Case Commentary - 2019

Last updated: 16 October 2020

January 2019

Saltarelli v. Canada (Public Safety and Emergency Preparedness), 2018 FC 1292 (CanLII)

Facts: Fabrizio Saltarelli is an Italian citizen. He acquired Canadian permanent residency in 1965. In 2010, a deportation order was issued against Saltarelli following his conviction for fraud over the amount of $5,000. Saltarelli sought deferral of his removal to a Canadian Border Services Agency (CBSA) Officer (“Officer”). The Officer denied this request.

Saltarelli is in a common-law relationship with a Canadian resident and stands in a parental relationship with her two minor children. Saltarelli claimed that the Officer had committed a reviewable error by failing to consider the best interests of the two step-children. The Minister of Public Safety and Emergency Preparedness (“Minister”), the Respondent, claimed that the officer was only required to consider the short-term of interests of the children

Issues: 1) Was the Officer required to consider the short-term best interests of the children, 2) Did the Officer indeed do so?

Holding:  1) Yes. 2) No. Consequently, the Court allowed the application for judicial review. Saltarelli’s case was remanded to a different officer.

Reasoning: “I acknowledge that the Officer was not obliged to conduct a full analysis of the best interests of the children, on the basis of humanitarian and compassionate factors. However, I am not satisfied that the Officer reasonably considered the short-term interests of the children. The decision does not mention those interests.” [9]

Ratio: Failure to consider the short-term best interests of the children of a potential deportee can vitiate the deportation order.

Jones v. Canada (Citizenship and Immigration), 2018 FC 1070 (CanLII)

Facts: Carrift Kenton Jones has lived a complicated life. A citizen of Jamaica, he came from that country to Canada as a youth in 1999, whereupon he received permanent resident status. After a period of homelessness, he formed a relationship with his current spouse in 2001; they began living together in 2004, had a daughter in 2006, married in 2015, and had a son in 2016. In 2002, Jones was convicted of assault with a weapon; an inadmissibility hearing ensued, and a deportation order was issued against Jones in 2003. In the interim, in 2011, Jones was convicted of manslaughter. 

Jones challenged the finding of inadmissibility on humanitarian and compassionate (H+C) grounds. A senior immigration officer (“Officer”) rejected Jones’s claim. In turn, Jones sought judicial review of this denial, claiming it was unreasonable

Issue: Was the Officer’s decision denying the H+C claim reasonable?

Holding: No. The decision as thus set aside and sent to another decision maker.

Reasoning: The Court found that the Officer indeed gave ample consideration to the potential impact of deportation on Jones’s daughter, as well as the possibilities of hardship Jones would face upon return to Jamaica. However, the Court also found that the Officer had failed to consider or give due weight to substantial evidence of Jones’s rehabilitation post-conviction and establishment in Canada. The Court described as ‘troubling’ the Officer’s apparent focus, in the H+C analysis, on Jones’s criminality. [43]

 Ratio: H&C applications must avoid undue focus on past criminality, and instead focus on rehabilitation. Failure to do so may vitiate a denial. 

Kassab v. Canada (Citizenship and Immigration), 2018 FC 1215 (CanLII)

Facts: Zalgol Kassab is a citizen of Iraq. He has a wife and three adult daughters. A Ph.D. in electrical engineering, Kassab held a variety of positions in the Iraqi civil service, taking early retirement in 2000.

In 2015 the Applicant and his wife applied to Canada permanent refugee status as sponsored refugees. At an interview in 2016, a visa officer questioned Kassab about Kassab’s work experience with the Iraqi government; the officer found the Kassabs were indeed convention refugees but reserved the officer’s decision pending further investigation into the nature of the Applicant’s employment. In 2018 Kassab received a fairness letter from a visa officer indicating that Canada had designated the Iraqi governments in power from 1969 to 2003 as a regime that engaged in serious human rights abuses and contending that the Kassab had held several positions which fell into the top half of the Iraqi government’s hierarchy. The officer consequently determined there were reasonable grounds to believe that Kassab had been a senior official in a designated regime, and was consequently inadmissible pursuant to paragraph 35(1)(b) of IRPA; this section proscribes individuals who “being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity …”

The procedural fairness letter, received 5 March, 2018 gave Kassab 30 days to respond. Kassab replied on 28 March, 2018, contending that he was never a senior official as contemplated by IRPA, and moreover had been excluded from senior roles due to his religious beliefs; Kassab also provided an affidavit and supporting documents which attested to his faith and military experience. On 11 April, 2018 an Officer confirmed the denial of the permanent visa grounds due to inadmissibility concerns obtaining from s. 35(1)(b). The Global Case Management System (GCMS) notes indicate that the Officer found neither Kassab’s (minority) religious identity nor his lack of affiliation with the Ba’ath Party to be relevant, and that it was reasonable to conclude Kassab was within the top 50% of the Iraqi government public service during the designated regime period.

Issues: 1) Was the Officer’s decision reasonable? 2) Is being within the top 50% of a government sufficient to make one a senior official thereof per 35(1)(b) of IRPA?

Holding: 1) No. 2) Unclear. Question certified to Federal Court of Appeal. 

Reasoning: The Court observed that a jurisprudence has indeed emerged (Sekularak v. Canada 2018 FC 381 at para 5) which holds that a determination that a person was in the top half of the military hierarchy for a designated regime is sufficient to hold that the person ‘qualifies’ under 16(e) as a senior military official. But, noted the Court, such approach does not appear to have been adopted with regards to section 16(d), i.e. civil officials. Moreover, noted the Court ENF 1: War Crimes and Crimes Against Humanity Manual (the “Manual”) urges officers to apply a functional approach to analysis of whether a person was indeed a senior official; the Officer, however, had disregarded Kassab’s claim that Kassab was unable to exercise significant influence.

2) The Federal Court of Appeal is asked to definitively dispose of this question.

Ratio: A person being in the top 50% of a regime may not be sufficient grounds to consider them a “senior official” for the purposes of IRPA 35(1)(b).

Noor v. Canada (Citizenship and Immigration), 2018 FC 1293 (CanLII)

Facts: Amnik Singh Noor is an Indian national. He came to Canada in 2004 as a permanent resident, pursuant to sponsorship by his wife. Noor had trained as a physician in India but was unable to find work in the medical field when he came to Canada. Between 2005-2010, he worked in positions that were not related to his training.  In 2010, Noor decided to return to India to upgrade his qualifications as a doctor. This plan, undertaken with the consent and support of his wife, envisioned Noor returning to Canada after obtaining further qualifications. Noor spent a total of 20 days in Canada in the five-year period between November 2010 and November 2015. Noor requested a travel document in 2015; h he acknowledge his absences from Canada and failure to meet residency requirements, explaining that he was studying in India and asking that the best interests of his child be considered. The immigration officer denied the requested document.

Noor exercised his right to appeal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), specifically with regards to the positive discretion on humanitarian and compassionate (H+C) grounds.  The IAD dismissed Noor’s appeal. It held that several aggravating factors existed with regards to H+C discretion: the reasons for Noor’s departure from Canada; the reasons for his lengthy stay abroad; and his failure to make efforts to return to Canada at the first opportunity. Meanwhile, the IAD assessed other factors as “neutral”: the applicant’s establishment in Canada; hardship from loss of permanent resident status; and the best interests of the child. Noor claimed that the IAD committed reviewable errors by failing to understand the evidence, in its analysis of H+C factors and in its lack of reasons in its decision.

Issue: Was the IAD’s decision reasonable?

Holding: Yes. Application for judicial review denied.

Reasoning: Adequate consideration of relevant factors.

Ratio: Various ‘aggravating factors,’ such as lack of immediate attempt to return to Canada, can ground denial of one’s H&C application, when seeking an exception to permanent residency requirements.

Nsiegbe v. Canada (Citizenship and Immigration), 2018 FC 1262 (CanLII)

Facts: Nne Modeline Nsiegbe is a citizen of Nigeria and a nurse. Her application for a Canadian study permit was denied. At the time of the application for the permit she was working in Saudi Arabia on a work permit, with a leave of absence granted for studies. The Officer denied her application on the basis that Nsiegbe had not satisfied the Officer that Nsiebe would leave Canada at the end of her stay or that Nsiegbe had sufficient financial resources to stay in Canada. The Global Case Management System (GCMS) notes indicate the Officer expressed concern over limited evidence of the Applicant’s establishment in Saudi Arabia; the Officer suspected that recent transfers to Nsiegbe’s bank account were done for the purpose of inflating her financial resources and may not have come from her regular employment income. Nsiegbe sought judicial review of the decision. Specifically, she contended the Officer made a decision inconsistent with the evidence Nsiegbe provided, and that the Officer breached the requirements of procedural fairness by failing to give Nsiegbe opportunity to respond to any concerns.

Issue: 1) Was the Officer reasonable in holding that Ms., Nsiegbe made transfers just to inflate her bank account 2) Was the Officer correct in focusing on Ms. Nsiegbe’s potential return to Saudi Arabia? 3) Was Did the Officer breach procedural fairness by failing to give Ms. Nsiegbe the opportunity to reply to his concerns?

Holding: 1) No. 2) No.  3) Yes. Accordingly, the decision was deemed unreasonable and quashed and sent to another decision maker for redetermination.

Reasoning: 1) There is no evidence Ms. Nsiegbe was engaged in anything disreputable; she simply transferred money from one account to another 2) The Officer’s assessment that Nsiegbe was unlikely to return to Saudi Arabia missed the point; it was acknowledged that Nsiegbe’ s status there was temporary. The Officer should have looked to Nigeria, instead 3) Ms. Nsiegbe was entitled to reply to the Officer’s concerns.

Ratio: 1) Mere transfer of funds from one account to another is not inherently problematic. 2) Focus should be on an applicant’s potential return to where they are eligible to return, not where they had/have been living immediately previous to the application. 3) Procedural fairness requires a person be given the opportunity to respond to concerns against them.

Jalili v. Canada (Citizenship and Immigration), 2018 FC 1267 (CanLII)

Facts: Halima Jalili is a citizen of Afghanistan and resides there. She is a widow and lives in Kabul with two daughters and three grandchildren. Jalili has a biological son, Mahboob Salam who lives in Etobicoke, Ontario with his family. In 2000, Salam moved to Canada as an adult with his adoptive family and became a Canadian citizen in 2016; Salam’s adoptive parents are deceased. In 2013 he travelled back to Afghanistan and met Jalili; according to Salam they have since developed a close relationship. Salam invited Jalili to come to Canada so she could spend more time with him and meet his children. Jalili consequently applied for a temporary resident visa (TRV) in January 2018. In January 2019, this application was denied based on insufficient documentation of Salam’s income and assets and lack of proof of complaint medical insurance for Jalili. She re-applied, apparently shortly after this denial, this time including information on Salam’s employment and financial status and submissions indicating Jalili’s ties to Afghanistan, such as letters from her two daughters there. Per decision of 4 May, 2018, this second TRV was also denied.

The Officer stated that s/he was not convinced that Ms. Jalili would leave at the end of her TRV. The Officer argued that adoption severs the ties between birth family and adoptee and as such Jalili could not be considered a member of Salam’s family. Jalili’s financial and personal ties to Afghanistan were relatively weak, according to the Officer. Moreover, given the difficult political and security situation in Afghanistan, Jalili would be incentivized to remain in Canada.

Jalili challenged the denial of the TRV.

Issue: Was the officer reasonable in denying Ms. Jalili the visa to Canada, on grounds that she was unlikely to return to Afghanistan?

Holding: No. The decision was quashed and remanded to another Officer.

Reasoning: The Court turned its attention to the Officer’s determination that Jalili had weak ties to Afghanistan. The Court found that the Officer’s conclusion in this matter was unsupported by the evidence, as there was other proof that she indeed had strong ties to Afghanistan. The Officer’s determination was unreasonable.

Ratio: An Officer must give full consideration to a potential visitor’s ties to their home country when considering a visa application. 

Tahhan v. Canada (Citizenship and Immigration), 2018 FC 1279 (CanLII)

Facts: Tahhan, a Syrian national, committed several serious crimes (thefts) in the United States between 2004 and 2008 and served jail time there. He was deported to Syria. Life there, was as one might imagine, difficult. In January 2011 Tahhan came to Canada on a study permit, having not disclosed his convictions. He completed a B.B.A. and is gainfully employed with no evidence of any criminal behavior since his arrival in Canada.

Tahhan applied in August 2017 for permanent residence on humanitarian and compassionate (H+C grounds), at which time he revealed his prior convictions. Tahhan was ineligible for deemed rehabilitation and sought rehabilitation in a separate application. The demand for such rehabilitation is and proceeded in a two-stage process. In the first, one officer reviewed the application and made a negative recommendation. In the second, another officer, the Minister’s Delegate made a final, again, negative, decision.

The first officer’s report highlighted Tahhan’s repeated refusal (on six different temporary residence permits) to disclose Tahhan’s criminal history and reasons for such misrepresentation. The second reviewing officer’s assessment was similar.

Tahhan contended that he concealed his criminal record to save his life and escape persecution in Syria. Moreover, claimed Tahhan, the officer failed to account for the key factor – Tahhan’s likelihood (or lack thereof) to re-offend. The Minister responded that it was open to the officer to find that Tahhan’s dishonest behavior spoke for itself and demonstrated a lack of rehabilitation.

 Issue: Was the Officer unreasonable in denying Tahhan’s H+C application?

Holding: Yes. The initial decision was vitiated and sent back for redetermination.

Reasoning: The Court found that the officer was unreasonable in drawing adverse inferences from Tahhan’s prior misrepresentations so as to negate any serious consideration of whether Tahhan would actually re-offend. The judgment noted that Tahhan had reasons for not disclosing his criminal history and eventually did disclose it, commenting “better late than never.”

Ratio: The focus in H&C applications with criminal background should be on whether a person will actually re-offend. A person may have compelling reasons for not disclosing past criminal history. 

Shin v. Canada (Citizenship and Immigration), 2018 FC 1274 (CanLII)

Facts: This is a complicated case, involving several countries and four applicants: an adult male (Shin) and female (Kim) married to each other, along with Kim’s two minor daughters. Shin was born in North Korea in 1970. He claims he was twice deported by China to North Korea, where he experienced torture. In 2002, Shin made his way to South Korea and became a citizen there. In 2012, Shin entered Canada along with his ex-wife and child of that marriage, as refugee applicants; they entered under false identifies, concealing their South Korean citizenship. In 2014, Following discovery of their real identities, their claims were rejected.

Ms. Kim was also born in North Korea, claims torture in China, and escaped to and received citizenship in, South Korea. Like Mr. Shin, Ms. Kim and her daughters came to Canada on false identities and applied for and were denied refugee status.

In 2015 Mr. Shin and Ms. Kim met in Canada and became common-law spouses, having a child together in 2016.

In 2017, Mr. Shin and Ms. Kim sought permanent residence in Canada on humanitarian and compassionate grounds. They produced psychological and psychiatric reports indicating significant potential distress, including suicide risk, to one or both of the parents upon return to South Korea. The Officer considered these factors as they impacted on the parents, but did not integrate them into the best interests of the child(ren) (BIOC) analysis.

