Case Commentary - 2018

Last updated: 16 October 2020

February 2018

Dimgba v. Canada (Citizenship and Immigration), 2018 FC 14

This decision is in response to the applicant’s request for judicial review. Application for permanent residence under the Federal Skilled Worker Program was refused by the Visa Officer on the grounds that the applicant’s employer was not legitimate.

The Visa Officer accused the applicant of providing a fraudulent employment letter and was not convinced that his employer was legitimate. The Visa Officer provided a procedural fairness letter expressing concerns about the legitimacy of the employer. The applicant responded and addressed the Visa Officer’s concerns by providing additional information. The Visa Officer was not satisfied with the applicant’s response and the applicant was therefore rendered inadmissible to Canada for the following five years.

While the Visa Officer claimed to have taken measures to verify the legitimacy of the applicant’s employer, there is no evidence to confirm what steps were taken.

The Visa Officer was unsatisfied with the simplicity of the company’s website and with the fact that the applicant’s phone number was listed in the company letterhead. Concerning the phone number, the Visa Officer was in possession of the contact information for the managing director and majority shareholder of the company. A minimal effort by the Visa Officer to contact them would have been sufficient to clarify this information and settle his concerns. Additionally, the simplicity of the website is irrelevant and should not have an impact on an application for permanent residency in Canada.

The Visa Officer’s conduct is regarded as procedural unfairness. Application for judicial review is granted.

 Li v. Canada (Public Safety and Emergency Preparedness), 2017 FC 1151

This decision is in response to the applicant’s request for judicial review under section 72(1) of the Immigration and Refugee Protection Act (IRPA). The applicant was a permanent resident of Canada and was ordered to face an admissibility hearing on the grounds that she had committed a misrepresentation in her application to sponsor her parents.

After an investigation by the Canada Border Service Agency, it was concluded that the applicant’s employer in Vancouver, Oxford College, was a shell corporation that provided falsified employment records to clients. The Visa Officer concluded that the applicant had made misrepresentations and lied about her employment in order to meet the financial requirements for sponsorship eligibility.

The applicant attempted to argue that she could not bear any resulting consequences as the misrepresentations were not relevant to her own acquisition of permanent resident status in Canada. Only her parents, who were innocent in the matter, could face the immigration consequences.

In order to ensure the integrity of the Canadian immigration system, applicants have an obligation to provide complete, honest and truthful information in all interactions with Immigration, Refugees and Citizenship Canada (IRCC). Accepting the applicant’s argument would allow the applicant and any other dishonest sponsors to avoid any of the moral and legal obligations that sponsorship requires of them. This would seriously bring into question the integrity of the system.

The applicant provided no justification for her actions and her conduct and misrepresentations appear to have been deliberate attempts to mislead Canada in a serious matter. Application for judicial review is dismissed.

March 2018

Garza v. Canada (Citizenship and Immigration), 2018 FC 155

This decision is in response to the applicant’s request for judicial review. Mr. Garza’s application to sponsor his wife was dismissed on the grounds that the marriage was entered into for immigration purposes.

The applicant, a permanent resident of Canada, applied to sponsor his wife, whom he’d married in 2011. The Immigration Appeals Division (IAD) rejected his application after reaching the conclusion that the true motive for sponsorship was so his spouse’s daughter could acquire status in Canada. Sponsorship for immigration purposes is contrary to section 4(1) of the IRPA.

The IAD’s decision to reject the application was based on stereotypical views of marriage between mature persons. It failed to reasonably consider the evidence before it concerning the relationship between the applicant and his spouse. The IAD had heard evidence from the applicant, his spouse and the applicant’s stepdaughter; there was proof confirming the history and development of their relationship.

Decision of the IAD does not meet the applicable standard of review and was therefore unreasonable. Application for judicial review granted.

April 2018

Alalami v. Canada (Citizenship and Immigration), 2018 FC 328

This decision is in response to the applicant’s request for judicial review. Mr. Alalami’s application for a temporary resident visa was rejected on the grounds of misrepresentation and withholding facts.

In his application form, the applicant stated that he had never been refused a visa of any kind nor been ordered to leave Canada or any other country. It later came to the attention of Canadian authorities that the applicant had been refused a US visa in 2015 and that he had failed to disclose this information.

The applicant received a procedural fairness letter notifying him of the discrepancy and he responded by saying that he had misread the question on the application form about visa refusals as only pertaining to Canada.

The Visa Officer was not satisfied with Mr. Alalami’s explanation of the oversight and found that he was inadmissible to Canada for having misrepresented material facts.

The applicant raised the argument that the Visa Officer had failed to take into consideration all relevant information at his disposal, particularly, the fact that he was a well-established business man who had been issued a multiple-entry visa to the U.S. between 2008 and 2013. Decision-makers are not obligated to refer to every single piece of relevant evidence before them; they are presumed to have considered all of the information before them in reaching their decision. The argument raised by Mr. Alalami is not sufficiently compelling to conclude that the Visa Officer erred in his decision.

Mr. Alalami deliberately withheld information about his U.S. visa refusal. Application for judicial review is dismissed.

