January 2017

Kozul v. Canada, 2016 FC 1316

The applicants submitted a Labour Market Impact Assessment [LMIA] in order to hire a Temporary Foreign Worker [TFW] as a copper sheet metal worker. The Officer refused the LMIA application on the grounds that the applicants did not demonstrate a sufficient effort to hire Canadians or permanent residents. In addition, the Officer obtained information that there was no labour shortage for copper sheet metal workers.

This case concerns whether the officer’s decision was reasonable.

The facts pertinent to this case are that the applicants posted job postings twice in the Toronto Star, Workopolis.com and Indeed.ca, as well as contacting the Carpenters and Allied Workers Union. None of the candidates possessed the required 3 years’ work experience and the Carpenters and Allied Workers Union indicated it had no experienced candidates at that time.

The court ruled that the Officer’s decision was unreasonable because the Officer never communicated the information obtained regarding no labour shortage to the applicants. The officer thus did not provide them with the opportunity “to comment or contradict” this undisclosed information.

The application for judicial review was granted.

February 2017

Tsaraosi v. Canada, 2017 FC 59

The applicant applied for a study permit which was denied because the Applicant’s plan of studies were not reasonable. In addition, he was refused because he had strong ties to Canada and because of his previous immigration history, where his family was refused refugee status in Canada.

This case concerns whether the Officer’s decision was reasonable.

The court reached the conclusion that the Officer’s decision was unreasonable, notably because the Applicant was an honour student at George Brown College when he had previously studied in Canada. The court also found no evidence to suggest his plan of study was unreasonable. In addition, the Applicant had no close ties in Canada, as all his family was reestablished in Greece.

The court therefore granted judicial review and the application was submitted to a different Visa Officer.

Shomali v. Canada, 2017 FC 1

The applicant was no longer considered as a dependent child on his father’s application for permanent residence because he took a 6 month absence from his post-secondary studies, and thus was not enrolled continuously.

This case concerns whether the Officer’s decision to no longer consider the Applicant as a dependent was reasonable.

The court ruled that the Officer’s decision was reasonable because the applicant took a 6 month leave of absence to complete his compulsory military service with the armed forces of the Islamic Republic of Iran. The applicant’s transcripts noted a 6 month “educational leave”. Thus, the court found that the applicant did not meet the requirement of being “continuously enrolled as a student”.

The application for judicial review was therefore dismissed.

March 2017

Kaur v. Canada, 2017 FC 180

The applicant submitted an application for permanent residence as part of the provincial nominee program [PNP] of British Columbia. The application was refused because the Officer found the applicant did not meet the Canadian Experience Class [CEC] program requirements and therefore did not qualify as a provincial nominee.

This case concerns whether the Officer’s decision was reasonable.

The officer refused the application because the applicant did not provide enough evidence to show what duties and actions she had performed during her employment. The court ruled this decision was reasonable.

The court reminded that when an applicant is nominated under the Provincial Nominee Program through Express Entry, that applicant must still meet the requirements “for at least one of the federal immigration programs (Federal Skilled Worker Program, Federal Skilled Trades Program, and/or Canadian Experience Class)”. If the applicant does not meet one of these requirements, they no longer qualify as a provincial nominee.

The court also clarified that “the Officer did not have a duty to inform the Applicant that her application was incomplete, nor to give her the opportunity to file all the required documents which had been missing with the application she had submitted”. It is the applicant’s responsibility to ensure the application is complete.

The application for judicial review was therefore dismissed.

Ilesanmi v. Canada, 2017 FC 137

The applicant submitted an application for permanent residence under the Federal Skilled Worker program which was refused because the applicant failed to meet the financial requirements of the program.

This case concerns whether the Officer’s decision was reasonable.

The facts relevant to this case are as follows: the applicant was allowed an extension to submit additional information to demonstrate he met the financial requirements. The original bank statement submitted contained overall low balances and one large unexplained deposit and the second statement submitted no longer contained the large balance.