 An Officer denied this application. Mr. Shin and Ms. Kim sought judicial review.

Issue: Did the Officer act reasonably in considering the parents’ psychological and psychiatric issues in the context of the parents only, and not the children?

Holding: No.

Reasoning: “The absence of such an analysis in the case at hand undermines the reasonableness of the decision and therefore represents a reviewable error. This application for judicial review must therefore be allowed … [29]

Ratio: Factors that impact the parents should also be examined in the BIOC if they also impact the children. Failure to conduct such analysis may vitiate a denial of a H+C claim.

Abdourahman v. Canada (Citizenship and Immigration), 2018 FC 1193 (CanLII)

Facts: The Applicant is a 71-year-old citizen of the small, southeast African, nation of Djibouti. She arrived in the United Sates in 2016 and applied for asylum in Canada (at the border) the same year; due to her have already applied in the former country, Canada automatically rejected her application. In 2017, Ms. Abdourahman entered Canada illegally and applied for asylum; again, her application was automatically rejected. However, Ms. Abdourahman was offered the opportunity for a PRRA (Pre-Removal Risk Assessment), of which she availed herself. The Officer rejected Ms. Abdourahman’s PRRA application. The Officer contended that Ms. Abdourahman had failed to submit any documentation or testimony from a third party considering her reasons for fearing return to Djibouti: the brutal persecution she claimed or the state’s inability to furnish protection to her.  The Officer also asserted that Ms. Abrourahman would be able to find someone with whom to live so as to protect herself.

Issue: Was the Officer’s decision reasonable?

Holding: No. Accordingly, the Court allowed the request for judicial review.

Reasoning: The Court found that in many cases Ms. Abdourahman furnished adequate explanations for the lack of documentation for her allegations, such as documentation having been lost while fleeing from one place to another. Moreover, expert evidence existed attesting to some of her allegations, such as her membership in a persecuted ethnic group (the Madhiban tribe). Ms. Abourahman also provided an anecdote indicating the state’s inability to protect her. Additionally, Ms. Abdourahman had established a presumption of truthfulness, which the Officer him/herself accepted, through her corroborated allegations. Finally, the Officer failed to consider the difficulties Ms. Abdourahman would have, particularly as a single woman, finding someone else with whom to stay in Djibouti.

Ratio: A decision denying a PRRA may be vitiated if it is predicated on lack of documentation, when the applicant can furnish adequate reasons for the lack thereof. The Officer must give full consideration to all the elements of the person’s case.

February 2019

Kwan v. Canada (Citizenship and Immigration), 2019 FC 92 (CanLII)

Facts: Ms. Kwan, a Chinese national, challenged the denial of permanent resident status in Start-Up Business class. The Officer had concluded that Ms. Kwan’s application for landing was primarily brought for purpose of acquiring immigration status and not for required purpose of engaging in an authorized business activity.

Ms. Kwan had reached agreement with business incubator (Empowered) to support her venture even though it was supporting a potentially competing venture. Unusually, Ms. Kwan also paid $300,000 Empowered for its services; the Officer noted this latter concern but did not bring it to Ms. Kwan’s attention at any point.  Ms. Kwan came to Canada briefly and then left. In a subsequent update, she proffered a changed business model with a lack of proof of substantial activity. A procedural fairness letter ensued expressing remaining concerns. In a later letter, she explained that Empowered would not be problematic and that she had simply not yet achieved the desired results.

Issues: 1) Was it reasonable for the Officer to conclude Ms. Kwan was motivated primarily by the intent of acquiring immigration status (i.e. not serious about her business)? 2) Was it fair for the Officer to not bring the concerns about the payment to Empowered to Ms. Kwan’s attention?

Holding: 1)Yes. 2) Yes. Application dismissed.

Reasoning: 1) The Officer correctly focused not on lack of success per se but on Ms. Kwan’s lack of interest and engagement in her business venture. 2) There is no evidence that the Officer’s concerns about Empowered played a role in the decision. [23]

Ratio: 1) Lack of engagement and seriousness in a business venture in the Start-Up Business Class can act as proof of one’s ulterior motivations and thus ground a refusal. 2) There is no obligation to bring a matter to an immigration applicant’s attention if that matter plays no role in the final decision. 

Fedee v. Canada (Citizenship and Immigration), 2019 FC 88 (CanLII)

Facts: Ms. Fedee is a citizen of the Caribbean island nation of Saint Lucia, where she grew up in the house of an aunt and uncle. Ms. Fedee claimed her uncle was abusive and harassing to her (and her mother and sister). Ms. Fedee fled to Canada in 2003 but did not make a refugee claim until 2012. She suffers from numerous physical and mental health conditions, including swollen kidneys, post-traumatic stress disorder, and major depression. In 2018, the Refugee Protection Division [RPD] of the Immigration and Refugee Board of Canada rejected Ms. Fedee’s claim.

Ms. Fedee challenged this denial on a number of grounds. Specifically, she claimed the RPD failed to accommodate her psychological needs by providing her an in-person hearing, rather than one by videoconference as was in fact done. She also contended that the Board made biased inferences about her credibility due to inconsistent statements that could in fact have been explained by her psychological state. Ms. Fedee additionally asserted that the RPD failed to consider the future prospects of gendered abuse on her.

Issues: 1) Was the RPD required to provide Ms. Fedee an in-person hearing? 2) Was the RPD biased against Ms. Fedee? 3) Did the RPD fail to adequately consider prospects of mistreatment against Ms. Fedee were she returned to Saint Lucia?

 Holdings: 1) No. 2) No. 3) No. Ms. Fedee’s claim was consequently dismissed.

Rationale: 1) “Before me, the Applicant has made it clear that she would have been more comfortable with an in-person hearing, but she has not shown that the process and accommodation used by the RPD prevented her from making her case in a fair and full way.” [88] 2) A reading of the Decision as a whole does not suggest any ground for an allegation of reasonable apprehension of bias. [81] The RPD gave consideration to all factors, include Ms. Fedee’s mental state. The fact that she does not like the decision does not make it biased. 3) The RPD accepted evidence of Ms. Fedee’s past persecution but was justified in its determination that she did not face insurmountable hardship or mistreatment on return to Saint Lucia.

Ratio: 1) The RPD can refuse an in-person hearing to a person who wants it, as long as the person has ample chance to present his or her case. 2) The mere fact that an administrative decision maker rules other than how a party would like it to rule does not make for bias. 3) Past mistreatment alone will not necessarily sustain a refugee claim.

Singh v. Canada (Citizenship and Immigration), 2019 FC 91 (CanLII)

Facts:  Mr. Singh failed to declare his adopted child as permanent resident on the former’s application for permanent residency, filed in March 2012. In February 2013 Mr. Singh applied to sponsor the child as a member of the family class. This application, the Court notes, was “unsurprisingly … refused.” In addition to Mr. Singh’s failure to declare his child, visa officer [Officer] also expressed concern about the validity of the adoption in India.

Mr. Singh, using the services of immigration consultant, Mr. Khaira, challenged refusal to the Immigration Appeal Division [IAD] of the Immigration and Refugee Board [IRB]. Mr. Singh and Mr. Khaira sought and obtained extensions of time to submit documentation for appeal, however never apparently submitted anything further within the (new) deadlines. IAD dismissed appeal as abandoned.  Mr. Singh challenged this determination.

Issue: Did the IAD act unreasonably or unfairly in refusing to open Singh’s appeal?

Holding: No. Mr. Singh’s application was thus dismissed.

Reasoning: Mr. Singh was copied on various letters sent informing him of his situation and was thus aware of the need to respect deadlines for his appeal. Additionally, “There is another procedural lapse that is fatal to this application arising from the Applicant’s failure to follow the Federal Court protocol dealing with allegations of professional incompetence or negligence against a lawyer or consultant.  That protocol required the Applicant to give notice to Mr. Sandhu and Mr. Khaira of the allegations of incompetence made in this proceeding.”  [17].

Ratio: If clear that individual had ample notice, acceptable to dismiss appeal as abandoned if no response emanates within deadlines. Also, failure, when making allegations of professional incompetence against lawyers/consultants to the Federal Court, to give notice to the persons subject of complaint, may result dismissal of case.

Khan v. Canada (Public Safety and Emergency Preparedness), 2019 FC 66 (CanLII)

Facts: The Khan’s are family of five. The Father, Muhammad Arshad Khan, is the principal applicant. The family arrived in Canada as permanent residents in March 2010. They returned to Pakistan about a month after arrival in Canada and remained in Pakistan until coming again to Canada in February 2015. Upon return, an Officer met them at the airport. According to Mr. Khan, Officer merely informed family that CBSA may be in touch with the family in future and ask for family’s contact information. The Officer’s notes, however reveal a different story: The Officer warned the family that they were clearly incapable of meeting their residency obligations and asked Mr. Khan if he was willing to voluntary surrender the family members’ permanent status; Mr. Khan declined, as was his right, whereupon the Officer advised Mr. Khan that Officer would prepare a section 44(1) Enforcement Report against the family. The Officer asked Mr. Khan to complete a questionnaire but Mr. Khan refused to do so. Before leaving, Mr. Khan did establish his then current address and telephone.

In August 2015 the family’s address and telephone number changed, but Mr. Khan did not inform CBSA of these changes. As a consequence, two letters inviting the family to an interview, informing them of the issuance of a departure order and the right to appeal such order never reached the family; they arrived at the old address. In November of same year, Mr. Khan met with a CBSA Officer and received a copy of a removal order.

Issues: 1) Was Mr. Khan obligated to update the CBSA of the family’s change of address and telephone? 2) Was the decision to deny the appeal of the Khan’s removal order reasonable?

Holding: 1) Irrelevant. 2) Yes. The Khans’ application was thus dismissed.

Reasons: 1) 2) “this controversy [requirement to update CBSA or not] need not be resolved because, on November 30, 2017, the Principal Applicant met with a CBSA officer and received a copy of the Removal Order which provided a 30-day appeal period.” [9].

Ratio: 1) Failure to respect deadlines of which one has been duly informed will vitiate one’s right to appeal. 2) The foregoing finding can dispose of need to decide whether obligation exists to inform CBSA of telephone/address changes.

Prasla v. Canada (Citizenship and Immigration), 2019 FC 56 (CanLII)

Facts: Zulfikar Prasla his wife Jasmine, along with their son Zaeembhai are Ismaili Muslims. They claim to suffer discrimination and persecution in India, due to their minority religious beliefs. The family entered Canada in September 2012, whereupon it made a refugee claim. In July 2014 this claim was rejected. After this refusal, Mr. and Mrs. Prasla applied for a permanent residence visa from within Canada on Humanitarian and Compassionate (H&C) grounds. In September 2015 this claim was also rejected. Applicants submitted as second H&C Application in February 2017, including information on how their son now speaks English better than he does Hindi; this application was denied the same month. Mr. and Mrs. Prasla applied for judicial review of this decision. The certified trial record (CTR) contained an incomplete copy of the Refugee Protection Division’s (RPD) decision. Officer had quoted from the RPD’s decision, specifically referring to Mr. Prasla’s credibility and the availability of an internal flight alternative (IFA) – a safe place within the applicants’ country of nationality.

Issue: Was the Officer entitled to consider refugee or protected person factors in assessing a H&C application? Was the Officer reasonable in not considering the best interests of Zaeembhai with regards to language?

Holding: 1) No. 2) No. The impugned decision was set aside and remanded to another Officer for redetermination.

Rationale: 1). Absence of a complete copy of RPD decision, noted the Court, rendered it impossible for Court to ascertain whether the Officer’s references emanated only from the RDP’s reasons or from the Officer’s own assessment and analysis of documentary evidence. While the Officer making an H&C assessment may reference an RPD finding regarding IFA, the Officer should not consider the factors used in determining whether an individual is a refugee or person in need of protection in assessing H&C applications.

2) The Officer failed to adequately consider the best interests of Zaeembhai Prasla. Specifically, Mr. Prasla (Sr.) had submitted an affidavit stating that Zaeembhai had reached the point where Zaeembhai actually spoke English better than Hindi. The Officer made no response to this statement, rather simply stating that Zaeembhai would not be returning to an “unfamiliar ... language.” The Officer’s failure to give adequate treatment of Zaeembhai’s language skills in the context of Zaeembhai’s best interests also made the decision unreasonable.

Ratio: 1) Need full and complete CTR. 2) Officer, in deciding H+C applications, should not consider factors used in determining whether an individual is a refugee or person in need of protection. 3) Failure to consider best interests of child, including language issues, can render an H&C decision unreasonable.

Song v. Canada (Citizenship and Immigration), 2019 FC 72 (CanLII)

Facts: Mr. Song, along with his dependent spouse, Ms. Wang, applied for permanent residence in Canada through the Prince Edward Island Provincial Nominee Program (Business Impact Category). They submitted their application in June 2016. In September 2017, application was refused by an immigration officer [Officer] on the grounds of misrepresentation of material information, per s. 40(1)(a) of the Immigration and Refugee Protection Act. The specific problem was that Ms. Wang had incorrectly stated the name of the Shaanxi Quinghua Mechanical and Electrical Institute in Xi’an, China where she worked from 1993 to 1997.  While Mr. Song and Ms. Wang were provided, via procedural fairness letter, the opportunity (of which they availed themselves) to explain the discrepancy, the Officer did not find their explanation credible or sufficient.         

Mr. Song and Ms. Wang sought judicial review of Officer’s decision. A subsidiary issue arose with regards to Ms. Wang’s attempt to introduce evidence that she submitted (via affidavit) after the rejection of her application, and was ergo not available to the Officer at the time.

Issue: Did Ms. Wang commit misrepresentation? Was Ms. Wang’s evidence from after the rejection of her application admissible?

Holding: 1) No. 2) No. The application for judicial review was granted, the initial decision quashed and sent to a new decision-maker.

Reasoning: 1) The Court noted that Ms. Wang had provided honest and plausible explanation for her mistake: she was in rush and mistakenly substituted the name of the city where institute is located (Xi’an) instead of the province (Shaanxi) which is the correct designation. She had also used the ‘internal’ name of the institute rather than the ‘external’ name by which it is known to the world.

2) The General rule is that the Court only reviews evidence that was available to the decision maker at the time of the decision [22]

Ratio: 1) An exception exists to misrepresentation when one can demonstrate honest and plausible explanation for mistake. 2) Evidence produced after the decision which is the subject of the appeal is generally inadmissible.

Thuo v. Canada (Public Safety and Emergency Preparedness), 2019 FC 48 (CanLII)

Facts: Mr. Thuo is Kenyan national. He arrived in Canada in 2012, claiming asylum on the basis of persecution due to his sexual orientation (homosexual). In February 2018 the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) dismissed his application as it determined Thuo had failed to establish his identity as required by s. 106 of the Immigration and Refugee Protection Act. This conclusion obtained from the RPD’s finding of ‘certain issues’ with Thuo’s identity documents and apparent inconsistencies in his testimony. Ruling that such a conclusion was sufficient to dispose of Thuo’s claim, the RPD declined to make any finding regarding Mr. Thuo’s fear of persecution in Kenya. Thuo sought leave to challenge the RPD’s decision but was unsuccessful. In November 2018 Thuo was informed of his impending removal, to take place on 15 January, 2019. In December 2018 he applied for administrative deferral of his removal; this application was denied on 13 January, 2019. Excerpts from this denial indicate the decision-maker found insufficient evidence Mr. Thuo would face violence or persecution. The decision also noted the RPD’s disposal of the Mr. Thuo’s case on identity grounds.