May 2018

Wang v. Canada (Citizenship and Immigration), 2018 FC 368

This decision is in response to the applicant’s request for judicial review. His application for a permanent residence visa was refused by the Visa Officer on the grounds of misrepresentation.

While applying for a permanent resident visa, the applicant was required to complete and submit a supplementary travel history form (Supplementary Information – Your Travels, Form 5562) listing all of his travels within the last 10 years outside his country of origin or of residence. All trips, whether for tourism, business or training, needed to be declared. The applicant had only declared four trips while holding two passports — one personal passport and one public affairs passport.

A fairness letter was issued to the applicant requesting that he provide an updated list of his travels. The applicant declared that he believed only trips taken for personal reasons needed to be declared and that it was an honest mistake. He later submitted an updated form of travel history listing 78 trips.

On refusing the applicant’s application, the Visa Officer was not convinced by the applicant’s explanation that it was an honest mistake. The Visa Officer concluded that the applicant had misrepresented his travel history and that he had withheld significant information.

The applicant was aware that he held two passports and that he had made numerous undeclared trips to other countries. It was not up to him to decide what was relevant to his application. The applicant’s misrepresentation was important enough to affect the process and induce an error in the administration of the IRPA

The Visa Officer did not err in refusing the applicant’s application due to misrepresentation. Application for judicial review is dismissed.

Sevilla v. Canada (Immigration, Refugees and Citizenship), 2018 FC 424

This decision is in response to the applicant’s request for judicial review. Her third application for a work permit under the same LMIA was rejected by the Visa Officer on the grounds that she did not have 1-2 years of experience.

It is unclear from the outset where the Visa Officer found this requirement for 1-2 years of work experience. The Canadian employer had received a positive LMIA and the National Occupational Classification (NOC) for the applicant’s proposed position does not make any mention of this requirement.

The Visa Officer’s decision was therefore unjustified and amounted to an abuse of his discretion.

Application for judicial review is granted.

June 2018

Prabhsirman Singh IMM-99-18 – Discontinuance

NOTE: “Discontinuances” are not decisions of federal court; their purpose is primarily to formally terminate litigation.

The applicant filed for discontinuance in order to formally terminate litigation. The case was discontinued on April 3rd 2018.

In a request for a study permit, the Visa Officer was concerned that the applicant did not possess the financial abilities to support his study program in Canada.

The applicant’s father had provided proof of assets and funds exceeding $300,000.00 in support of the application. In compliance with IRCC guidelines, the applicant demonstrated that he had sufficient financial means to cover the first year of studies, which was estimated to amount between $15,000.00 and $25,000.00. Additionally, the applicant’s aunt, residing in Canada, stated that she would provide financial assistance to the applicant if it was required. The IRCC guidelines state that officers can take into consideration sources of funds derived from relatives in Canada.

The Visa Officer had erred in holding the applicant to a higher financial standard. He failed to take into consideration the funds that were actually at the applicant’s disposal and it was, therefore, unreasonable to reject the application on the grounds of insufficient financial means. 

The Visa Officer also raised concerns that the applicant had not been in school since 2017/05 and that he was unemployed. Considering that the applicant had recently graduated secondary school and that he was seeking to enter post-secondary education in his field of interest, it was unreasonable for the Visa Officer to take into consideration the applicant’s lack of employment or absence of enrollment in school.

The applicant is pursuing studies in Canada in order to increase his employment prospects in his country of residence. The decision of the Visa Officer was unreasonable on multiple grounds and the discontinuance is granted.

Sama Saab ET. AL. T-1169-17 2018 FC 653

Sama and Tala Saab are sisters. They became permanent residents of Canada on 30 June, 2010. They applied for Canadian citizenship on 28 September, 2016. IRCC sent them notice of concerns that the Saab sisters had not maintained permanent resident status in the interim. A subsequent notice followed. They replied to the first notice with some, but not all, of the demanded documentation; they answered the second by asserting that they were indeed permanent residents by operation of the law. IRCC subsequently treated their citizenship applications as abandoned, pursuant to Section 13.2(1)(a)(ii) of the Citizenship Act. On 4 May 2017, the sisters filed application for leave and judicial review seeking an order of mandamus to compel IRCC to finalize their citizenship applications.

The Court identified two questions for consideration: whether the Minister acted reasonably in treating the Applicants’ applications for Canadian citizenship as abandoned; and, whether the Applicants could be considered to have had permanent resident status pending final determination that such status was lost. The Court noted that the Applicants essentially claimed that their case, as presented, would constitute a mandatory (rather than discretionary) grant of Canadian citizenship.

The Court determined that the Applicants were presumptively not permanent residents at the time of their application, and that, in the absence of the Applicants furnishing a reasonable excuse to justify their failure to provide the information they were requested to provide, IRCC had acted reasonably in deeming the Applicants’ application abandoned.

Gurpreet Kaur IMM-4069-17 2018 FC 657

Gurpreet Kaur (“Applicant”) is a citizen of India who has lived for some time in Canada as a temporary worker. She is married to Surjeet Singh Nahal (“Sponsor”), a citizen of Canada originally from India. Ms. Kaur applied for permanent residence in Canada under the provision for spouses of Canadians present in Canada. The Immigration Officer refused her application on the grounds that her marriage was not genuine and had existed for immigration purposes.