The Court ruled the Officer considered all the information provided and the decision to refuse the application was reasonable. Reasons for this include: the applicant failed to explain the presence of the large deposits in the account and then also failed to explain what happened these sums.

The application for judicial review was therefore dismissed.

April 2017

Singh v. Canada, 2017 FC 26

This decision is a judicial review of an Officer’s decision to refuse the Applicant’s PR application (FSW program) because he did not provide a qualifying letter of employment. The Applicant submitted his LMIA approval letter and a letter from Horizon confirming his current employment. The Officer found that these documents did not meet the criteria for a qualifying letter of employment set out in the Ministerial Instructions Respecting the Express Entry System as well as s.82(2)(c) of the IRP Regulations. Specifically, the application did not include a “forward-looking offer of employment for continuous, full-time work signed by both the Applicant and the employer”. The Applicant was therefore ranked below the threshold of points needed to qualify under the Express Entry Comprehensive Ranking System. The Court found that the Officer’s decision was reasonable. The application was therefore dismissed.

Mata v. Canada, 2017 FC 200

This decision is a review of a CBSA Officer’s decision ordering the exclusion of the Applicant from Canada because she was not a bona fide visitor. The Applicant was financially supported by her fiancé living in Montreal. She had sold her vehicle and had left her remaining possessions at a friend’s house in Georgia.  She had no return ticket back to the USA. Furthermore, her fiancé confirmed that the Applicant was living in Montreal with him and that she intended to stay in Canada. The Court found that it was reasonable for the Officer to conclude that the Applicant had provided insufficient evidence of ties with her country of residence that would have motivated her to leave Canada when required.  The application was therefore dismissed.

Njoroge v. Canada, 2017 FC 261

This decision is a review of an Officer’s decision to exclude the Applicant’s same-sex partner from her PR application. Subsection 1(3)(a) of the IRPR defines a family member as including a spouse or common-law partner. The Officer found that the Applicant’s same-sex partner does not meet the definition of a common-law partner under subset 1(1) of the IRPR because the two had never cohabitated. The Applicant’s same-sex partner also did not satisfy the definition of conjugal partner as set out in s.2 of the IRPR and by the Supreme Court in M. v. H. 1999 SCC 686. The Officer found that while a relationship did exist, it did not rise to the level of a conjugal relationship. Specifically, the relationship lacked a strong degree of interdependency to satisfy the definition of a conjugal partner. The Officer characterized the relationship as one of “girlfriend girlfriend”. The application was therefore dismissed.

Singh v. Canada, 2017 FCC 132

This decision is a review of an Officer’s decision to reject an application for PR (FSW program). The Officer found that the Applicant failed to disclose his employment as an auditor in India in previous applications for student and temporary work visas. In response to the Officer’s fairness letter, the Applicant attached documents verifying his internship and subsequent employment with the accounting firm. The Court found that the Officer failed to refer to the evidence provided in response to the fairness latter and explain why it was insufficient to overcome the initial concern. This was deemed unreasonable. In addition, the Officer’s concern regarding the overlap between the Applicant’s accounting studies and internship was misplaced. The Court pointed out that “studying and working at the same time was not suspicious – it was expected”. The application was therefore allowed and to be redetermined by a different decision maker.

Dong v. Canada, 2017 FC 229

This decision is a review of the IAD’s decision to reject the Applicant’s request for humanitarian and compassionate (H&C) relief. The Officer found that the Applicant paid for a marriage of convenience in order to immigrate to Canada. When deciding whether to grant H&C relief, the IAD must use the factors outlined in Ribic v. Canada as adapted for misrepresentation. The Court found that the IAD correctly assessed the factors. The onus is on the Applicant to present sufficient evidence to obtain H&C relief. The IAD’s conclusion that the Applicant failed to provide sufficient evidence was reasonable. The Application was therefore dismissed.