Issue: Was Thuo entitled to a stay of removal?

Holding: Yes. Mr. Thuo was granted an order staying his removal from Canada.

Reasoning: Thuo satisfied all three prongs of the test for granting of interim orders: 1) serious issue 2) prospect of irreparable harm 3) balance of convenience (favoring order). Specifically, Thuo was entitled to assessment of the risk he would face on returning to Kenya, a hearing which had not happened.

Ratio: 1) A stay of removal application can satisfy all the aspects of the tests for granting an interim order. 2) If a person is to be deported, s/he is entitled to an assessment on the risks s/he faces.

Jeyakumar v. Canada (Citizenship and Immigration), 2019 FC 87 (CanLII)

Facts: Mr. Jeyakumar is a Tamil citizen of Sri Lanka. After “transiting through Qatar, Argentina, Bolivia, Ecuador, Panama, Costa Rica, Guatemala, Mexico … and the United States” he applied for refugee status at a Canadian port of entry; due to the Safe Third-Country Agreement with the United States, an immigration officer denied Mr. Jeyakumar’s claim and issued a one-year exclusion order against Mr. Jeyakumar. In October 2017, Mr. Jeyakumar entered Canada illegally through Quebec; agents apprehended and detained him. Mr. Jeyakumar then initiated a pre-removal risk assessment (PRRA) application.

An immigration officer [the Officer] rejected Mr. Jeyakumar’s application. The Officer concluded that Mr. Jeyakumar did not face more than a mere possibility of persecution, etc. were he returned to Sri Lanka. The Officer considered various documentation, including: a letter from Mr. Jeyakumar’s father stating how people assaulted Mr. Jeyakumar on numerous occasions; medical evidence showing that Mr. Jeyakumar was treated at a hospital in Sri Lanka; a report from the UK Home Office on Tamil separatism (which indicated many returnees are able to come back safely); a United States Department of State report mentioning the treatment of Tamil returnees to Sri Lanka.

Issues: 1) Was the Officer reasonable in only considering past evidence, rather than present (sur place) or future prospects of persecution? 2) Was the Officer reasonable in not addressing certain evidence in the Home Office Report that supported Jeyakumar’s claim?

Holdings: 1) No. 2) No. The initial decision was set aside and sent to another Officer for redetermination.

Rationale: 1) “the Decision becomes unreasonable at the point where the Officer only briefly addresses the sur place claim.” [40]. 2) While it is for Officer to review and decide, and decision may be legitimate even if Court would have made the determination … the Court has consistently held that it is a reviewable error not to address evidence that is in conflict with an officer or the Refugee Protection Division’s own conclusions.” [55].
Ratio: In dealing with refugee claims, an Officer should: 1) assess current (sur place) and future prospects of harm, not just past experiences 2) give consideration to evidence that conflicts with the Officer’s own conclusions.

March 2019

Caianda v. Canada (Citizenship and Immigration), 2019 FC 218 (CanLII)

Facts: An officer at the Canadian high Commission in Pretoria denied Mr. Caianda’s application for a study permit to study English and then electronics engineering technology in Canada. The stated grounds for the refusal were that Mr. Caianda’s proposed course of study did not appear to be a logical progression from Caianda’s completed credential and work experience and it did not appear reasonable why Mr. Caianda would pursue such a course at such great expense.

Issue: Was the officer’s decision unreasonable?

Holding: Yes.

Reasoning: Para [4] First, Mr. Caianda explained, in his application, why he wants to study electronics engineering at this stage in his life.  Mr. Cainada is now 43 years old.  Ten or fifteen years ago, while living in Portugal, he began engineering studies, but was forced to withdraw as he was unable to combine work, studies and the demands of a young family.  Now that he has accumulated some wealth and that his children are older, he wants to pursue this old dream.  I fail to see how the officer could reasonably say that this is not a logical progression.

[5] Second, it is unreasonable to rely on the cost of post-secondary education in Canada to reach the conclusion that Mr. Caianda is not a bona fide student.  There is no doubt that the cost of education is a matter of public debate.  Visa officers, however, should not have suspicions merely because a particular individual puts a high value on higher education.  There are many valid reasons for choosing to study in Canada in spite of the comparatively higher cost.  And in this case, the evidence shows that Mr. Caianda can afford the proposed course of study.

Ratio: Someone’s proposed educational plan being a leap from their current attainment or expensive is not sufficient grounds to refuse a study permit

Samuel v. Canada (Citizenship and Immigration), 2019 FC 227 (CanLII)

Facts: Ms. Monique Joycelyn Samuel is a citizen of St. Vincent and the Grenadines [St. Vincent]. She arrived in Canada as a visitor in December 2000, and subsequently remained without status. She suffered difficulties in the interim, such as the breakdown of her marriage amidst her then-husband’s infidelity and abuse. Ms. Samuel worked continuously, supported her family in St. Lucia and produced many letters of support, but was also without status and failed to produce income tax returns. A senior immigration officer denied Ms. Samuel’s application for permanent residence on humanitarian and compassionate grounds, giving the foregoing facts as explanation. Ms. Samuel sought judicial review, contending that the officer’s decision was unreasonable.

Issue: Was the officer’s apparent privileging of the fact of Ms. Samuel’s non-status in Canada (and lack of tax returns) over the many positive aspects of her application unreasonable?

Holding: Yes. The decision was quashed and remanded to another officer for determination.

Reasoning: Para [17]  When an officer takes an applicant’s lack of status into consideration (which he is entitled to do), the officer must balance the need to respect Canada’s immigration laws with the fact that section 25 of the IRPA will frequently involve applicants who are without status. In my view, it is contrary to this need for balancing and therefore unreasonable to repeatedly discount positive H&C factors related to establishment because of non-status.

[18] In this case, the Officer gave negative or little weight to three factors based on non-status: he gave no weight to her 17 years in Canada; he gave minimal weight to her financial establishment because she did not have pay stubs or income tax returns, and; he gave little weight to her work because she did not have a work permit.

[19] In my view, it was unreasonable of the Officer to discount three factors based on non-status when there was evidence (which he accepted) that she had worked continuously, had upgraded her skills, had solid references, had paid rent, had never relied on social assistance and had sent money to her family in St. Vincent.

Ratio: An over-emphasis on the bare fact of one’s non-status of Canada, at the expense of other factors, can vitiate a denial of permanent residence (H+C grounds).

Enache v. Canada (Citizenship and Immigration), 2019 FC 182 (CanLII)

Facts:   Mircea Gabriel Enache is a citizen of Romania. He entered Canada on an eTA in 2017, returning to Romania in 2018. During his time in Canada, IRCC received a poison pen letter (PPL) alleging that Mr. Enache had worked illegally while in Canada. IRCC then re-opened his application and informed him of concerns, but did not mention the PPL. A second PPL from the same source emanated. Mr. Enache replied to IRCC with the information requested. IRCC called Mr. Enache’s employer in Romania, who informed the staff member that Mr. Enache was no longer employed there. This conversation raised concerns about the employer letter Mr. Enache had provided. IRCC provided Mr. Enache a procedural fairness letter to express these concerns. Mr. Enache replied with a new letter indicating that the staff with whom IRCC initially spoke had made a mistake and was unaware that Mr. Enache was actually on authorized leave from his work.  The officer dealing with Mr. Enache’s file found the new letter troubling: it was “poorly written in Romanian”; the phone number provided therein was for an unrelated car rental service; the letter stated clearly that the employer did not issue the initial letter. Mr. Enache’s eTA was subsequently refused for misrepresentation.

Issues: Several potential issues arose. 1) Was Mr. Enache’s right to procedural fairness breached by the failure of the officer to disclose the poison pen letters to Mr. Enache? 2) Did the officer conduct verification of Mr. Enache’s employment unreasonable? 3) Did the officer unreasonably dismiss Mr. Enache’s initial response? 4) Was the officer unreasonable in finding the second letter of employment to be fraudulent? 5) Was Mr. Enache’s right to procedural fairness reached by the failure to give hi opportunity to respond to concerns about the genuineness of the second letter?

Holding: 1) Yes. This finding alone made the decision rendered unreasonable and vitiated the need to rule on the other issues. The denial of Mr. Enache’s eTA was remanded to a different officer for redetermination.

Reasoning: Para [19] In my view, the outcome of this application for judicial review turns on the first issue raised by Mr. Enache. He argues that he was deprived of procedural fairness, because the Officer rejected his application for an ETA, with knowledge of the PPLs related to the Applicant and the subject of the Decision, to which PPLs the Applicant had no opportunity to respond.

[20] Against the backdrop of the above determination of privilege, this issue raises a tension between two important principles of law. The principle of informer privilege protects against disclosure of information such as the PPLs, in the interests of encouraging the public to report incidents of fraud. On the other hand, the principle of procedural fairness requires disclosure, to an applicant in an immigration proceeding, of certain categories of information in the possession of IRCC of which the party is not aware and which may affect the outcome of the application, to give the applicant an opportunity to respond.

[27] The Respondent argues that, in the present case, the Decision was based on a more objective determination than in Sapojnikov. [Where failure to disclose PPL vitiated an immigration officer’s refusal for permanent residence] … I accept that this may be a somewhat more objective inquiry than was at issue in Sapojnikov, where the issue was the applicant’s motivation for wanting to come to Canada. However, as in Sapojnikov, the investigation in the present case is related to the credibility of the Applicant, as it is difficult to see how an investigation into whether someone has provided a fraudulent document would not engage at least to some degree consideration of the person’s credibility. I therefore share the same concern as was expressed by Justice Mactavish, that the Applicant was deprived of procedural fairness by the impact of the PPLs to which he had no opportunity to respond.

[29] This finding is determinative of this application for judicial review, requiring that the Decision be set aside and the matter referred back to a different officer to be re-determined, with the benefit of updated submissions to be made by Mr. Enache. It is therefore unnecessary for me to address the other issues raised by the Applicant. However, before concluding, I consider it necessary to return briefly to the tension to which I referred at the beginning of this Analysis, between the principles of informer privilege and procedural fairness. I expect this tension may present itself again when Mr. Enache’s ETA application is re-determined, as he is now aware of the fact that the PPLs exist, but he is still not aware of their contents.  

[33] The Respondent’s counsel raised concern that this Judgment and Reasons not extend beyond the facts under consideration and make pronouncements on procedures to be followed in this sort of case without the benefit of an understanding of the possible operational implications of such procedures. I take that point and am not intending to suggest that the solution proposed by the Applicant’s counsel is necessarily the way such matters should be handled.

Ratio: Failure to disclose a poison-pen letter to an applicant can be grounds for quashing an eTA refusal. Reconciling the interests of the person affected by such letter and the confidentiality of the informer may be difficult.

Pisarevic v. Canada (Citizenship and Immigration), 2019 FC 188 (CanLII)

Facts: Mr. Pisarevic is a citizen of both Bosnia-Herzegovina and Croatia. He is an experienced lawyer with a practice in the former country. He sought to come to Canada to pursue paralegal studies in Alberta. Mr. Pisarevic proposed to sell his law practice to finance his studies. An officer refused Mr. Pisarevic’s request, concluding that Mr. Pisarevic was unlikely to return to Bosnia at the end of Mr. Pisarevic’s stay.

Issue: Was the visa officer’s denial of the visa unreasonable?

Holding: No. Application for judicial review dismissed.

Reasoning: [14] I am entitled to review the record to make sense of the Officer’s Decision. In my view, although it is not referred to in the reasons, the fact that the Applicant proposed to finance his studies by selling his law office was reasonably treated by the Officer as a powerful determining factor.  It gives the impression, in the absence of an explanation to the contrary, that he is winding down his practice and has no professional reason to return to Bosnia and Herzegovina.

[15] Further, the Applicant did not explain to the Officer how studying as a paralegal advanced his career as an established lawyer in Bosnia and Herzegovina. In these circumstances, it was reasonable for the Officer to conclude that his proposed studies did not suggest an intention to return.

Ratio: Selling one’s law practice and pursuing an education path that has no ostensible use to one’s legal career in one’s home country can ground a belief that one will not return to one’s home country after studies and consequently sustain a decision refusing a visa on these grounds.

April 2019

D’Almeida v. Canada (Citizenship and Immigration), 2019 FC 308 (CanLII)

Facts: Ms. D’Almeida is a citizen of both Zimbabwe and South Africa. She currently domiciles in the United Arab Emirates where she has status but no unrestricted right to remain there permanently. She has worked as a receptionist and is currently employed as a cabin crew supervisor with Emirates (Airline). Twice she has had visas refused due to apparent concerns about conditions in Zimbabwe. She has visited many countries as part of the cabin crew and never had any issues. She sought a study permit to pursue journalism courses at Seneca College in Toronto. A visa officer determined Ms. D’Almeida’s primary purpose in seeking the visa was not to pursue the journalism program and that Ms. Almeida was unlikely to leave Canada a the end of her stay. Ms. D’Almeida challenged this decision.

Issue: Was the visa officer’s conclusion and consequent denial of the study permit reasonable? Additionally, or in the alternate, did the visa officer respect the applicant’s right to procedural fairness?

Holding: Yes to both questions. Appeal dismissed.

Reasoning: [71] It must be remembered that a visa officer has a wide discretion in assessing the evidence and coming to a decision.

[50] Based on the evidence [the lack of previous interest in journalism or published articles,] etc it was not unreasonable for the Officer to conclude that there was no satisfactory explanation by the Applicant for making such a drastic career change at the age of 35.

[59] When the Applicant previously complied with the immigration laws of other countries, she had a country to which she could and did return, the UAE. Once the Officer reasonably found that if she studied in Canada the Applicant could not return to the UAE and separately reasonably found that she would not return to South Africa, her ability to continue to comply with the immigration laws of other countries was compromised.

[67] The Officer was not required to advise the Applicant that her evidence was deficient. The onus is on the Applicant to submit satisfactory evidence to support her application. When the Officer found the evidence was not satisfactory, they were not required to provide the Applicant with a running tally indicating that more evidence was required

[68] The Officer did not proceed in a way that was procedurally unfair to the Applicant. This is not a circumstance where the Officer was calling into question the authenticity of documents or the credibility of an applicant based on inconsistencies. Nor did the Officer consult external documents without allowing the Applicant an opportunity to comment on them. If that had been the case then it would have been procedurally unfair to determine the outcome without providing the Applicant with an opportunity to respond.

[69] This is simply a case of insufficient evidence being submitted to support the application.

Ratio: A sudden, mid-life career change otherwise unexplained can ground refusal of a study permit. Moreover, the potential impossibility of returning to one’s country of current domicile (predicated on one receiving the desired permit) can support refusal of such permit. The onus is on the applicant to provide compelling, supporting evidence, not for the officer to tell the applicant that the applicant’s evidence is deficient.