The Court reviewed the Sponsor’s several prior marriages as well as the Sponsor and Applicant’s marriage to each other:

The Sponsor came to Canada sponsored by his first wife, also from India. He subsequently successively married four Indian nationals and attempted to sponsor each. His attempts to sponsor his second and his fourth wives were both successful; his sponsorship of his third wife was rejected as being the product of a marriage of convenience. The Officer noted that the Sponsor committed adultery during his four prior marriages and that some of Sponsor’s divorces were based on mental cruelty.

The Sponsor and Applicant married in 2015; in 2016, the Applicant gave birth to their daughter. In 2017 they appeared, first separately, then together, for in-person interviews with the immigration officer to answer questions to assess whether they were in a genuine conjugal relationship in Canada. The officer observed several lacunae and discrepancies between the Sponsor and Applicant’s answers, such as: the Applicant not knowing in India where the Sponsor is from; divergences about their honeymoon destination and differences regarding when they were most recently ‘intimate.’ Consequently, the Officer held that the marriage was invalid for the purposes of immigration, per subsection 4(1) of the Immigration and Refugee Protection Regulations.

The Applicant challenged the reasonableness of the Officer’s decision, and also raised the issue of the Officer’s bad faith. The Applicant argued, for example, that the Officer’s comment that while one child was not sufficient to constitute a genuine relationship on the part of the Applicant and Sponsor, two would be sufficient, was unreasonable. The Court held that the Officer was simply stating – reasonably – that a child is not, in and of itself, unimpeachable proof of the genuineness of a union. The Court found that the Officer’s consideration and evaluation of the Sponsor’s past, and the Sponsor’s and Applicant’s relationships together, were eminently reasonable, citing support from Canada (Minister of Citizenship and Immigration v. Getner) 2018 FC. The Court completely dismissed allegations of bad faith against the Officer.

The Court dismissed the application for judicial review.

July/August 2018

Harjit Singh IMM-5341-17 2018 FC 744

Singh is an Indian citizen who arrived in Canada in 2011 and filed a refugee claim. In the meantime, in September 2015, he married Julie Cohen, a Canadian citizen. She applied to sponsor him for permanent residence (family class) in June 2016. In May 2017 Mr. Singh pleaded guilty to impaired driving, relating to an incident in March 2017. In June 2017 an Immigration Officer, while affirming the genuineness of Mr. Singh and Ms. Cohen’s relationship, ruled Mr. Singh inadmissible due to criminality pursuant to Section 3692)(a) of the Immigration and Refugee Protection Act. Mr. Singh sought an exemption on Humanitarian and Compassionate (H+C) grounds, submitting that: his low education made it difficult for him to return to India, Ms. Cohen’s health concerns and economic situation would make moving to India difficult for her, and that his offence was of ‘minimal severity.’ The officer refused the exemption application, holding that: Mr. Singh had a refugee application pending anyways, Ms. Cohen’s concerns were compelling, and that Mr. Singh had demonstrated a lack of respect for Canadian law and put others at risk. In short, the Officer concluded that the H+C considerations did not trump the (criminal) inadmissibility factor in this particular case. In the interim, Mr. Singh had abandoned his refugee application.

Singh appealed; both sides agreed the standard of review was ‘reasonableness’ (per Kisana v. Canada (Citizenship and Immigration) 2009 FCA 189) and that the question was whether the officer’s determination was indeed reasonable.

The Court held that the Officer’s decision was not reasonable, as it failed to recognize Mr. Singh’s lack of prior criminal history, Mr. Singh’s expression of remorse, and the deleterious effects of separation of the couple.

The Court remanded the case for consideration by another officer.

Ali Demyati IMM-5480-17 2018 FC 701

Mr. Demyati is a Syrian national who resides in the United Arab Emirates (U.A.E.). He was accepted to Carleton University and applied for a temporary resident visa as a student. His application was rejected as not meeting the requirements of the Immigration and Refugee Protection Act or Regulations. The Court observed that “as is often the case in matters of this nature, the decision of [the] visa officer, is less than loquacious.” The officer concluded that, on the balance of probabilities, Mr. Demyati was unlikely to leave Canada at the end of his authorized stay. The Officer cited elements such as Mr. Demyati’s lack of income or savings, the ongoing armed conflict in Syria, and the fact that Mr. Demyati may lose his status in the U.A.E. at any time as factors in the determination.

Both parties agreed that the standard of review was reasonableness, as manifested by attributes such as justification, transparency, and intelligibility, in the process, bearing in mind that there may be a range of acceptable outcomes which such process produces. (Dunsmuir v. New Brunwsick 2008 SCC 9; Canada (Canadian Human Rights Commission v. Canada (Attorney General) 2018 SCC 31).

The Court noted that while there is a place for common sense in visa officer’s determinations, one may not make such decisions based merely on intuitions or hunches; doing so would lead to decisions that are insufficiently transparent or ineligible and hence unreasonable. The Court found that the visa officer followed the latter path, disregarding the applicant’s family financial support and advancing merely speculative arguments regarding the applicant’s ability or willingness to leave Canada at the expiry of his visa.

