, accurate, and complete reflection of the applications received.
Furthermore, those applicants who submitted their applications after September 19, 2011 but before the applicant would have just as legitimate a complaint as the applicant in this case, and their applications would in fact have priority. It would not be fair to grant relief in this case without addressing the situation of the other applicants. Therefore this application is dismissed.
February 22, 2013: Janna Malika Benoit vs. Canada (Minister of Citizenship and Immigration)
The applicant submitted an application under Canadian Experience Class through her experience under NOC 6211. This application was rejected as the visa officer believed that the duties listed in the reference letter submitted by the applicant did not match the duties listed in the NOC description. As per the regulations, an applicant must perform a substantial amount of the main duties, as well as all of the essential duties of the NOC in question. However, NOC 6211 does not have any essential duties. Therefore the requirement is only that the applicant performs a substantial number of the main duties.
The officer mentioned in their notes that “ordering” and “scheduling” were done by the applicant only under the supervision of the manager. However, these activities are only components of the main duties listed in NOC 6211. It is not clear if the officer attempted at any point to determine whether or not the duties were a substantial match overall. While the actual assessment must be completed by a visa officer, the court is satisfied that the applicant at least performed some of the duties in her selected NOC, and therefore her application for permanent residency has some chance of success. Therefore, the application for judicial review is allowed. The application will be remitted back for decision by a different officer.
February 25, 2013: Farah Nauman vs. Canada (Minister of Citizenship and Immigration)
The applicant submitted her application under the Federal Skilled Worker Class. She is seeking a judicial review of the visa officer’s decision to refuse her application. In her application, the applicant indicated that she had work experience as a college or other vocational instructor (formerly NOC 4131, now NOC 4121). However, upon reviewing the reference letters submitted by the applicant, the visa officer determined that her teaching experience had been at the secondary and higher secondary levels, rather than at the college level as stipulated in the designated NOC. The officer refused the application.
The applicant argues that she should have been informed by the visa officer of the concerns regarding her work experience. As her resume indicated she taught students at the college level, she submits that the officer had a duty to allow her to clarify what level she taught at before making a decision on her application. However, it has been well established in case law that a visa officer is not required to inform an applicant if their concerns arise directly from the regulations. The officer was not convinced based on the documents submitted that the applicant had the required work experience in the eligible NOC. It is the responsibility of the applicant to submit an application which clearly demonstrated that she met the requirements. Therefore the application for judicial review is dismissed.
March 18, 2013: Tahir Muhammad Abbasi et. al. vs. Canada (Minister of Citizenship and Immigration)
The applicant submitted his application under the Federal Skilled Worker Class, claiming work experience as a Restaurant and Food Service Manager, which falls under the National Occupation Classification (NOC) 0631. He submitted a letter from his employer which stated he worked at McDonald’s Pakistan as 2nd Assistant Manager and included a list of his duties.
The visa officer refused his application. However, the reasons for refusal are unclear. The officer stated in his notes that he was not convinced that the applicant had performed the main duties of the NOC. The regulations only require that the applicant perform a substantial number of the main duties. It is unclear whether or not the officer evaluated the applicant’s work experience based on this standard or not. While an officer’s reasons for refusing an applicant do not need to be extensive, they must be justifiable, and demonstrate that the officer performed his or her duty. Therefore the application for judicial review is allowed.
June 20, 2013: Sandra Brown vs. Canada (Minister of Citizenship and Immigration)
The applicant’s application for permanent residency under the Federal Skilled Worker Class was denied as she only received 66 of the required 67 points. In her application, she requested a substituted evaluation should she not receive enough points. However, the officer determined that the points which had been awarded were an accurate reflection of the applicant’s ability to become economically established in Canada.
The applicant contends that the officer did not take into account the fact that her two sons were in the final stages of their application for permanent residence, and would soon be in Canada and able to offer her economic and social support. However, the respondent submits that this information was not included in the applicant’s original application, and that she did not make it clear to the visa officer that this was her reason for requesting a substituted evaluation. The sworn affidavit the applicant submitted to the court simply states that the law firm represented the applicant’s sons in their applications for permanent residency and included several important dates related to these applications. As such, there is no evidence showing that these applications were part of the record before the officer. Therefore, the application for judicial review is dismissed.
June 20, 2013: Mamdouh Issa Albajjali vs. Canada (Minister of Immigration and Citizenship)
The applicant applied under the Federal Skilled Worker Class. His application was denied as he did not receive the required 67 points. Although the applicant claimed to have a maternal uncle in Canada, the officer reviewing his application did not award adaptability points for this relative. The officer was not satisfied that the documents submitted with the original application demonstrated a blood relationship between the applicant and the relative in Canada, as the applicant did not submit birth certificates for his mother and his uncle in Canada. Therefore, the application for judicial review was dismissed.
June 27, 2013: Khosro Sepehr Tamaddoni et. al. vs. Canada (Minister of Immigration and Citizenship)
The applicant submitted an application as a Federal skilled worker, which was denied for insufficient points. The issue in this case is the officer’s decision to not award the applicant any points for adaptability based on his accompanying spouse’s education. The officer determined that the spouse had only completed secondary school education, which receives no points.
The applicant states that a closer review of their application would show that his spouse had completed several courses, including pre-university studies. He states that if the officer had considered these, the application would be been award additional points. However, the pre-university courses the spouse had taken, for which she had received a certificate of completion, cannot be considered to be a ‘diploma’. Nothing states that these courses led to the award of any diploma or degree. Furthermore, the applicants themselves indicated in the forms they submitted that the spouse had only completed secondary school. Therefore the application for judicial review is dismissed.