Kumar v. Canada (Citizenship and Immigration), 2019 FC 367 (CanLII)

Facts: Mr. Kumar is an Indian national. He came to Canada on a study permit and then obtained a post-graduate work permit. He worked as a cook’s helper, and, subsequently, cook at a pizza/convenience Store. Mr. Kumar then applied to the BC PNP and was approved thereunder. However, his application for permanent residence was denied on the basis that he did not meet the skilled work experience requirement of national Occupation Classification (NOC) level B code 6322 (cook) under which he applied. The officer found that Mr. Kumar’s experience did not manifest the complexity or variety required to qualify – it was more appropriate to the food preparer category.

Issue: Was the reviewing officer’s decision to refuse permanent visa on the basis that Mr. Kumar did not have the requisite work experience reasonable?

Holding: Yes. Appeal dismissed.

Reasoning: [18] the Immigration Officer noted that the main duty differentiating a cook from a food preparer is the preparation of “complete meals and a wide variety of foods”… it was reasonable for the Immigration Officer to conclude that the Applicant does not prepare a wide variety of foods because the Applicant only prepares a limited variety of simple foods, such as pizzas, chicken wings, lasagna, salads and breads which are served at a food counter.

[21] … cooks oversee kitchen operations and prepare more than simple food items, while food preparers do not. … the Applicant’s duties were closer to those of a food preparer because (1) the they do not regularly involve overseeing kitchen staff and operations, as the establishment already has a manager/supervisor; and (2) the Applicant’s main duties involve preparing simple fast foods such as pizzas and salads by assembling pre-made items.

Ratio: Failure to meet the (majority) of the requirements of variety and complexity of a job description will ground a finding that one does not qualify under that NOC category (and a refusal of a permanent visa if predicated on one’s qualifying as that NOC).

May 2019

Ruszo v. Canada (Citizenship and Immigration), 2019 FC 397 (CanLII)

Facts: Mr. Ruszo and his family are Roma, also referred to as Gypsy. They live in Hungary. In 2010 the family entered Canada and claimed refugee status; a 2012 decision of the Refugee Protection Division (RPD) rejected this claim, and the family left Canada, as required, that same year. In 2016, Mr. Ruszo returned to Canada, alone. He was not eligible to make another refugee claim, but filed a Pre-Removal Risk Assessment (PRRA). He claimed that the family was ill-served by its lawyer for its refugee claim, Victor Hohots, whom the Law Society of Ontario has found guilty of professional conduct in his representation of refugee claimants.

Mr. Ruszo also asserted that the situation for his family in Hungary remained dire, with them subject to persecution. The Immigration Officer (“Officer”) acknowledged Mr. Hohots’s incompetence but claimed it had no bearing on the disposition of the Ruszos’ case. Moreover, the Officer asserted that while the Ruszos may be subject to discrimination in Hungary, this treatment did not rise to the level of persecution. As well, the Officer contended that Hungary had taken major steps towards ameliorating the situation of Roma in its borders.

Issue: Mr. Ruszo submitted two issues for determination: 1) Was the Officer reasonable in determining that the alleged mistreatment of the Ruszos did not rise to the level of persecution? 2) Was the Officer reasonable in finding that the protection offered by the Hungarian state was sufficient?

Holding: 1) No. 2) No. The application for judicial review of the negative PRRA was granted.

Reasoning: [21] “In support of his PRRA application, the Applicant provided an affidavit in which, amongst many other things, he described a physical assault which occurred before the family came to Canada in 2010, and a second attack which he claimed occurred after his return to Hungary, both because of his ethnicity. As the Applicant submits, the Officer in his reasons does not address the Applicant’s evidence about the assaults.”

[23] The Officer failed to give due regard to affidavit evidence that the Applicant’s Roma ethnicity prevented him from obtaining suitable employment in Hungary.

[25]  “ … significantly, as the Applicant submits, there is also simply no analysis to indicate that the Officer considered whether the cumulative effects of the discrimination faced by the Applicant rose to the level of persecution. As … adopted by the Federal Court of Appeal in  Munderere, “where the evidence establishes a series of actions characterized to be discriminatory, and not persecutory, there is a requirement to consider the cumulative nature of that conduct.” ”

[32] “… the Officer also erred in failing to consider the operational adequacy of the state’s efforts… there is significant subsequent jurisprudence from this Court… that a decision-maker cannot simply rely on the efforts of the state, without actually considering the adequacy of state protection.”

Ratio: 1) Officers must carefully consider, both individually and cumulatively, evidence of mistreatment or discrimination that may rise to persecution.

2) Mere efforts by a state to protect its citizens from persecution are not necessarily sufficient to ground a finding that state protection exists; such efforts must be operationally effective.

Henriquez v. Canada (Public Safety and Emergency Preparedness), 2019 FC 437 (CanLII)

Facts: Mr. Henriquez came to Canada from Haiti. He is currently incarcerated at the Joyceville Institution in Kingston for unspecified crimes. In 2017 he became subject to a deportation order pursuant to section 36(1) of the Immigration and Refugee Protection Act, which deals with inadmissibility to Canada obtaining from serious criminality. In 2018 he filed a PRRA containing new evidence, some of which is in regards to his mental health, which was not present in his previous PRRA. The new PRRA decision was negative. Mr. Henriquez sought and obtained a stay of removal but apparently a further deferral was denied. Mr. Henriquez challenged the latter decision.

Issues: 1) Did the Inland Enforcement Officer (“Officer”) apply the correct legal test in deciding Mr. Henriquez’s deferral application? 2) Was the Officer’s decision reasonable?

Holding: 1) No. The Officer rejected articles and reports that Mr. Henriquez submitted only because they did not mention Mr. Henriquez personally. This decision manifested a standard far higher than that is what was called for in this case. 2) The prior question having been answered in the negative, it was unnecessary to analyze the second issue.

Reasoning: [11] “ I find it a reviewable error that the Officer stated at page 4 of the Decision, “I note however that the articles and reports do not mention Mr. Marcel Sayah HENRIQUEZ personally”.

[12]  “That is not the legal test that is to be applied. The Officer unreasonably applied a standard that is far higher than what is required.”

[13]  “This Court and the Federal Court of Appeal have held that deferral is for applications where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment.”

[14]  “I find it was an error for the Officer to read into the test that country condition reports must cite an applicant by name. It is not often … that the independent country condition reports would ever mention an applicant by name. The Officer was looking for proof of a serious risk that was akin to a wanted poster. Of course, this is not the test.”

Ratio: It is incorrect for an Officer to require that specific country condition reports mention the relevant person by name for such reports to have relevancy (in determining the deferral of a removal order).

Li v. Canada (Public Safety and Emergency Preparedness), 2019 FC 548 (CanLII)

Facts: Ms. Li is from China and a practicing Christian. In 2014, she obtained refugee status sur place from the RPD. However, the Minister appealed to the Refugee Appeal Division (RAD) which reversed the RPD’s decision. Ms. Li’s application for leave to appeal the RAD division was denied. In 2015, she gave birth to a son. Also in 2015, she applied for permanent residence in Canada on humanitarian and compassionate (H+C) grounds. This request as well as an application for a PRRA were denied in 2016. Ms. Li had her applications reconsidered in 2017 but both were denied. In 2017, CBSA determined she was removal ready. Also in 2017, Ms. Li met her current husband; they married in 2018. Later that year, Ms. Li’s husband made an application sponsor her as his spouse. A few days after he made this application, Ms. Li was diagnosed as suffering major depressive disorder. Ms. Li requested a deferral of her removal but CBSA denied it. Ms. Li challenged CBSA’s decision. Issues: 1) Was the Officer’s decision reasonable? 2) If not, what was the proper remedy? Holding: 1). No. 2) The proper remedy was to remand the decision to another Officer for redetermination. The Court denied Ms. Li’s request for a directed verdict.

Reasoning: [24]  “ A pending H&C application may justify a deferral of removal only if there are either “special considerations” or a threat to personal safety.:

[29]  “A removals officer cannot defer removal simply because there is a pending spousal sponsorship application. “

 [31]  “It was unreasonable, however, for the Officer not to assess and engage with the fact that removal itself would trigger or cause further psychological harm to the Applicant. The Officer failed to consider the implications of this harm faced by the Applicant.”

[33]  “In my view, the Officer misconstrued the evidence concerning the Applicant’s mental health. Although the Officer acknowledged that the Applicant “may have some psychological issues”, the Officer nonetheless stated that “insufficient evidence” had been submitted “to show that her condition would preclude her from travelling by air”. The psychological evidence did not speak to the Applicant’s ability to travel by air but, rather, to the harm she would face if not granted a deferral of removal.”

[49]  “The Applicant’s request for an order staying her removal from Canada for a time to be determined by the Court does not involve exceptional or compelling circumstances. This matter is not one in which the uncontested evidence on the record is so conclusive that there is only one possible conclusion or outcome. Returning this matter back to a different inland enforcement officer would not be pointless because a different officer may assess the Applicant’s request to defer her removal differently than the Officer did in this case; the request could be granted upon redetermination. I decline, therefore, to issue an order staying the Applicant’s removal from Canada.”

Ratio: 1) An Officer must consider not only whether the process of removal would cause harm to the applicant for a stay of removal, but whether the actual removal itself cause harm. 2) A directed verdict is an extraordinary remedy and not suitable in this situation, where there is the opportunity to re-assess the applicant’s case.

Khan v. Canada (Citizenship and Immigration), 2019 FC 534 (CanLII)


Facts: Mr. Khan is a Bangladeshi national. In January 2014, he and his mother arrived at the Canadian border and made refugee claims, asserting that their involvement in the Bangladeshi National Party (BNP) made them objects of violent mistreatment in Bangladesh. In February 2014, the RPD deemed these claims abandoned. The Khan’s attempts to reopen their claims or obtain judicial review failed. In 2016, Mr. Khan was notified of the opportunity to apply for PRRA; the PRRA was rejected. Mr. Khan then sought judicial review of the PRRA decision and obtained a second PRRA. Mr. Khan’s submissions included the request that an oral hearing be convoked if his credibility was an issue. The Officer concluded that a thorough analysis of the evidence before the Officer not substantiate Mr. Khan’s claim that he would be at risk upon return to Bangladesh; no oral hearing was granted. Mr. Khan challenged this decision.

Issues: 1) Was the Officer’s decision not to grant an oral hearing procedurally fair? 2) Was the Officer’s overall decision reasonable?

Holding: 1) No. 2) No, because of 1). The impugned decision was set aside and sent to a different officer with the instruction that the new officer should conduct an oral hearing.

Reasoning: [24]  “ In the present case, it …section 167 (of the IRPR) becomes operative where credibility is an issue which could result in a negative PRRA decision; the intent of the provision is to allow an applicant to face any credibility concern which may be put in issue.”

[33]  “The Applicant’s credibility was clearly at issue when the Officer stated that “the submissions and documents presented included little evidence to corroborate the Applicant’s activities as a leader with the BNP while in Bangladesh.” … [T]his statement constitutes a veiled credibility finding.”

[36]  “In this case, the Applicant has never had an opportunity to address any credibility concerns about his claim for refugee protection. The Officer accepted the Applicant’s affidavit without question. If the Officer had concerns about the basis for or credibility of the Applicant’s claim, an oral hearing should have been held before the Officer made a negative decision.”

Ratio: 1) Even if not explicitly stated as a(n un)credibility finding, an Officer’s decision may constitute such a finding if the facts clearly support such a conclusion. 2) S. 167 of the IRPA mandates an oral hearing when credibility is an issue in a PRRA; failure to follow this rule may vitiate a negative PRRA.

Kim v. Canada (Citizenship and Immigration), 2019 FC 526 (CanLII)

Facts: Mr. Kim is a citizen of South Korea and held a series of study permits in Canada through August 2017. On the day his last study permit, he applied for a post-graduate work permit (PGWP). This application was rejected as he had not completed his program of study at the time of this application. For whatever reason, Mr. Kim did not apply instead for an additional study permit. Mr. Kim challenged the refusal of his pgwp as procedurally unfair and unreasonable.

Issue: 1) Was the refusal of Mr. Kim’s PGWP procedurally unfair or unreasonable?

Holding: No. Mr. Kim’s application for judicial review was denied.

Reasoning: [10]  “The requirements of procedural fairness were met here.  The onus was on the applicant to demonstrate that he was eligible for a PGWP.  He failed to do so because, in fact, he did not meet the requirements of the program.  He had not completed his degree when he submitted his application.  The officer was not under a duty to alert the applicant to this deficiency in his application before rejecting it.”

[11]  “[T]he applicant argues that the decision is unreasonable because the officer should have been guided by the wider policy objectives of the PGWP program and the IRPA itself as opposed to the strict eligibility requirements the officer applied.  I disagree.  The applicant had not satisfied a mandatory precondition for eligibility for a PGWP when he submitted his application.  The officer had no discretion to disregard the requirements of the program as set out in the program delivery instructions. It was entirely reasonable for the officer to refuse the application on the basis that the applicant did not qualify.”

Ratio: A refusal of a (PGWP) application based on one’s failure to meet the relevant obligations of the program is neither procedurally unfair nor unreasonable.

Kwanyi v. Canada (Citizenship and Immigration), 2019 FC 424 (CanLII)

Facts: This case is complicated and unusual.  Mr. Kwanyi, Ms. Poni and Ms. Geria are Sudanese citizens who sought permanent residence in Canada on H+C grounds in the humanitarian-protected persons and refugees aboard class. Ms. Poni is a part of Mr. Kwanyi’s family by adoption and considered a niece. Mr. Geria is also Mr. Kwayni’s niece. In 2008, Mr. Kwanyi’s daughters in Canada filed an application to sponsor the Applicants to Canada on H&C grounds. Mr. Kwanyi was first interviewed in 2012; the Officer made a positive decision at the time and informed the Applicants that any changes would need to be reported. Mr. Kwanyi however claims that he did not understand this requirement. The Applicants were required to undergo medical examinations Ms. Poni did not attend as she had recently given birth; a woman named Kiwaje attended in place of Ms. Poni. In 2016, the Applicants were interviewed again. No interpreter was present, however a distant relative of the Applicants with no formal training in English assisted. The Applicants confirmed that an imposter had represented Ms. Poni at the medical examination. Mr. Kwanyi also disclosed the existence of two grandchildren whom he had not declared in his initial interview. A procedural fairness letter expressing concerns about the imposter and failure to declare the grandchildren emanated in November 2017. The aforementioned distant relative responded, purporting to be Mr. Kwanyi himself, writing to admit the foregoing conduct, asking for forgiveness and explaining that Mr. Kwanyi’s illiteracy was partly responsible for the mistakes. Mr. Kwanyi and Ms. Poni now maintain that they did not give instruction to the distant relative to write the email nor permission for it be sent, nor did they have a chance to review it. A 2018 decision by an Officer denied Mr. Kwanyi and Ms. Poni’s applications for permanent residence on the grounds that Mr. Kwanyi was inadmissible under section 16(1) for failing to answer truthfully all the questions posed to him; the Officer held Ms. Poni had also contravened s. 16(1) as well as 16(1.1) of the IRPA, which requires requested persons to attend the medical examination. Ms. Geria’s application was refused as it could not succeed on its own – it was dependent on the success of Mr. Kwanyi’s application. The Applicants sought judicial review of the Officer’s decision.