The Court quashed the officer’s determination and remanded it to another officer for a new decision.

September 2018

Mohseni v. Canada (Citizenship and Immigration), 2018 FC 795 (CanLII)

Ehsan Mohseni came to Canada on a student visa in 2013 to pursue a Ph.D. In September 2017, he applied for a temporary resident visa. On the form, he disclosed that he had previously applied for a Canadian student visa in 2012 as well as a Canadian student permit in 2016; he also acknowledged that he had travelled to the United States in 2015 and had previously been refused a visa for the “Schengen area.”

However, Mohseni failed to disclose that he had been refused a non-immigrant visa to the United States. S 40(1)(a) of the Immigration and Refugee Protection Act (IRPA) renders persons who directly or indirectly misrepresent or withhold material facts (which could or do induce error in the administration of the act) inadmissible to Canada for five years. The file notes indicate that the visa officer did not accept Mohseni’s claim that Mohseni had forgotten about the visa’s refusal given the considerable time American authorities took to issue the refusal. The officer also observed that Mohseni had clearly understood the question about visa refusal as Mohseni had disclosed his refused Schengen area visa.

The standard of review for such a case is reasonableness – that is, the person challenging the decision must, to prevail, demonstrate that it lacks the justification, transparency and intelligibility within the decision-making process or that it does not fall within a range of possible, acceptable outcomes.

Mohseni’s argument centered on his claim that he had made an honest mistake that had no prospect of inducing error in the administration of the IRPA; Mohseni also noted the hardship that denial of the visa would cause him considerable hardship. Mohseni also attempted to claim, in a new argument (outside the scope of authorized judicial submission) that since he had succeeded in his student permit application, it was reasonable to believe there would be “no issues”; the court held, based on considerable precedent, that it ought to not allow the new argument to be advanced.

The court emphasized that the refusal of a visa was a manifestly relevant and material fact which would be of importance and interest in determining visa eligibility.

Chantladze v. Canada (Citizenship and Immigration), 2018 FC 771 (CanLII)

Kakha Chantladze is a citizen of Georgia. He arrived to Canada in 2009 and failed in his claim for refugee status, subsequently becoming the subject of a removal order, apparently as yet unenforced. In the interim, in 2011, he married Lioudmilla Mikolaenko, a citizen of Canada. Later that year, he submitted an application to be sponsored from within Canada. The application received initial (Stage 1) approval, meaning the marriage was considered genuine.

The couple cohabited as spouses, apparently in Ontario, for about four years from the time of the marriage until 2015, whereupon Chantladze moved to Alberta to pursue employment opportunities. The couple provided considerable evidence that their relationship remained genuine despite the distance. Mr. Chantladze returned to Ontario in 2017 although he had a return flight booked for Alberta.

The immigration officer consequently refused the application on the basis that the couple was not cohabiting. Chantladze challenged this decision on the basis of reasonableness. The court cited other cases holding that established, genuine, couples may spend considerable time apart due to work or other commitments. Consequently, the court accepted Chantladze’s application to vacate the immigration officer’s decision and remanded the case to another immigration officer in accordance with the court’s reasons.

October 2018

Karami v. Canada (Citizenship and Immigration), 2018 FC 846 (CanLII)

Mehrdad Karami applied to immigrate to Canada as part of the Federal Skilled Worker Class. On July 24, 2017, an immigration officer rejected his application as incomplete, per s. 10 and 12.01 of the IRPA Regulations; Karami had not uploaded a copy of his current passport on his application, as was required, but had instead provided a copy of a previous, expired passport along with information on and from his current one.

Karami challenged this refusal, arguing that he had effectively provided the passport information required, even if he did not provide a copy of the passport per se. He also claimed that if IRCC had issues with his submission, it should have notified him and given him the opportunity to perfect it.

The Court assessed the case as one of mixed fact and law, subject to a standard of reasonableness; more specifically, it characterized the question as one of procedural fairness assessed on the basis of correctness. It found the impugned decision to satisfy both standards, noting that the document checklist for the program for which Karami applied clearly demanded a copy of a current passport and not a substitute therefor, and citing prior jurisprudence that IRPA Regulations clearly regarded incomplete applications as not being applications at all. Moreover, since the document checklist was clear from the onset, Karami was not entitled to further opportunity to answer its requirements.

The application for judicial review was thus dismissed.

Agapi v. Canada (Citizenship and Immigration), 2018 FC 923 (CanLII)

Ievgen Agapi, a Ukrainian citizen, applied and was accepted to immigrate to Canada through the Manitoba Provincial Nominee program in 2015. However, in 2017, an Immigration Program Manager with IRCC ruled him inadmissible, per s. 40 of the IRPA, due to alleged misrepresentation with regards to his fraudulent English test results. Agapi countered that he had taken the test in good faith, following standard practice in Ukraine, and had further enquired when concerns arose and attempted to address them to the best of his ability; hence any misrepresentation was honest and reasonable, and thus non-disqualifying.

The Court found that the Immigration Manager had failed to take into account the nature of any misrepresentation, holding that it was, in this case, the responsibility of the language school and tester (since defunct) which Agapi attended and that Agapi had acted innocently and reasonably.