Zhong v. Canada, 2017 FC 223

This decision is a review of an Officer’s decision rejecting an application to be considered on H&C grounds after the Applicant could not be included in her parents’ application as a dependent child, given that she is neither their biological nor their adoptive daughter. The Officer found that the Applicant was not a dependent child in s. 2 IRPR and therefore did not meet the requirements of paragraph 117(1)b of the Regulations. In response to the Officer’s concerns, the Applicant’s mother explained why they never disclosed the fact that the Applicant had been abandoned by her biological parents. Additionally, the Applicant presented a certificate issued by the City of Fuqing and the family’s health card, official government documents which the Applicant says confirm she has been living with Zhong and his wife as their daughter. The certificate from the City of Fuqing states that the Applicant is in a de facto adoptive family relationship with Zhong and his wife. The Court found that deference is accorded to administrative decision makers and that they do not have to explicitly address all pieces of evidence in their decisions. However, Cepeda-Gutierrez v. Canada 1998 FC 8667 notes that the more important the evidence that is not mentioned specifically and analyzed in a decision-maker’s reasons, “the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact ‘without regard to the evidence”. The Court found that the Officer never referenced the certificate issued by the City of Fuqing and the family health card. The Officer’s decision was therefore unreasonable. The Court, therefore, allowed the application for judicial review and to be redetermined by a different immigration officer.

May 2017

Jain v. Canada, 2017 FC 377

This decision is a judicial review of an Officer’s decision to refuse an application for PR (FSW program) because he was not satisfied with the Applicant’s ability to become economically established in Canada. Although the Applicant showed evidence of significant financial assets, the Officer concluded that this does not equate to the economic establishment. The Officer also noted that the Applicant had previously failed to meet residency requirements and therefore lost PR status in 2014. The Officer found no evidence of the Applicant’s efforts to seek employment in Canada. The Court agreed with the Officer when he stated that settlement funds alone are not indicative of the likelihood of economic establishment (Xu v. Canada, 2010 FC 418). The Court found that the Officer’s decision was reasonable given the lack of evidence showing the Applicant’s efforts to find work in Canada. The application was therefore dismissed.

Reinholz v. Canada, 2017 FC 389

This decision is a judicial review of an Officer’s decision to refuse an application for PR (Ontario PNP program) because the Applicant failed to submit a medical exam for his non-accompanying dependent daughter. Dependent family members, whether accompanying or not, must undergo a medical exam (s. 23biii, 30(1)ai, 72(1)eiii IRP Regulations). Polish court documents state that the Applicant and his ex-wife share joint custody of their daughter. However, the Applicant has very restrictive rights to his daughter de facto. Specifically, he has no custodial rights and very limited visitation rights. Contrary to the Officer’s findings, the Applicant cannot insist on obtaining a medical exam for his daughter in spite of her mother’s refusal. The Court found that the Officer’s decision was unreasonable. The application was therefore granted.

June 2017

Noor v. Canada, 2017 FC 442

This decision is a judicial review of an Officer’s decision to refuse an application for a student visa.

The Officer was not satisfied that the Applicant had sufficient funds to support his studies. Although the Applicant provided a bank statement showing a balance of $47 000 USD in his brother’s bank account, there was no information before the officer indicating that his brother had agreed to pay for his studies.

The Officer was also concerned about the Applicant’s proposed course of study. The Court found that this conclusion was reasonable. Studies in acting do not reflect a logical career progression in light of the Applicant’s previous studies in science and technology.

The application was therefore dismissed.

Patel v. Canada, 2017 FC 472

This decision is a judicial review of an Officer’s decision to refuse a work permit.

The Officer found that the Applicant had been refused two US visas in 2015 despite having declared that she had no previous refusals. The Court found that the Officer did not treat the Applicant unfairly given that a letter setting out these concerns had been sent to him.

The Court found that the Officer’s assessment was reasonable given that a person is inadmissible to Canada if she “withholds material facts relating to a relevant matter that induces or could induce an error in the administration of the Immigration and Refugee Protection Act (art. 40(1)a)” . The Court found that the Applicant does not fall within the exception for errors that are both honest and reasonable.