Issue: Was the Officer’s decision procedurally fair to the Applicants?

Holding: No. The Officer’s decision was quashed and the matter returned for reconsideration by a different officer.

Reasoning: “[27]  This is an extremely sad case that, in my view, is more about misunderstanding and mischaracterization than dishonesty.”

[35]  “Difficulty arises, not from the [second] interview notes per se, but because in the Procedural Fairness Letter the Officer put this issue before Mr. Kwanyi in the following way: ‘At your second interview, it was determined that you persuaded your declared de facto dependant, Betty, to send an imposter to the medical exam as she had just had a child.\|

[36]  “Although I think we can depend upon the Officer’s honesty – she has no reason to lie – we are without a verbatim record, and so completely dependent upon the Officer’s summary of what she said to the Applicants and what they said to her. And this is particularly worrisome in the present case because there was no qualified interpreter available and both the Applicants and the Officer had to depend upon the dubious translation skills of a distant family member. The whole situation was primed for miscommunication and required the Officer to take more detailed notes of what was actually asked and what was said.”

[39]  “The Procedural Fairness Letter does not reflect the answer which the Officer says Mr. Kwanyi gave at the [second] interview which was that “PA knew about the imposter at medical examination but stated it was Betty’s father who insisted to send somebody else.” We don’t know if the Officer is mistaking what was said at the interview or that she has, in some other way, determined that Mr. Kwanyi was lying when he said it was Ms. Poni’s father who “insisted.” This casts doubt on the accuracy of the interview notes. This doubt is carried into the Officer’s review of the notes …”

[42] “ In my view, the interview notes (although an honest attempt by the Officer to give her impression of what was said) are not sufficient to allow the Applicants or the Court to determine whether the Officer’s impression was reasonable, given what was actually said. This is important because, in the Procedural Fairness Letter, the Officer made it clear that the concerns are “regarding your overall credibility as it relates to your refugee claim, availability of a durable solution, and admissibility to Canada.” All of these issues could be impacted by whether Mr. Kwanyi was responsible for the imposter or deliberately concealing his grandchildren, or made an honest mistake, which is not out of the question given his illiteracy, his lack of English, his background and the complexities of the application process under the difficult circumstances in which the Applicants live.

[56]  “There is no need for me to assess the credibility or admissibility of this evidence. In the end, I think that procedural unfairness has occurred in this case because the interview notes are not sufficient to support the Officer’s conclusions on the “imposter” situation and the Procedural Fairness Letter, in not providing a basis for the Officer’s “determination” on point, was not sufficient, in the full context of this case, to allow the Applicants, or anyone acting on behalf of the Applicants, to respond to the “determination” in any meaningful way. An unsupported “determination” gave the Applicants or Mr. Elia little option but to provide an excuse and an apology. Had the Officer given the Applicants the basis for that determination, they would then have been able to explain that this was not what they said or intended to say.”

Ratio: Incomplete or unclear interview notes, when they ground a determination that results in the refusal of an application, can be grounds for vitiating that refusal.

Nguyen v. Canada (Citizenship and Immigration), 2019 FC 439 (CanLII)

Facts: Ms. Nguyen is a citizen of Vietnam. She applied for a permanent resident visa in the start-up business class. Her business focused on developing a global mobile software application that would allow parents to select the best option for daycare or nursery school for their children. Empowered Startups Ltd. [Empowered], a designated business incubator, accepted her venture for incubation and issued a Commitment Certificate for Ms. Nguyen’s start-up. In December 2017, an Officer requested that a peer review panel [Panel] indecently assess Ms. Nguyen’s Commitment to determine whether Empowered had conducted due diligence in accepting Ms. Nguyen’s proposal. In March 2018, such review took place by way of telephone conference. Later, the Panel concluded that Empowered had conducted an insufficient level of due diligence in considering Ms. Nguyen’s business proposal. Concerns included lack of clarity as to whether Ms. Nguyen had validated her idea in Vietnam or not, having staff work in a language they do not speak, and the abnormality of her having already invested over $300,000 without having had her proposal validated. A procedural fairness letter [Letter] emanated to Ms. Nguyen, with the Officer expressing concern that Empowered had not conducted due diligence. Shortly thereafter, Ms. Nguyen filed an access to information request to obtain a copy of the peer review report and an extension of time to file submissions in response to the Letter. Before receiving a reply to the access to information request, Ms. Nguyen (through counsel) filed reply submissions to the Letter, indicating that Empowered was not informed of any concerns during the peer review session and noting that since she was unable to obtain the peer review report, she was unable to determine how the Panel came to its conclusions. In July 2018 the Officer denied Ms. Nguyen’s visa application on the basis that Ms. Nguyen had not satisfactory demonstrated that she had participated in the business venture for the purpose of engaging in the business activity for which the Commitment was intended. Ms. Nguyen contended that the peer review process was unfair and that the Officer’s decision was neither intelligible nor justifiable by the facts.

Issues: 1) Did either the Panel or the Officer breach Ms. Nguyen’s right to procedural fairness? 2) Was the Officer’s decision reasonable?

Holding: 1) Yes (the Officer). 2) As the answer to 1) was affirmative, it was un-necessary to answer the latter question. Decision quashed and remanded to a different officer for redermination.

Reasoning: [26] “… the Officer committed a fatal error by relying on extrinsic evidence with which the Applicant was never confronted. This breached the Applicant’s procedural rights and, and such, the decision must be quashed. It will not be necessary, as a result, to consider the other arguments raised by the Applicant against the Officer’s decision.

[29]  “In the instant case, the GCMS notes reveal that the Officer had concerns regarding similar software applications that were already on the market in the United States, Vietnam, and Canada. However, the Procedural Fairness Letter did not put this concern to the Applicant. Therefore, she was never afforded a chance to reply to or comment upon the Officer’s concerns.”

[30]  “While I do recognize that an officer’s reasons need not be perfect, they must nonetheless allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes.”

[31] “ In this case, a fair reading of the decision, including the GCMS notes, does not allow me to decipher what weight the Officer gave to the extrinsic evidence, although it is clear that it carried some weight. Since the impact this evidence had on the decision-making process cannot be measured from the Officer’s reasons for the decision, the only fair solution, in my view, is to remit the matter to another visa officer for reconsideration).”

Ratio: Failure to provide an applicant with knowledge or the opportunity to respond to extrinsic evidence can render procedurally unfair the denial of a start-up visa and vitiate such a decision.

June 2019

Kaur v. Canada (Citizenship and Immigration), 2019 FC 572

Facts: Pawandeep Kaur is an Indian national. She attended, on a valid study permit, an eight month course at William and Catherine Booth University College (BUC) in Winnipeg, leading to a Certificate in Liberal Arts. Towards the end of her program, Ms. Kaur applied for a post-graduate work permit (PGWP). This application was rejected, on the grounds that the PGWP rules applicable to Canadian private institutions required the applicant to be enrolled in a program of stud leading to a degree, not a certificate per se. Ms. Kaur challenged this decision.

Issue: Was the officer’s denial of the PGWP to Ms. Kaur reasonable?

Holding: Yes, application for judicial review denied.

Reasoning: [12] The Minister notes that two Manitoba statutes governing the issuance of degrees from post-secondary institutions define “degree” in a manner that excludes certificates. The Supreme Court of Canada has ruled that interpretations favouring harmony between various statutes enacted by the same government should prevail. This presumption is even stronger when the statutes relate to the same subject matter.

[14] The PGWP Policy clearly distinguishes between a “degree” and a “certificate”

Ratio: A certificate is distinct from a degree, and having participated in a program of study leading to the former but not the latter may be sufficient to ground denial of a PGWP.

Yusuf v. Canada (Citizenship and Immigration), 2019 FC 714 (CanLII)

Facts: Mr. Sunday Tola Yusuf sought permanent residence in Canada as a skilled worker. The reviewing Officer denied Mr. Yusuf’s application. The grounds of this decision were that Mr. Yusuf had failed to mention his involvement with a company called FleetPartners, the website of which named Mr. Yusuf as the company’s executive chairman; moreover, Mr. Yusuf’s own LinkedIn profile indicated that Mr. Yusuf was a member of the Board of FleetPartners. After the Officer brought these concern s to Mr. Yusuf’s attention, the latter replied indicating that Mr. Yusuf has no official role with the company, but rather provides pro bono services thereto. Mr. Yusuf also furnished a supporting affidavit from the company’s CEO. Nevertheless the Officer concluded that Mr. Yusuf was inadmissible to Canada for having made a material misrepresentation that could have induced an error in the administration of Canada’s immigration laws. Mr. Yusuf challenged this decision as unreasonable.

Issue: Was the Officer’s decision reasonable?

Holding: Yes. Mr. Yusuf’s application for judicial review thereof was denied.

Reasoning: [7Mr. Yusuf contends that the officer unreasonably relied on a third-party website over which Mr. Yusuf had no control to conclude that there had been a misrepresentation. In addition, he argues that the officer ignored evidence that clarified that he did not have an official relationship with FleetPartners.

[8] I disagree. The officer relied, in part, on the fact that Mr. Yusuf’s own LinkedIn account cited his membership on the Board of FleetPartners. Mr. Yusuf never provided an explanation for that entry. On this evidence, the officer’s conclusion that Mr. Yusuf had misrepresented his employment history was not unreasonable.

[10] Mr. Yusuf applied for entry to Canada as a skilled worker. Obviously, his work history was central to his application. Any errors or omissions in his description of his employment experience could have resulted in an error in the processing of his application. In the circumstances, the officer’s observation that Mr. Yusuf had not adequately explained the omission in his employment history provided a sufficient explanation for rejecting his application.

Ratio: An individual’s work history is relevant in his or her application to come to Canada as a skilled worker. Failure to disclose or adequately explain important aspects of this history can constitute misrepresentation and render one inadmissible.

Alkhaldi v. Canada (Citizenship and Immigration), 2019 FC 584 (CanLII)

Facts: Mr. Alkhaldi is a citizen of Saudi Arabia. He is COO at a Canadian firm that he cofounded. He first came to Canada with his family on TRVs in 2014. In 2017, he applied to renew the TRVs for himself and his family. Later that year, an Officer sent Mr. Alkhaldi a procedural fairness letter (PFL) indicating concerns that Mr. Alkhahdi had been untruthful in Mr. Alkhaldi’s application for the renewed TRV, specifically, in Mr. Alkhaldi’s statement that he had never been refused a visa to any country.  In response to this PFL, Mr. Alkhaldi indicated that he had forgotten to declare that he had mistakenly crossed into the United States border after taking a wrong turn at Niagara in 2016, and was uncertain whether this incident constituted a ‘refusal’. Mr. Alkhaldi then sent a second letter indicating that he just remembered that he was denied a United Sates visa in 2015 due to insufficient ties to Canada. Mr. Alkhaldi challenged the Officer’s decision on several grounds, namely that the PFL breached Mr. Alhakdi’s rights to procedural fairness by failing to mention certain concerns, that Mr. Alkhaldi was covered by the ‘innocent error’ exception, and that the Officer’s decision was unreasonable?

Issues: 1) Did the PFL breach Mr. Alhakdi’s rights to procedural fairness? 2) Was Mr. Alhakdi covered by the innocent error exception? 3) Was the Officer’s decision unreasonable?

Holding: 1) No. 2) No. 3) No. Accordingly, the application for judicial review was denied and the Officer’s decision affirmed.

Reasoning: [16] In this case, the Officer had specifically advised the Applicant that he may not have been truthful about his past visas and permits. An immigration applicant exercising normal due diligence should have sought to clarify the status of an application he had made some years ago. Alternatively, the Applicant could have simply mentioned his other application. The Applicant had a duty to answer truthfully and cannot rely on the fact that he did not know of the decision in his 2012 visa application to explain why he never disclosed the fact that he had made it upon receipt of the Officer’s concerns.

[22] Madam Justice Tremblay-Lamer considered the jurisprudence … and concluded, at paragraph 32, that the exception to the general rule “will only apply for truly exceptional circumstances, where the applicant honestly and reasonably believed they were not misrepresenting a material fact” (emphasis in the original).

[23] It was clearly within the Applicant’s control to know or find out whether his 2012 visa had been refused. The Applicant is a sophisticated businessman and had experience with immigration procedures in Canada and elsewhere. It is difficult to accept that in 2017 and 2018 he could have believed that the application was still in progress.

[24] In the circumstances, I do not see the Applicant’s explanation as falling within the innocent exception to the duty of candour.

[25] The omission to disclose the refused US visas was material in that it would not allow the Officer to investigate facts relevant to the application.

[30] While the consequences may be harsh to the Applicant, the decision was within the range of acceptable outcomes defensible on the facts and the law and the reasons provided are intelligible, transparent and justified.

Ratio: Failure to disclose or explain relevant immigration information can ground a refusal of a TRV.

Zubova v. Canada (Citizenship and Immigration), 2019 FC 444 (CanLII)

Facts: Ms. Zubova is a Russian National. She received a provincial nomination from the government of Saskatchewan and applied, in August 2016, for a work permit as a cook. In September 2016, an Officer sent Ms. Zubova a PFL indicating concerns about the genuineness of Ms. Zubova’s claimed work history as a cook in Russia and claiming that Ms. Zubova misrepresented material facts. Ms. Zubova provided a response in early October 2016, but this response was overlooked, and in late October 2016, her application was denied on the grounds of inadmissibility for misrepresentation. In February 2018, Ms. Zubova’s application was re-opened, the oversight with regards to her 2016 response having been discovered. In May 2018, Ms. Zubova’s application was again denied, with particular concern being expressed that Ms. Zubova had failed to declare her experience as a cook on previous applications. Ms. Zubova challenged this decision.

Issues: 1) Was Ms. Zubova’s right to procedural fairness breached in not giving her an opportunity to be aware of specific concerns about her credibility? 2) Was the Officer’s decision reasonable?

Holding: 1) Yes. The application for judicial review was granted and the decision remanded to another officer for reconsideration. 2) The determination of 1) in the affirmative made it un-necessary to consider the second question.

Reasoning: [16] The Officer either failed to consider [further] documents [that Ms. Zubova submitted] or dismissed them because of credibility concerns.  In either case, I agree with the Applicant that fairness required that any credibility concerns with her evidence or her documents ought to have been raised with her and she ought to have been given an opportunity to respond.  Where there are credibility concerns not put to the Applicant, there is a lapse in procedural fairness.

[18] Although I acknowledge that the degree of procedural fairness owed to visa applicants is at the low end of the spectrum, an Applicant must still be afforded some opportunity to address concerns relating to credibility.

Ratio: Failure to disclose credibility concerns to an applicant or adequately consider relevant documents can constitute a breach of procedural fairness and vitiate a denial of an immigration application.