The application for review was granted and the determination remanded to another decision maker.

Nur v. Canada (Citizenship and Immigration), 2018 FC 904 (CanLII)

Abdinaser Mohamed is a permanent resident of Canada. He attempted to sponsor his wife, Barwaqo Khalif Nur, (the principal applicant) and four children (minor applicants), who are all Somalian citizens, through the family class. The application for the minor children was rejected on the basis of misrepresentation, with specific regard to the children’s actual ages.

As part of the application process, the Applicant had attended, with her children, an interview at the Canadian High Commission in Nairobi, Kenya. The immigration officer believed the children to be older than the ages their mother claimed for them but decided that bone testing would be unnecessary since, in any event, they appeared to be less than 22 years of age (the limit to which one can qualify as a “dependent child”). However, the officer was concerned that the children might not actually be the biological offspring of the sponsor and principal applicant. Subsequent DNA testing confirmed that such relationship indeed exists. But, apparently, as part of this medical processing, concerns again arose about discrepancies between the minor applicants’ stated and actual ages. For example, the applicant who was claimed to be twelve years old was pregnant. The examining doctor at the International Office for Migration thus alerted Citizenship and Refugee Canada as such; in turn, the Canadian official advised the doctor to conduct bone age testing.

The results of this process indicated that one of the minor applicants was about 25 years of age, two others between 19 and 25 years of age, and one was between 18 and 25 years of age; these ages are all significantly greater than the claimed ages, the greatest of which was 15 years. A fairness letter, expressing such concerns and the potential for a determination of inadmissibility, was sent to the putative sponsor, who replied (in 2017) that none of the children could be older than 21 as his relationship with their mother only began in 1995. A subsequent letter from the Officer informed the principal applicant that the Officer was not satisfied that the minor applicants were not inadmissible, due to concerns about their actual ages and misrepresentation thereof, and hence the application to sponsor them was rejected.

The principal applicant challenged the decision, claiming it was based on irrelevant factors, such as a conflation of the claim of misrepresentation with the issue of the children’s actual status as dependent children. The respondent (the Minister of Citizenship and Immigration) argued that the lack of documentation and discrepancy between answers given at the interview and results of the bone testing made the Officer’s decision reasonable.

The court framed the relevant issue as being whether the children indeed qualified as dependent children per the Immigration and Refugee Protection Regulations, to be judged on a standard of reasonableness.

The court determined that the Officer had indeed conflated the issue of misrepresentation and the children’s status as dependents, noting that a finding of misrepresentation would be irrelevant to the determination of whether the children qualified as dependent children. The court also held that the Officer’s decision lacked sufficient explanation or analysis. The bone testing results, the court noted, would still put the children within the dependent child range. Moreover, the Officer’s report failed to mention evidence which would buttress the applicant’s claim: for example, the child who was found to be about 25 also had a medical report indicating the onset of menarche in 2013, which would be extremely unusual for a woman ostensibly already in her twenties. The court also expressed concerns with the language used by the Immigration Officer, which the court found unjustifiably dismissive and suspicious.

The court thus accepted the request for judicial review, remanding the case to another decision maker for redetermination.

Aghayere v. Canada (Citizenship and Immigration), 2018 FC 869 (CanLII)

Nosakhare Aghayere is an adult citizen of Nigeria living in Canada with his Canadian wife and three children, all of whom are Canadian citizens. Mr. Aghayere lost his Canadian permanent resident status due to criminal convictions (one count of fraud over $5,000 and two counts of fraud under $5,000).

He applied again to become a permanent resident, this time on humanitarian and compassionate (H&C) grounds, of which he cited three: hardship, his establishment in Canada (he has lived his entire adult life in Canada), and the best interests of his children.

The Immigration Officer rejected this application, noting that while the best interests of the children would be served by allowing the application, this element was not a determinative factor. Moreover, the Officer contended that although Mr. Aghayere had established himself in Canada, Mr. Aghayere’s wife was able to successfully manage Mr. Aghayere’s business in the latter’s absence, and could continue to do so were Mr. Aghayere deported to Nigeria. The Officer also held that Mr. Aghayere would face the same socioeconomic conditions in Nigeria as any other Nigerian, and that Mr. Aghayere could obviate any concerns of threats to Mr. Aghayere by his co-conspirator (who had already been deported to Nigeria) by relocating to another part of Nigeria. Mr. Aghayere challenged the Officer’s decision.

The court identified the issue at hand as whether the Officer’s analysis of H&C factors was unreasonable, the standard of review for such a decision being reasonableness.

The court determined that the Officer was indeed unreasonable in assessment of the Applicant’s rehabilitation; the Officer had noted that while over ten years had passed since the Applicant’s convictions, the Applicant had respected the conditions imposed on the Applicant, and the Applicant was motivated to remain in Canada, there was no guarantee the Applicant would not re-offend. The court found this standard to be unattainable and thus unreasonable.