The application was therefore dismissed.

Tosic-Kravic v. Canada, 2017 FC 452

This decision is a judicial review of an Officer’s decision to refuse an application for sponsorship under the family class.

The Officer found that the sponsor did not meet the minimum necessary income required to sponsor her parents. The Officer removed EI regular benefits and financial assistance from the sponsor’s 2013 income calculation. Subsequently, the sponsor’s income was below what was required. The Court found that this conclusion was reasonable. Article 134(1.1)b(iv) of the Immigration and Refugee Protection Regulations explicitly states that a sponsor’s income cannot include “any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits.”

The Court found that the Officer did not breach his duty of procedural fairness. Kaur Sidhu v. Canada indicates that this duty falls on the lower end of the spectrum in an application for sponsorship given that a positive or negative decision does not significantly impact the fundamental rights of the individual.

The application was therefore dismissed.

Gonzalez v. Canada, 2017 FC 448

This decision is a judicial review of an Officer’s decision to refuse an application for PR on humanitarian and compassionate (H&C) grounds.

The Officer found that the Applicants failed to provide sufficient evidence that a removal to Mexico would be contrary to the interests of their three sons. The Officer recognized the existence of inferior educational prospects, healthcare availability and security in Mexico. The Officer, however, concluded that “the comparative socioeconomic advantage that Canada offers is not in and of itself a determinative factor in this application”.

The Court found that the decision was unreasonable. The Officer failed to justify the conclusion that the socio-economic advantage in Canada was not determinative. The Officer also failed explain why a removal to Mexico would not be contrary to the children’s best interests.

The application was therefore allowed.

July - August 2017

Patel v. Canada (Citizenship and Immigration), 2017 FC 570

The applicant applied for a study permit which was denied by the visa officer. The application was denied on the basis that the applicant failed to provide evidence that she would be able to support herself financially during her studies without working in Canada and because she failed to show an establishment in her chosen field of study.  

This case concerns whether the Visa Officer’s decision was unreasonable and whether he erred in law by failing to provide intelligible reasons for the refusal.

The court concluded that the Officer’s decision was reasonable, notably because the applicant was unemployed since graduating from her bachelor’s degree and therefore failed to provide any evidence of relevant work experience in her field. Additionally, she failed to present evidence of sufficient income that would have allowed the visa officer to conclude that she was economically stable.

The application for judicial review was therefore dismissed.

Hamad v. Canada (Citizenship and Immigration), 2017 FC 600

The applicant applied for a study permit which was denied because the Visa Officer was doubtful of the applicant’s intentions to study in Canada and that he would not remain in Canada once the Visa expired. The reasons listed in the applicant’s “affidavit on purpose of visit” were vague and unconvincing.

This case concerns whether the Visa Officer’s decision to refuse the application was reasonable.

The court ruled that it was reasonable for the Officer to conclude that a gap in the applicant’s studies put into question the legitimacy of his application. They concluded that it is the responsibility of the principal applicant to prove to the visa officer that they will not remain in the country after the expiration of the visa. In this case, the applicant did not provide sufficient evidence.

November 2017

SHUKRIA NASIRY IMM-2391-17 (discontinuance)

In March 2011, the applicant filed an application to sponsor her husband and his three dependent children for permanent residency in Canada. In August 2014, CIC refused the application on the basis that the PA’s spouse failed to comply with their requests for further medical examination for one of his children. The applicant appealed the decision and the file was re-opened for processing in 2015.

This case concerns the unreasonable and extraordinary delay in the completion of background checks by the CIC. This application has been under review since 2011.

The processing time of the application has gone well beyond the standard processing time frames expected by the CIC, which do not go beyond 22 months.

The CIC has yet to provide an estimated timeframe for completion after nearly six and a half years of processing and has not provided any justification for their delays in conducting the necessary background checks for this application.