Phan v. Canada (Citizenship and Immigration), 2019 FC 435 (CanLII)

Facts: Ms. Phan is a citizen of Vietnam. She came to Canada via spousal sponsorship obtaining from a marriage that was admittedly not genuine. She divorced her first husband in 2009. In 2008 she met her current husband, who is a Canadian citizen. They have a son who was born in 2009 and a daughter who was born in 2014. In 2016, Ms. Phan was found inadmissible to Canada on the basis of misrepresentation relating to her spousal sponsorship. Ms. Phan acknowledged the validity of the resulting exclusion order but brought an appeal against this order, as well as sought a stay of removal. She contended that the best interests of her children and other factors constituted sufficient humanitarian and compassionate (H+C) grounds to vitiate the exclusion order. In 2018, the Immigration Appeal Division (IAD) denied this appeal and refused the request for a stay. Ms. Phan sought judicial review of these decisions.

Issues: 1) Was the IAD’s decision unreasonable? 2) Did the IAD’s conduct breach procedural fairness?

Holding: 1) Yes. 2) No.

Reasoning: [18] Upon review of the IAD’s reasons, I am not persuaded that the IAD applied a basic needs or hardship standard when assessing the children’s best interests. That said, the IAD’s very limited best interest analysis does not demonstrate that it was alive, attentive, or sensitive to the children’s best interests.

[27]  While the Respondent submits that the IAD was not required to set out any of the analysis that it conducted and that it was sufficient for the IAD to merely state that this was a compelling positive consideration but insufficiently compelling to warrant special relief, I do not agree. This is contrary to the requirements set out in Kanthasamy. Further, while the IAD is to be afforded deference and the best interest of the child will not necessarily be determinative, without any analysis or reference to any evidence as to the children’s circumstances, the Court is unable to assess the reasonableness of the IAD conclusion, making its decision unintelligible.

[28]  In sum, the IAD’s reasons do not demonstrate that it was alert, alive, and sensitive to the best interests of the children nor do they enable the Court to assess the IAD’s weighing of this factor. This is a reviewable error.

[36]   I would observe that, read in whole, the IAD’s focus appears to have been to discount or dismiss the H&C factors primarily on the basis of the misrepresentation, rather than properly assessing each of those factors and then weighing them to determine if they served to establish H&C considerations that warrant special relief in light of all the circumstances of the case.

[37] The Applicant submits that the IAD breached the duty of procedural fairness by failing to provide reasons explaining why it refused the Applicant’s request for a compromise resolution, whereby her removal would be stayed for a period of time within which she would complete a sentence of community service, the stay being granted pursuant to s 68(1) of the IRPA.

[38] In my view, the IAD did provide adequate reasons when it stated that, “[i]n the circumstances of this appeal, I see no basis for such an order. Moreover, as I have determined that special relief is not warranted under section 67(1)(c) of the IRPA, it is also not merited under section 68(1).” Accordingly, there was no breach of procedural fairness.

Ratio: Failure to adequately and comprehensively consider the best interests of the children involved can vitiate denial of an H+C application. Consideration of the parent’s immigration misconduct should not overshadow the analysis best interests of the children in such an application. Laconic reasoning, as long as it is defensible, is not a breach of procedural fairness.

Bonnardel v. Canada (Citizenship and Immigration), 2019 FC 712 (CanLII)

Facts: Mr. Bonnardel is an Argentinian citizen, as his common-law spouse, Ms. Suarez. The two have a complicated immigration history. Mr. Bonnardel first came to Canada with his family in 1988 as a refugee, and left in 1995. In 2001 he made an unsuccessful refugee claim to Canada. His 2002 application to stay in Canada on H+C grounds, as well as request for a pre-removal risk assessment, were also rejected. Ms. Suarez also made an unsuccessful refugee claim. In the interim, around November 2011, the two formed their relationship, which has produced two children, a son, Sean who is 11, and a daughter, Chiara who is 10. Both children are citizens of Canada, have never been to Argentina, and do not speak Spanish. In 2017, Mr. Bonnardel and Ms. Suarez submitted an H+C application arguing many reasons that they should be allowed to remain in Canada: their being contributing members of Canadian society and the best interests of their Canadian-citizen children, among other factors. The immigration Officer rejected this application, emphasizing the nature and extent of Mr. Bonnardel and Ms. Suarez’s immigration misconduct and noting that, at any rate, Sean and Chiara would be able to successfully adjust to life in Argentina.

Issue: Did the Officer err in placing undue emphasis on the parents’ misconduct, such that the Officer neglected the best interests of the children involved?

Holding: Yes. The impugned decision was thus unreasonable, and remanded to another decision-maker for determination.

Reasoning: [12]   In my opinion, that effort is evidence that, not only was Sean and Chiara’s parents’ immigration misconduct a “strong negative factor” in the Officer’s mind in reaching the conclusion, it was a factor that trumped Sean and Chiara’s best interests.

[13]  I find that the Officer’s extraordinary focus placed on Sean and Chiara parents’ immigration misconduct caused the Officer to effectively minimize Sean and Chiara’s best interests. The Supreme Court of Canada in Baker [1999] 2 SCR 817 at para 75 provides direction in this instance: “[…] where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable.”

Ratio: An overemphasis on the parents’ immigration misconduct can obscure a rightful consideration of the best interests of children involved and vitiate a consequent rejection of a H+C application.

Seeniyan v. Canada (Citizenship and Immigration), 2019 FC 746 (CanLII)

Facts: Mr. Seeniyan is a Sri Lankan national and ethnic Tamil. He came to Canada in 2013 on a visitor visa to see his sister. In 2014 he submitted a claim for refugee protection, on the grounds that his political activism on behalf of Tamils in his native land made him at risk for persecution. This claim was suspended in January 2015 pending determination of his admissibility to Canada. In November of the same year, the Immigration Division (ID) determine d that Mr. Seeniyan was inadmissible to Canada on security grounds and consequently ineligible for refugee protection. In August 2016 the Federal Court denied Mr. Seeniyan’s application for judicial review of the ID’s determination. In the interim, in March 2016, submitted a request for a pre-removal risk assessment (PRRA). (Due to the prior determination of inadmissibility, Mr. Seeniyan was entitled only to a ‘restricted’ PRRA, which would consider only whether, on a balance of probabilities, he was a person in need of protection). In 2018, an immigration Officer denied Mr. Seeniyan’s PRRA application. Mr. Seeniyan sought judicial review of this decision.

Issue: Was the Officer’s decision unreasonable?

Holding: Yes. The PRRA Officer’s determination was quashed and remitted to another decision maker for redetermination.

Reasoning: [7] In my view, two errors by the PRRA officer are determinative of this application.

[8] First, the applicant had contended in part that he was at risk because he had admitted before the ID that he had been a long-time member of the Illankai Tamil Arasu Kachchi [ITAK], a political party in Sri Lanka.  The ID had found that this was sufficient to establish membership by proxy in the LTTE and, as a result, the applicant’s inadmissibility on security grounds.  The PRRA officer rejected the applicant’s submission that this put him at risk if he returned to Sri Lanka because “the applicant has not explained how Sri Lankan authorities would be aware of the ID’s finding,” adding: “As the hearing [before the ID] was held in camera, there is no indication that Sri Lankan authorities would be aware of the statements made by the applicant or of the decision reached as a result of their disclosure.”

[9] This conclusion is unreasonable.  In fact, the applicant did explain how Sri Lankan authorities could be aware of what happened before the ID despite the in camera nature of that proceeding – namely, through the reported decision of the Federal Court, which set out the applicant’s admissions before the ID as well as that body’s findings (which were upheld by the Court).  As the applicant pointed out in written submissions to the PRRA officer, this decision is a matter of public record (the applicant even provided the officer with the neutral citation for the judgment).

[12] The second reviewable error committed by the PRRA officer is the following.  After acknowledging that there are screening protocols for returnees in place in Sri Lanka and that returning citizens who are suspected of having ties to or of having supported the LTTE face a higher likelihood of scrutiny by Sri Lankan authorities upon arrival and a greater risk of mistreatment, the officer reasoned as follows: “While it is reasonable to expect that the applicant may be questioned upon return to Sri Lanka regarding his activities in Canada, what specific information the applicant elects to disclose to Sri Lankan authorities upon his return is solely his prerogative and it would be purely speculative to suggest what the nature of that disclosure might be.”

[13]   It is unreasonable for the officer to have proceeded on the basis that the applicant might not answer questions about his activities in Canada truthfully.  The officer accepted that it was likely that the applicant would be questioned about his activities in Canada when he returned to Sri Lanka.  Those “activities” included seeking asylum here and (as a matter of public record) being found to be inadmissible to Canada on security grounds because of his membership in the LTTE.  The officer should have assessed the applicant’s risk on the basis that the applicant would tell the truth to Sri Lankan authorities if questioned about what he had been doing in Canada since 2013. The officer’s failure to do so renders the decision unreasonable.

Ratio: Authorities in the country from which one has fled may be aware of information liable to render one subject to persecution thereby through reported decisions of the Federal Court of Canada or by the individual in question simply answering truthfully questions posed to him or her. Failure to consider these factors in a PRRA decision can render such a decision unreasonable.

Canada (Public Safety and Emergency Preparedness) v. Siyaad, 2019 FC 448 (CanLII)

Facts: This case is about a cellphone, specifically the ongoing seizure thereof. In May 2017, Mr. Siyaad, who ostensibly has numerous other aliases, allegedly entered Canada on a fraudulent passport. In June 2017, he made a refugee claim it Kitchener, Ontario, acknowledging he was being deported from he United States. In October 2017, the Refugee Protection Division (RPD) granted his claim. In 2018, the U.S Department of Homeland Security (DHS) provided CBSA with a memo indicating that Mr. Siyaad was subject of an international investigation into human trafficking. On 10 January, 2018, Siyaad was referred to the ID for an admissibility hearing regarding this allegation. Two days later, a warrant was executed, and Mr. Siyaad was arrested and detained; his cellphone was seized and placed under custody of the CBSA. In February 2018, the Minister of Public Safety and Emergency Preparedness (MPSEP) appealed the RPD’s finding. The RAD set aside the RPD’s decision in Match 2018 and remanded it to the RPD for re-determination. At the time of the hearing, this matter was under reserve. In June 2018, Mr. Siyaad made an application for the return of his cellphone, arguing, among other factors, that it contained exculpatory evidence that he needed to access. In July 2018 the CBSA refused this request. Mr. Siyaad challenged this decision in the Ontario Superior Court, which declined jurisdiction. He then made application to the ID, which declined to return the phone. The ID then apparently issued a second decision reversing the first one. Siyaad was arrested after the decision; there are currently parallel proceedings to have him extradited to the United States for human smuggling trials. His admissibility hearing is ongoing. Siyaad challenged the first decision; the government challenged the second.

Issue: Is the continued seizure of Mr. Siyaad’s cellphone reasonable?

Holding: Yes. Mr. Siyaad’s challenge of the first decision was rejected, while the government’s appeal of the second decision was accepted.

Reasoning:  [Appeal of First Decision]

[28] While Siyaad originally suggested in his letter to the CBSA that the search and seizure itself was unlawful, he has since abandoned this argument. Siyaad now accepts that the warrantless search is saved by the fact that the search was done incidental to the arrest.

[30]  Siyaad argues that the continued “detention” of the cellphone is not authorized by law because it was not taken before a judge as required in the Criminal Code.

[33]  Siyaad submits that any regime that allows for search and seizure without judicial oversight is unconstitutional. Both parties concede that if the CBSA obtains a warrant under the Criminal Code, that the seized item must then be brought before a judge, but if it is a warrantless search incident to arrest, Siyaad suggests that there is no oversight body. I note of course, as I did at the hearing, that the matter of the continued seizure was before me, and therefore there was oversight from a judge.

[37] I find that the continued seizure of the cellphone is authorized by statue.

[48] Simply put, I find that Siyaad fundamentally errs by assuming that searches and seizures by CBSA officers are the same as searches and seizures by police officers generally. The law recognizes that they simply are not.

[54] I find there was lawful authority for the CBSA to seize and then retain the cellphone without having to follow the Criminal Code sections when the IRPA has its own code regarding the seizure and retention of property. In this case CBSA complied with all the procedures as required in the IRPA and the IRPC.

[Appeal of the Second Decision]

[84]  The general rule held up by Justice Sopinka seems to be clear: the decision cannot be revisited because “the tribunal has changed its mind”.

[85]  That is precisely what happened here. There was no new evidence; there was no request for reconsideration. Rather, a decision maker reversed his own decision, months later, at a cost to both Siyaad and the MPSEP.

[86]  It would be problematic to allow the ID such discretion to flip-flop on such interlocutory decisions

[89]  The MPSEP submits that the reasoning of the Member is unreasonable on the face of the evidence before him.

[90]  While the ID’s decision is premised on the fact that Siyaad required access to the cellphone to prepare a defence, the MPSEP argues that this premise itself is faulty.

[91]  The CBSA submitted (and Siyaad did not dispute) that social media accounts are accessible from many devices and not only from Siyaad’s cellphone. Siyaad then claimed that he forgot his social media accounts passwords and required the cellphone to access his accounts. The CBSA then submitted that passwords can be accessed and reset from any computer (device). Siyaad did not dispute this.

[92]  However, nowhere in its decision does the ID address this crucial fact.

Ratio: CBSA has lawful authority to seize and retain a cellphone, distinct from any Criminal Code provisions. When CBSA complies with the applicable provisions, its continued detention of a cellphone will be lawful and reasonable. Where it is not necessary to access a given cellphone, such as when alternatives exist that allow one to access one’s social media accounts, an order requiring the cellphone be remitted may be unreasonable. Allowing a tribunal to ‘change its mind’ its problematic; s uch second decisions may be vitiated.

July / August 2019

Singh v. Canada (Citizenship and Immigration), 2019 FC 915 (CanLII)

Facts: Mr. Singh is an Indian national who came to Canada in 2012 on a valid work permit. This permit was to expire in July 2017; shortly before expiration, Mr. Singh applied for an extension of this permit. Mr. Singh contended that we had retained an immigration consultant at this time, although CIC has no record thereof. CIC called Mr. Singh in November to discuss a processing fee; Mr. Singh claims that his consultant advised Mr. Singh that the call was likely fake. Relying upon this advice, Mr. Singh did not return the call or pay the fee; consequently his application for extension was denied. Mr. Singh subsequently sought a TRP with a different immigration consultant; this application was rejected per letter in May 2018. Mr. Singh claims that neither his old nor new immigration consultant received the letter. In September 2018 Mr. Singh’s new consultant made an e-mail enquiry about the status of the TRP application. CIC replied by email in October that the application had been denied the previous May; the consultant requested a copy of this decision, which CIC forwarded in December 2018. Later that same month, Mr. Singh filed application for leave and judicial review.

Issue: Was the officer’s denial of the TRP reasonable?

Holding: Yes. Application for judicial review denied.