The court also found that the Officer was unreasonable in his assessment of the children’s best interests. The Officer had argued that the children had already been accustomed to the absence of their father and that further separation would simply be a continuation of the status quo. The court labeled this line of reasoning a “perverse interpretation of the best interests of the child analysis.” The court also noted that the proper frame of analysis should not be the period of the father’s absence, but the totality of the relationship. Moreover, the court found the Officer had not considered evidence of a psychiatrist who found continued separation from the Applicant would be detrimental to his children.

Finally, the court examined and accepted the Applicant’s claim that the Officer was unreasonable in assessing hardship to the Applicant should be returned to Nigeria. Specifically, the court found the Officer made an unreasonable factual determination that Mr. Aghayere could simply avoid Mr. Aghayere’s vindictive co-conspirator by relocating to another part of Nigeria, whereas the co-conspirator’s whereabouts within Nigeria are apparently unknown. The court also found that the officer, in assessing hardship, imported a generalized risk test from s. 97 of the Immigration and Refugee Protection Act (IRPA) which was not suitable to a humanitarian and compassionate (s. 25) case.

The court set aside the determination of the Officer and returned to another Officer for redetermination.

Gutierrez v. Canada (Citizenship and Immigration), 2018 FC 906 (CanLII)

The Applicants, consisting of Imelda Muneton Guiterez (wife/mother), Octavio Flores Rodriguez (husband/father) and Alfonso, Raul, Maria and Octavio Flores Muneton (children) are Colombian citizens residing in Canada, having arrived in 2009.

Their application for permanent residence on humanitarian and compassionate (H&C) grounds was refused on the basis that the father and eldest son had failed to file or pay income taxes in Canada for the eight years preceding the application for permanent residence, thus showing a disregard for Canadian laws.

The Applicants challenged the Officer’s decision, which the court reviewed on a standard of reasonableness. Based on the evidence, the court held that the Officer was unreasonably focused on the tax issue (apparently arising from unauthorized employment) and had failed to reasonably address the issue of generalized hardship.

Accordingly, the court quashed the impugned decision and remanded it to another Officer for determination.

November 2018

Saatchi v. Canada (Citizenship and Immigration), 2018 FC 1037 (CanLII)

Saatchi is a citizen of Iran currently in Canada on a study permit. He has applied for permanent residency in Canada through the Canadian Experience Class (CEC). To meet requirements of this category, he cited his work at a Canadian car dealership as qualifying as Technical Sales Specialist – Wholesale Trade (NOC 6221). The visa officer, however, countered that notwithstanding Saatchi’s title at his employer as Technical Sales Representative – Wholesale Trade Specialist, the actual nature and employers’ description of Saatchi’s jobs actually made Saatchi a Retail Salesperson (NOC 6421), which would not qualify for the CEC.

The case thus hinges upon whether it is appropriate, in assessing an applicant’s application for the CEC, to look beyond the formal job title to the pith and substance (essential nature) of a job. Both parties agreed, per Dunsmuir, that the standard of review for this decision was that of reasonableness. The court examined previous jurisprudence which held that mere job titles were not necessarily sufficient in conducting such an analysis and that recourse to the actual substance of a job was warranted. Hence the court denied Saatchi’s claim for judicial review.

Saatchi had also claimed a violation of procedural fairness, arguing that the immigration office er should have given him an opportunity to respond to concerns about his claim of qualification. The court, examining the fairness claim on the standard of correctness, held that since the officer’s concerns derived directly from legislation or regulation, no duty to notify existed, and thus also rejected this claim of Saatchi’s.

Shekhtman v. Canada (Citizenship and Immigration), 2018 FC 964 (CanLII)

This case raises a rather interesting question: is a decision that one has lost permanent resident status considered to be made on the day it is issued, or rather when the person concerned actually receives it? (The answer: the latter).

Mr. Shekhtman is a Rabbi who was in Canada on temporary resident status. The authorized period ended on 30 September 2015; Mr. Shekhtman applied for an extension of this status five days before this date.  If such status is found to be lost, a person must apply to re-obtain it within 90 days after such decision is ‘made’.

Canadian immigration authorities issued a refusal decision on 14 July 2016. However, Mr. Shekhtman claims he only received this decision on 7 December 2016. The Minister of Immigration contends that the decision was sent twice, first on 14 July and then on 30 November. Mr. Shekhtman applied for restoration of his status on 6 March 2017, which would be within 90 days of when he claims he received the decision but more than 90 days from the days (14 July 2016 or, in the alternative 30 November 2016) the Minister contends Mr. Shekhtman received it.

Both parties agreed that the standard of review for this decision was that of reasonableness.

The court found that the factual record was unable to support claims Mr. Shekhtman received the refusal letter earlier than 7 December 2016, when he claims he received it. The court, examining analogous situations and principles of statutory interpretation, also agreed with Mr. Shekhtman that absurd and unreasonable results would occur would a decision on temporary resident status have been found to be made despite the lack of communication of such decision to the person affected.

The court thus granted Mr. Shektman’s request to have his case remanded to another immigration officer with the understanding that Mr. Shekhtman’s restoration application was submitted within the 90 day period. However, the court refused Mr. Shekhtman’s request for a declaration that, per 185(5)(a) of the Immigration Regulations, the meaning of when a decision is “made” refers to when it is communicated to an applicant, ruling that such declaration was simply unnecessary. The court also refused Mr. Shektman’s attempt to have Mr. Shekhtman’s costs granted, holding that this exceptional remedy was unjustified in the case.

Appiah v. Canada (Citizenship and Immigration), 2018 FC 1043 (CanLII)

The applicant is a citizen of Ghana whose application (outside of Canada) for a work permit (as a cook) was denied due to misrepresentation. The basis for this refusal was the applicant’s answer on to the question of whether he had “ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country?” On the form, Mr. Appiah had answered no, whereas in fact he had been refused a Canadian study permit sixteen years prior. This latter fact was subsequently brought to Mr. Appiah’s attention at an in person-interview, at which he claimed he may have forgotten about such refusal.

Mr. Appiah challenged the immigration officer’s determination of inadmissibility as illegal and unfair. Mr. Appiah claimed that his incorrect answer was justified under the “honest mistake exception, insofar as since he had forgotten about the earlier refusal, he honestly and reasonably believed he was not withholding information or engaging in material misrepresentation. Mr. Appiah also contended that the decision rendered was procedurally unfair inasmuch as he should have been granted the opportunity, via a fairness letter, to be made aware of and respond to concerns about his answers.

The court held that the honest mistake exception is narrow and that while it was possible that Mr. Appiah actually did forget about his previous refusal, the visa officer’s decision otherwise was entitled to deference. The court also determined that the in-person interview offered Mr. Appiah sufficient grounds to clarify any concerns regarding his application.

The court thus dismissed Mr. Appiah’s claim for judicial review.

Smith v. Canada (Citizenship and Immigration), 2018 FC 1020 (CanLII)

Mr. Smith is a citizen of Bermuda and father of Canadian-born triplets. In February 2016 he applied for an electronic travel authorization (eTA) to Canada. Mr. Smith’s application was refused for misrepresentation. Mr. Smith had replied “no” to the question, “Have you ever committed, been arrested for, been charged with or convicted of any criminal offence in any country?” whereas he should have replied yes, as he had been criminally charged in both Bermuda and the United States. Mr. Smith claimed he was the victim of an honest error and misunderstanding: his Bermudan record was expunged and the American charge dismissed.

The court, while not unsympathetic to Mr. Smith’s plight, determined that the impugned question was neither vague nor misleading, making the visa officer’s decision reasonable. Mr. Smith’s claim for judicial review was thus denied.

Cenelia v. Canada (Citizenship and Immigration), 2018 FC 942 (CanLII)

Mr. Cenelia challenged his removal from Canada, made under an exclusion order due to serious criminality. The removal order, issued in November 2014, had crystallized following Mr. Cenelia’s failure to achieve his hearing (at the Immigration Appeal Division (IAD)) thereupon which was held on 22 November 2017.

Mr. Cenelia challenged that he had not received adequate notice of the hearing; apparently, his neighbor had received the mailed notice and contacted the relevant authorities, who in turn only brought the hearing to Mr. Cenelia’s attention after it had occurred.

Mr. Cenelia held that the failure to provide him timely notification of his hearing was a violation of natural justice, particularly the fundamental rule of audi alteram partem. Mr. Cenelia also noted the high importance of the disposition to his fate and that of his spouse.

Assessing the case on the standard of reasonableness, the court held that the events as occurred constituted a denial of natural and fundamental justice to Cenelia. Consequently, the court granted Mr. Cenelia’s application to remand his case for a new hearing at the IAD.

Cojuhari v. Canada (Citizenship and Immigration), 2018 FC 1009 (CanLII)

The second sentence of this judgment is quite dramatic: “Stripped of its legalities, this case is about redemption, deliverance from sin and damnation.”

Mr. Cojuhari is a Moldovan who came to Canada in 2010 under the live-in-caregiver program (LCP). He pleaded guilty to having driven under the influence in Canada on 27 October 2012. He has applied for permanent residency under the family class. However, his conviction renders him criminally inadmissible. Mr. Cojuhari has applied in the interim for a record suspension. Mr. Cojuhari also applied for an exemption to his inadmissibility under the humanitarian and compassionate H&C) grounds, or in the alternative, a temporary resident permit (TRP). However, the immigration officer rejected Mr. Cojuhari’s both of these applications, holding respectively that circumstances did not justify an H&C exception and that Mr. Cojuhari’s application for a record suspension was not sufficient to ground a TRP.  Mr. Cojuhari challenged the officer’s decision as unreasonable. The court agreed, ruling that the officer’s decision to refuse the H&C and TRP applications were incomplete, over-restrictive, and unfair.

The court granted Mr. Cojuhari’s request for referral of his case to another immigration officer for fresh determination.

December 2018

Mukarakate v. Canada (Immigration, Refugees and Citizenship)

Facts: Male PR since 2001 from Zimbabwe applied for a Reconsideration Decision regarding a danger opinion made against him s115(2)(a) of IRPA. He held many convictions that made him inadmissible under s36(1)(a) of IRPA, and had a removal order issued in Sep2011. PR also requested a deferral of removal pending the determination of these requests, which was denied. PR filed for JR of the decision refusing the deferral and brought a motion seeking a stay of removal (interim stay granted). Request to reopen danger opinion was remitted back for determination and updated submissions were requested and provided. Request refused in Nov2017.