Reasoning: [13] Once the Minister proved that the communication was sent and that no report was received that that the email was not delivered, the Applicant bore the risk involved in a failure to receive the communication. It was therefore incumbent on the Applicant to establish that the consultant’s email address was operating properly and that she did not receive the email from CIC for whatever reason. Only the consultant could speak to this. A negative inference is taken from the absence of direct evidence from the Applicant’s current consultant to rebut the presumption of communication of the Decision on May 18, 2018.

[20] The Applicant did not challenge the earlier decision rejecting his application for an extension of his work permit based on extenuating circumstances. That was the time to raise these issues. He chose instead to apply for a TRP which must be “issued cautiously, as they grant their bearers more privileges than other temporary statuses”:

[22] Nothing in the Record suggests that the Applicant would be unable to find work in India, that there was a personalized risk to the Applicant’s life or security of his person, or that he or his family would suffer hardship if he were to return to India. Given that a TRP is considered an “exceptional regime”, evidence is required of something more than inconvenience to an applicant to justify the issuance of a TRP Consequently, I find the Officer’s Decision reasonable.

Ratio: (1) If the government proves it duly sent documentation, a person claiming non-receipt must provide some explanation. (2) The granting of a TRP is ‘exceptional’ and mere inconvenience to the applicant does not justify giving him or her a TRP.

Potdar v. Canada (Citizenship and Immigration), 2019 FC 842 (CanLII) Facts: Ms. Potdar is a citizen of India. She received a provincial nomination certificate from the Nova Scotia Office of Immigration (NSOI) and applied to IRCC for permanent residence based on this nomination. IRCC contacted NSOI to raise concerns about misrepresentation on Ms. Potdar’s application; she had apparently failed to disclose that she had previously applied to immigrate under the Federal Skilled Worker (FSW) program and that she had a daughter studying at a college in Ontario. NSOI subsequently informed Ms. Potdar that her application had been withdrawn due to misrepresentation. She sent clarifactory emails and requested time to respond to these concerns, but this request was not granted. IRCC then denied Ms. Potdar’s application for permanent residence based on the withdrawal of the Nova Scotia nomination. (This loss of nomination caused a loss of points in her score to receive the initial invitation to apply for permanent residence, such that Ms. Potdar fell below the minimum). Ms. Podtar sought judicial review of the decisions. Issues: 1) Did the Federal Court have jurisdiction to review the impugned decisions? 2) Did IRCC act unfairly in communicating misrepresentation concerns to NSOI without notifying Ms. Potdar? 3) Was the (IRCC) Officer’s decision to deny permanent residence to Ms. Potdar unreasonable? Holding: 1) The IRCC decision was reviewable; the NSOI decision was not. 2) No. 3) No Application for judicial review dismissed. Reasoning:

[15] The NSOI is not a federal board, commission, or other tribunal; it is a provincial body. Its decisions are not reviewable in this Court.

[23] This application is limited to a review of the IRCC decision.

[26] The level of procedural fairness owed to an applicant is at the lower end of spectrum  The information was directly relevant to decision making within the provincial nominee program. IRCC was not making a decision based on the information but rather providing information to the appropriate program decision maker, the NSOI. The information was shared within a formal framework between NSOI and IRCC establishing the provincial nominee program.

[27]  Within this context, I am unable to conclude the Officer acted unfairly in communicating misrepresentation concerns to NSOI without notifying Ms. Potdar.

[30]  Ms. Potdar is essentially asking the Court to reconsider and reweigh the evidence. Ms. Potdar’s disagreement does not render the Officer’s decision unreasonable. It was reasonably open to the Officer to conclude that inaccurate or incomplete information was indicative of a misrepresentation in applying for the provincial nomination certificate and to share that concern with the NSOI.

[31]  In light of the NSOI decision to withdraw the provincial nomination certificate, the Officer’s decision to deny the permanent residence application was not unreasonable. The Officer addressed the requirements of the program, noted that Ms. Potdar no longer met those requirements, and on this basis refused the application.

Ratio: 1) The Federal Court will not review provincial immigration decisions. 2) IRCC is entitled to communicate concerns to provincial immigration authorities without notifying the person concerned. 3) Misrepresentation can ground a valid denial or withdrawal of a provincial nomination certificate (and consequent loss of the invitation to apply for permanent residence).

Gao v. Canada (Citizenship and Immigration), 2019 FC 939 (CanLII)


Facts: Ms. Gao is a citizen of China. She came to Canada and married her first husband in 2008; she obtained permanent residency the same year as a sponsored spouse. The couple divorced in 2010. Later in 2010, Ms. Gao met her second husband, Mr. Li. He had come to Canada in February 2010 and claimed refugee status -  a claim that was denied in October 2011. Ms. Gao and Mr. Li married in 2011; they have twin sons aged 77 and a daughter aged 2. In August 2012 Ms. Gao filed an application to sponsor Mr. Li as a permanent resident; this application triggered an investigation into potential misrepresentations regarding Ms. Gao’s first marriage. An admissibility hearing was convened before the Immigration Division in April 2015. The Member (of the ID) found that Ms. Gao was not a credible witness and that Ms. Gao’s first marriage had been entered into solely for the purpose of securing permanent resident status in Canada. On that basis, the Member issued an exclusion order deeming the Ms. Gao inadmissible to Canada. Ms. Gao appealed this decision to the Immigration Appeal Division. She admitted to misrepresentation and did not challenge the validity of the exclusion order per se, but rather sought that it be dismissed or stayed on humanitarian and compassionate considerations particularly the interests of her and Mr. Li’s children. An October 2018 decision of the IAD Division rejected Ms. Gao’s appeal. Ms. Gao sought judicial review at the Federal Court.

Issues: 1) Was the IAD’s decision reasonable? Specifically, 2) Did the IAD reasonably assess the evidence regarding the best interests of the children (BIOC)?

Holding:

1) No. Appeal allowed. Matter remanded to IAD for reconsideration.

2) No. This failure makes the IAD’s decision unreasonable.

Reasoning:

[33] The IAD’s approach unreasonably fails to recognize that the preponderance of the evidence suggests that there would be significant barriers to some or all of the children accessing permanent residence status or citizenship, public education, and public healthcare in China. Similarly, the evidence also suggests that the Applicant may well suffer forced sterilization upon return to China. While no single piece of evidence may conclusively show this to be inevitable, the IAD erred by failing to consider the evidence as a whole.

[34] This erroneous approach is further evidenced by the IAD’s repeated mention of testimony by the Applicant and her husband that if one parent were forced to return to China, the entire family would return. The IAD used this testimony throughout the Decision to discount several H&C grounds, reasoning that if the family would return en masse to China rather than live apart, any potential difficulties upon return could not be that severe. Such reasoning, faulting a family for a desire to remain together rather than separate young children from one of their parents, especially when used repeatedly throughout a decision, is unreasonable in a purposive H&C analysis.

[35] The Applicant’s conduct, lying repeatedly to immigration authorities for an extended period of time, is reprehensible. However, the clear language of subsection 67(1) of the IRPA entitles the Applicant to a full consideration of her H&C grounds. The IAD’s approach in this matter denied her this full consideration.=

Ratio: The reprehensible nature of an Applicant’s conduct should not deny him or her a full consideration on H&C grounds. Failure to consider evidence as a whole, or discounting the hardship caused to a family that wants to remain together at all costs, can constitute denial of such full consideration and vitiate a denial of a H&C based stay or dismissal of an exclusion order.

Edom v. Canada (Public Safety and Emergency Preparedness), 2019 FC 958 (CanLII)

Facts: Mr. Edom, his wife, and four children are Nigerian citizens. They came to Canada in October 2015 and made refugee claims, which were suspended and sent to the Immigration Division for an admissibility hearing; the ID found the Edom family was not inadmissible. The Minister (of Public Safety and Emergency Preparedness) appealed this decision to the IAD, which found that the family was indeed inadmissible because Mr. Edom had engaged in or instigated subversion by force of the Nigerian government. The essential issue was Mr. Edom’s admitted membership in the Movement for Actualization of the Sovereign State of Biafra [MASSOB], and whether MASSOB indeed engaged in or instigated subversion by force of the Nigerian government. MASSOB advocates the independence of the (formerly independent) Biafra region of Nigeria through nonviolent means. However the Minister contended that here were reasonable grounds to believe MASSOB engaged in violent subversive acts, which the IAD affirmed, thus denying the refugee status applications. Mr. Edom and his family applied for judicial review of the IAD decision, seeking that it be quashed and remanded to another member of the IAD for redetermination.

Issue: Was the IAD’s decision reasonable?

Holding: No. Decision set aside and sent to another IAD member.

Reasoning: [22]  In my view, the IAD unreasonably relied upon factual determinations in other decisions in finding that the MASSOB seized oil tankers. ... an individual case does not establish binding factual precedents or eliminate the necessity of proving facts in each individual case.

[23]  In this case, the IAD considered itself “bound” by the fact conceded in U.S.A. that the MASSOB high jacked oil tankers and, because the evidence presented by the Minister was similar to that presented in Benneth, the IAD found Benneth was “persuasive” in showing there were reasonable grounds to believe the MASSOB high jacked oil tankers.

[28]  In this case, at the ID hearing the Applicants submitted eight packages of documents and called two witnesses who testified by telephone from Nigeria. This documentation overwhelmingly speaks to the non-violent nature of MASSOB; none of it discusses the alleged seizure of oil tankers.

[29]  The IAD did not mention, let alone engage with, other evidence attesting to the non-violent nature of the MASSOB. It is apparent from the IAD’s reasons and decision that it referred to only those portions of the evidence which supported its conclusions… The apparent failure by the IAD to consider the evidence which contradicted its findings is not defensible and renders its decision unreasonable.

Ratio: Generally speaking, the facts must be proved in each case – it is improper to rely on factual (as opposed to legal) findings from other cases to support a determination of facts. Relial on facts from another case to support one’s conclusion, coupled with a failure to adequately mention or consider evidence that opposes one conclusion, can vitiate a conclusion making someone inadmissible.

Wei v. Canada (Citizenship and Immigration), 2019 FC 982 (CanLII)


Facts: Mr. Wei is a Chinese national who applied for permanent residence in Canada as a member of the Self-Employed Person class. He has an extensive net worth (apparently approximately $20 million CDN) and considerable and varied work experience in the cultural industry as a purchaser and seller of television dramas and movies as well as a television producer, publisher and director. Mr. Wei expressed an intent in his application to establish a Vancouver-based company for film and television culture communication or to take part in the operation management of a television drama production, producing content targeted at Chinese audiences, bringing Chinese content to Canadian audiences and introducing Canadian television programs to China. In March 2018 Mr. Wei was asked to submit documents related to his relevant experience as a self-employed person. In June 2018 Mr. Wei attended an interview in Hong Kong. The next day, Mr. Wei’s application was denied as he did not meet the requirements of the Self-Employed Person class.  In the refusal letter, the Officer found that Mr. Wei did not have a concrete business plan to meet the definition of a Self-Employed person under IRPA; had no idea of the costs of his intended business sin Canada; had no idea how to source potential clients or promote his business; and spoke neither of the two official languages. As such, the Officer indicated the Officer was not satisfied that Mr. Wei had established he had relevant experience or the ability and intent to make a significant contribution t specified economic activities in Canada s required by the IRPR.

Issue: Was the Officer’s decision (in finding Mr. Wei did not qualify as a Self-Employed Person) reasonable?

Holding: Yes. Application for judicial review denied.

Reasoning: [18]  In this case, the Officer had copious items in her contemporaneous notes demonstrating the Applicant’s inability to provide information on the various items listed in her decision letter. As she indicated in cross-examination, she had “no idea what he would be doing in the future and it all depends on if his application would be approved after he moved to Canada. The business plan consists of four pages expressing his belief and plans, with little in the way of concrete evidence on the record demonstrating at any point that he was in situation to follow up on any of it.”

[19]  The interview notes are sufficient evidence to support the Officer’s findings that the Applicant had not met the requirements of section 88(1) of the IRPR based on his intention and ability to be a potentially self-employed person who is able to make a significant contribution to the economic activity of filmmaking in Canada.

[23]  The Court must defer to an employee who has developed an expertise in assessing these types of economic claims in terms of determining that there is insufficient persuasive evidence to conclude that there is a likelihood that the applicant will follow up on his business plans after obtaining permanent residency. To do otherwise would involve the Court reweighing the evidence.

[27]  Moreover, on the issue of who is credible, the ... Applicant’s conviction for bribery in 2016 … does not assist the Applicant’s submission:

[37]  Such is this evidence, that it is not even clear that permanent residency is required for the project to succeed. The preceding production of the film in Vancouver did not require the Applicant’s permanent residency for its completion. The concept underlying a self-employed person under section 88(1) is that permanent residency status is necessary for the success of the project, not that the project can succeed otherwise, but that the Applicant should be rewarded with permanent residency if success results. The intention is that the Applicant be self-employed in Canada for the purpose of significantly contributing to a specified economic activity.

[45] Finally, the Officer cannot be criticized for noting that the Applicant could not speak either official language, particularly when it is stated as a factor in the overall assessment of being self-employed. The Applicant seeks to be a permanent resident in a country with two official languages where he speaks neither and proposes to take on a highly complicated project at the same time. Language abilities are always a relevant consideration for success in Canada. This is even more so for persons who wish to earn their way into the country to become permanent residents, where supposedly they will spend the rest of their life contributing to Canada, i.e. permanent residents

Ratio: The Court will generally respect and defer to the Officer’s expertise and judgment on specific issues. A failure to demonstrate that one has the necessity, ability and will to remain in Canada on a permanent basis as a self-employment person can ground denial of a visa in that class.

Febrillet Lorenzo v. Canada (Citizenship and Immigration), 2019 FC 925 (CanLII)


Facts: The Applicant, Ms. Febrillet Lorenzo, is a citizen of the Dominican Republic who first came to Canada on a visa in April 2012. In 2015 she married Mr. Castillo Sanchez who subsequently sponsored her application to be a permanent residence of Canada. They divorced on 25 January 2017; he withdrew his spousal sponsorship the very day. In May 2017 the Applicant made an application for permanent residence on H&C grounds. Per decision of November 2018, her application was denied. The Applicant sought judicial review.

Issue: Was the Officer’s decision denying Ms. Febrillet Lorenzo’s application unreasonable?

Holding: Yes. Decision vitiated and sent to another officer for redetermination.

Reasoning: [18]  However, the Officer appears to have failed to recognize that the domestic abuse the Applicant has suffered is, in and of itself, a compassionate factor to be weighed in the Officer’s analysis, not just that if she is removed from Canada she will not face that risk in the Dominican Republic. Further, the support provided to the Applicant by her friends and family in Canada should also have been considered in light of her circumstance as a victim of domestic abuse.

[24]  While it is not the role of court to reweigh the evidence in my view, this is a circumstance similar to Swartz . There the Court concluded that, despite generally accepting that the applicant had a history of an abusive relationship and particularly the physical and emotional abuse by her husband, the reasons showed no direct reference to the sympathetic consideration of the applicant’s circumstances as a result of her leaving an abusive relationship and thus foregoing any prospect of an approved sponsorship by her husband. The Court concluded that, in that way, the reasons of the immigration officer did not consider the circumstances in accordance with the guidelines concerning family violence.