Issues: Did the Decision-Maker breach the duty of procedural fairness based on the legitimate expectations of the Applicant that the danger opinion be reconsidered?

Holding: Yes; Application for JR granted.

Reasoning:

  • Para 15: “it came to the attention of the Court that ENF 28 appeared to have been revised on November 21, 2017, two days before the date of the Reconsideration Decision. Those revisions included s 7.16, reconsideration of danger opinion, which was at issue in this matter”
  • Para 20: “the changes made to Manuel ENF 28, s 7.16… “In any event, to allow the Respondent to rely on a last-minute change in the Manual, without notice, would severely prejudice the Applicant and would be procedurally unfair. … if she did rely on the revised Manual, then the duty of procedural fairness required that she advise the Applicant and provide him with an opportunity to respond and make amended submissions.”
  • Para23: “if the Decision-Maker intended to rely on a version of ENF s.7.16, which post-dated the Applicant’s submissions, procedural fairness required that she alert the Applicant to this and afford him the opportunity to address this and revise his submissions (see Gill v Canada, 2012 FC 1522 at para 44).

Ratio: If changes are made to the regulations, the applicant has to have the opportunity to respond and make new submissions accordingly.

Pabla v. Canada (Citizenship and Immigration) 2018 FC 1141

Facts: Applicant (PR in Canada) travelled to India with his entire family Jan2012 to get married, where he met bride for the first. Bride’s mother was not present at the wedding because she was sick. The couple cohabited for 6 months and then Applicant returned to Canada. Applicant applied to sponsor wife. Reviewing officer believes that marriage is marriage of convenience and that the marriage was entered into in bad faith (IRPR s4(1)).

Issue: Was the officer reasonable in determining that the relationship was not genuine?

Holding: Yes

Reasoning:

  • [57] The birth of a child also created a presumption in favour of genuineness. The decision cited jurisprudence of this Court, which states that great weight must be attributed to the birth of a child, and since paternity was not questioned in this case, “it would not be unreasonable to apply an evidentiary presumption in favour of the genuineness of the marriage” (Gill 2010 at para 8).
  • [58] The presumption was explicitly applied in this case, but then rebutted. The reasons justifying the rebuttal included the following:
    • (i) a lack of knowledge a spouse would reasonably know about their partner (such as employment history);
      • In 2008, wife misrepresented on work permit application saying she had restaurant work experience in India so she could work for uncle in Canada, but had no true restaurant work experience;
    • (ii) the contradictions in the testimony as to the roles played by various persons in their arranged marriage (especially the go-between and the wife’s uncle and his son);
      • Applicant claimed that there was no specific bride in mind when travelling to India, but the go-between the bride and groom said he knew both families before the wedding and the marriage occurred quickly upon Applicant’s arrival (planning the wedding could not have been completed in that time, marriage must have been pre-arranged);
    • (iii) defects in money transfer documentation showing the Applicant’s continuing financial support of his wife; and,
    • (iv) the fact that the Applicant was not present at the birth of his son.

Ratio: Marriages that are truly non-genuine can appear genuine.

Kheradpazhooh v. Canada (Citoyenneté et Immigration) 2018 FC 1097

Facts: Iranian citizens (spouses) applied for a TRV with the purpose of evaluating Canadian markets to potentially invest through the BC PNP program. The male applicant is the chief executive officer of small family company, holding 33% of the shares, and his real estate holdings were assessed and estimated at approximately CAN$ 705,000. The applicants’ bank assets hold a total estimated value of CAN$ 65,000. The applicants’ also own an apartment in Iran, and have children of school-age (15 and 20 years old). The applicants’ children have not applied for a temporary visa and will not participate in the planned visit, as they are still in school in Iran. The spouses made their first visa application in October 2017, and were not granted a visa due to lack of contacts with the destinations (Vancouver and Montreal), and insufficient funds. They applied for a second time in December 2017 and submitted extensive documentation to establish links to their Canadian destinations and prove adequate funds. This second application was refused on March 16, 2018 on the basis that the applicants had not convinced the officer that they would leave Canada by the end of their temporary stay.

Issue: Was the officer’s refusal to issue temporary visas to the applicants reasonable in this case?

Holding: No. Application for JR granted.

Reasoning:

  • Para 18: regarding the officer’s argument that the purpose of the visit does not seem to be reasonable: “[…] a visit to explore businesses in British Columbia is a legitimate business purpose for applying for a temporary resident visa”
  • Para 18: regarding the officer’s belief that the applicants’ ties in Iran were insufficient: “the officer ignored or arbitrarily disregarded concrete evidence of the reasons for the applicants’ visit and the applicants’ very strong family and economic ties with their usual country of residence”
  • Para 19: “it seems reasonable that the applicants would undertake their planned trip to British Columbia to familiarize themselves with the real estate market conditions and investment opportunities in British Columbia before filing an official application as investors under the provincial program”

Ratio: TRV applicants interested in business immigration should be allowed to familiarize themselves with their potential real estate market opportunities.