[25]  I acknowledge that the Applicant could have submitted stronger evidence in support of her claim overall. However, I am satisfied that, similar to Swartz, the Officer in this matter erred in failing to consider, sensitively or otherwise, the domestic abuse that the Applicant suffered as a compassionate factor in the decision-making process, rendering the decision unreasonable.

Ratio: Failure to adequately consider the circumstances of a person who is the victim of domestic abuse can vitiate denial of a permanent resident visa (H+C).

Islam v. Canada (Public Safety and Emergency Preparedness), 2019 FC 912 (CanLII)

Facts: Mr. Islam is a Bangladeshi national. He is an acknowledged member of the Bangladesh Jatiyotabadi Dal, referred to in English as the Bangladesh Nationalist Party (BNP). An October 2018 decisions of the Immigrating Division ruled Mr. Islam inadmissible to Canada per IRPA 34(1)(c) and (f) for “engaging in terrorism” and/or “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in [terrorism.]” It is not disputed that Mr. Islam’s role in the BNP was limited to distributing leaflets and to standing on the street with banners; he did not have an official role in the organization. The BNP’s (and by extension Mr. Islam’s) engagement in terrorism is said to appen through the BNP’s calling for nation-wide strikes (hartals) to take palce, in which acts of violence have occurred, especially but not exclusively in the enforcement fo the strike order.

Issue: Was the ID’s decision reasonable? Specifically, it Mr. Islam’s membership in the BNP sufficient to engage the application of paragraphs 34(1)(c) and (f)?

Holding: No to both questions. Judicial review granted and the matter sent back to the ID for redetermination.
Reasoning: [23] In the case at bar, it is clear that the ID had some difficulty in bridging the calling of hartals with the requirement that there be an intention to cause harm. Rather it seems to be satisfied that “by calling for hartals, the BNP leadership knew or, at best, was wilfully blind to the fact that it would result in deaths and serious injuries” (ID decision, para 81). With all due respect, that does not correspond with the intention to cause death or serious bodily harm

[26]  By concluding the way it did, the ID conflates intent with knowledge and wilful blindness. Indeed, one is bound to ask ‘knowledge or wilful blindness as to what?’ It may even have injected an element of recklessness or even negligence. It states that the BNP knew or was wilfully blind that hartals would result in deaths or serious injuries. That does not constitute the intent to cause death or serious bodily harm. The ID had, based on the evidence before it, to find the intent to cause harm and not only that, calling for hartals, there was the knowledge that deaths and serious injuries would result. What is needed is that the harm is intentionally caused by the perpetrator.

[32]  The application of paragraphs 34(1)(c) and (f) in this case proposed by the ID is particularly sweeping. The scope given is so broad that the paragraphs in effect cover anyone who is a member of a legitimate organization that is said engages, has engaged or will engage in “terrorism”, without the specific intent being shown as being present. In the case of Bangladesh, hartals are a way to express political views: the two principal parties, the BNP and Awami League [AL] have been calling for these in the past. If the mere calling of hartals were to suffice, that would encompass many millions of members of parties in a country of 170 million inhabitants.

Reasoning: Mere willful blindness or knowledge that one’s acts will (indirectly) lead to death falls below the bar that constitutes terrorism. Failure to make this distinction can result in a Court vitiating as unreasonable the decision that such a group (and by extension its members) engage in terrorism.

September 2019

Tabari v. Canada (Citizenship and Immigration), 2019 FC 1046 (CanLII)

Facts: Tannaz Tabari is an Iranian national, married and with a son. She sought to pursue three years of post-bachelor’s study at Langara College in British Columbia. Ms. Tabari thus applied for a temporary resident visa (TRV) and study permit; her husband and son applied for multiple-entry TRVs. All three were denied their applications and challenged the visa officer’s decisions. Both applicants and respondent (the Minister of Citizenship and Immigration) agreed the Court could render one decision, on Ms. Tabari’s application, which would apply to the other applications in her family.

The officer denied Ms. Tabai’s application on the basis that the officer was not satisfied that Ms. Tabari would leave Canada at the end of the period authorized for her stay, based on factors such as her travel history, family tries in Canada, and purpose of her visit. The officer noted that her travel history was limited (and could not count as a positive factor); her husband and son planned to accompany her to Canada; and her education plan appeared vague and poorly documented.

Ms. Tabari sought judicial review, contending the officer breached procedural fairness by not giving her a chance to respond to credibility concerns, and moreover, that the decision itself was unreasonable.

Issues: 1) Did the officer breach procedural fairness?

2) Was the officer’s resulting decision unreasonable?

Holding: 1) No. A finding of insufficient evidence (to support Ms. Tabari’s contentions) is not the same as a finding of adverse credibility; there was no obligatin to provide Ms. Tabari an opportunity to respond.

2) No. The officer’s decision was within the range of reasonable options available. Another officer might have made a different decision on the same facts, but the actual decision was acceptable within the facts and law before the officer.

Application for judicial review dismissed.

Reasoning: 1) [22] I agree with the Minister that Mrs. Tabari conflates an adverse finding of credibility with a finding of insufficient evidence. The Officer’s concern arose from legislation, namely the requirement that Mrs. Tabari establishes on a balance of probabilities that she would leave Canada at the end of her authorized stay The onus was on Mrs. Tabari to provide the Officer with all of the relevant information and complete documentation in order to satisfy him or her that all statutory requirements were met.

[23]  Given that the issue here is not one of credibility but of insufficient evidence adduced by the Applicant to satisfy the Officer, there is no breach of procedural fairness.

2) [25]  I can understand from the reasons and the record why the decision was made, and I have not been convinced that the Officer ignored or misconstrued evidence. For example, it is clear that the travel history was considered neutral, not detrimental, and that Mrs. Tabari’s representative himself presented it as limited in the visa application. It is not unreasonable to consider that the family is not so well established to contemplate engaging such an expense since Mrs. Tabari has not been working since 2015, her history with her last employer was limited to about 15 months, and her prospective employment with this same employer was at least still 3 years away. Mrs. Tabari’s husband was presented as her main tie to Iran, although he is also seeking a TRV to visit her in Canada, with the result that her closest family could all be in Canada with her.

[26]  As counsel for Mrs. Tabari pointed out, it is possible that another Officer would arrive at a different conclusion. However, this is not the test under the reasonableness standard; the Court must rather determine if the Officer’s conclusion falls within the range of possible outcomes given the facts and the law. I am satisfied that the Officer’s reasons are adequate and that the Officer’s conclusion is reasonable.

Ratio: 1) A finding of insufficient evidence (to support an application) is not the same as a finding of adverse credibility and does not require the applicant be given the opportunity to respond thereto

2) Factors such as establishment in Canada, lack of travel history, and one’s educational plans can ground denial of a TRV/study permit.

3) An officer’s decision need not be the only decision available to the officer; as long as the decision falls within the range of acceptable outcomes, it will be sustained.

Jaballah v. Canada (Citizenship and Immigration), 2019 FC 1051 (CanLII)

Facts: The Jaballah family (father – Mr. Jaballah; mother – Ms. Al-Mashtouli – and four children) arrived in Canada in 1996 on false Saudi Arabian passports; they claimed refugee status on the basis of persecution at the hands of Egyptian security forces.  Mr. Jaballah was found ineligible for refugee status on security grounds and has been the subject of numerous security certificates and litigation thereabout. In 2011, Ms. Al-Mashtouli received Canadian citizenship. In 2016, she made an application to sponsor Mr. Jaballah as a spouse. The application remains pending and has thus far taken more than twice as long as the average processing time. The issue is Mr. Jaballah’s failure to provide a passport, which is a requirement of the process unless the individual is a protected person. Mr. Jaballah claimed that he is indeed a protected person, and that, at any rate, the failure to supply the passport is not his fault. Mr. Jaballah and his wife sought an order of mandamus compelling the Minister of Citizenship and Immigration to complete processing of the application.

Issues: 1) Is Mr. Jaballah a protected person?

2) Should the order of mandamus be granted?

Holding: 1) No. There has never been a decision granting Mr. Jaballah this status. Even if he cannot deported to certain countries, this holding does not equate to a finding that he is a protected person. Mr. Jaballah consequently remains

2) No. Mr. Jaballah has not met the passport requirement (and has not provided evidence as to why the failure to provide it is not his fault). Mr. Jaballah’s case fails to meet the requirements for an order of mandamus

Application for mandamus dismissed.

Reasoning:

1) [55]  The language in the IRPA is that protected person status is something conferred. Mr. Jaballah has never been granted protected person status under any provision of the IRPA

2) [86]  In Conille v Canada (Minister of Citizenship and Immigration)1998 CanLII 9097 (FC), [1999] 2 FC 33, the Court found that there were three requirements to be met in determining whether a delay in processing an application — in that case a citizenship application — has been unreasonable. A delay will be unreasonable if all of the following are found:

(1)  the delay in question has been longer than the nature of the process required, prima facie;

(2)  the applicant and his counsel are not responsible for the delay; and

(3)  the authority responsible for the delay has not provided satisfactory justification.

[69]  I am not persuaded that Mr. Jaballah has done all that he can do. He has stated, but not shown, that he is unable to obtain an Egyptian passport or birth certificate.

[74]  The statement that Mr. Jaballah is unable to obtain an Egyptian passport is not supported by any correspondence showing a request for such a passport or a denial of a passport. There are no specifics of the process which led Mr. Jaballah to conclude that he could not obtain an Egyptian passport of some sort. He has alleged that he at the very least has recently received an old Egyptian passport.

[75]  For all the foregoing reasons, I am not able to find that Mr. Jaballah has done all that he could to obtain a travel document nor that he is unable to obtain an Egyptian passport.

Ratio: 1) To enjoy protected persons status, one must have it conferred.

2) Failure to provide requisite documentation, or at least explanation for its absence, can ground denial of processing of a spousal sponsorship application.

Li v. Canada (Citizenship and Immigration), 2019 FC 1027 (CanLII)

Facts: Ms. Li is a citizen of China. She sought permanent residence in the “self-employed persons class” on the basis of cultural activities – she is a translator and interpreter. She claims to have worked in these fields since 2004 and have been a self-employer worker therein since 2013. It is established she holds qualifications in the domain. The visa officer rendered a negative decision on 28 August, 2018, determining that Ms. Li’s work did not qualify as cultural activity within the meaning of IRPA. Three days later, the officer amended the officer’s original decision, determining that Ms. Li’s work indeed qualified as cultural activity, but continuing the denial of Ms. Li’s application. Ms. Li sought judicial review of this second decision.

Issue: 1) Was the officer’s decision unreasonable? Did the officer err in concluding that Ms. Li failed to meet the requirements of the self-employed persons class?

Holding: No. Ms. Li had failed to demonstrate the ability to become self-employed in Canada.

Accordingly the application for judicial review was denied.

Reasoning: [22] The applicant did not discharge the burden of proving that she had “the ability and intention to be self-employed in Canada and to make a significant contribution to cultural activities in Canada”.

[23] A person may be talented and may even have in-depth knowledge, but that does not necessarily mean that the person has the ability to be self-employed; this must be linked to the intention and ability to create his or her own employment.

[24] The assessment of visa applications is subject to the officer’s authority, based on the standard of reasonableness (Griscenko, above).

[25] The affidavit filed in evidence by the applicant demonstrates that she “has been working as accompanying interpreter for important political figures such as Mr. Xi Jinping, Mr. Yu Zheng Sheng and Mr. Han Zheng. She has also worked as English Editor for the Magazine – Great Arts.”

[26] Thinking about something and doing something are two different things: “She also has checked some translation company, she thinks she will contact them and cooperate with them”! This is very vague and unrealistic …

[27] The applicant did not demonstrate the intention and ability to create her own employment.

Ratio: Failure to demonstrate one’s ability to be self-employed can ground denial of one’s application for permanent residence in that class.

Canada (Public Safety and Emergency Preparedness) v. Ahmed, 2019 FC 1006 (CanLII)

Facts: Irshad M. Ahmed is a citizen of Somalia. He came to Canada in 1990 as a child and was granted permanent resident status in 1995. Beginning in in 1998, Mr. Ahmed accumulated over 30 criminal convictions, including assault, trafficking in drugs and firearms, and conspiracy to commit an indicatable offence. In 2001, Mr. Ahmed was covicted of forcible confinement, extortion, and pointing a firearm. He subsequently became subject to s. 44 of IRPA and a deportation order against him was issued.

In 2014, Mr. Ahmed was sentenced to over 7 years in federal custody for a number of convictions relating to the trafficking of prohibited substances and firearms. In 2018 Mr. Ahmed was eligible for parole from the foregoing sentence and apparently passed from federal incarceration to immigration custody. The latter detention was reviewed several times. The most recent hearing, in May-June 2019 resulted in a decision (June 3; amended June 5) by a member (“Member”) of the Immigration Division (ID) of the Immigration and Refugee Board (IRB) releasing Mr. Ahmed from detention subject to a number of conditions. The Minister of Public Safety and Emergency Preparedness challenged this Order of Release.

Issues:
A) Did the member err by failing to consider paragraphs 245(d) and 245(e) of the Regulations?
B) Did the Member err by concluding that the respondent is rehabilitated?
C) Did the Member err by failing to ensure the terms of release virtually eliminated the risk the Respondent posed to the public?
D) Should costs be awarded?

Holding:

A) No. The Member considered these factors (which require the Member to take into account (245(d)) previous compliance with conditions in respect of entry, release, or stay of removal or (245(e)) any previous avoidance of examination to escape from custody or previous attempt to do so.
B) No. The Member was reasonable in finding Mr. Ahmed was on his way to rehabilitation.
C) No. The Member’s decision was unreasonable.
D) No. This is not an extraordinary case which would justify awarding costs to the Respondent (which the Respondent has sought).

Application for judicial review dismissed.

Reasoning:

A) [27] … the Member acknowledges at several points in the Reasons the Respondent’s past institutional misconducts and criminal convictions. While the Member may not have explicitly acknowledged the Respondent’s past breaches of the conditions stemming from his past immigration releases, the Member was presiding over a Hearing which spanned five days, involved testimony by numerous witnesses, and resulted in over 300 pages of transcript.

B) [31] The Minister mischaracterizes the Member’s finding. At no point in the Reasons does the Member determine that the Respondent is rehabilitated. Rather, the Member states at various places that the Respondent has “moved towards rehabilitation”, is “in the path of rehabilitation”, and is engaged in a “rehabilitation process”. The Member even clarifies at one point in the Reasons - “I’m not saying that you have rehabilitated because even yourself you have acknowledged that, you know, you still need some help and assistance.”

[32] Moreover, there was considerable, conflicting evidence before the ID as to the extent of the Respondent’s rehabilitation and alleged links to institutional subculture. The ID considered this evidence in depth and reasonably weighed it. The Minister invites this Court to intervene and reweigh the evidence that was before the Member, but that is not the role of this Court (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 (CanLII) at para 61).

C) [37] The Minister is again asking this Court to reweigh the evidence that was before the Member. The Member reviewed the evidence in detail, and concluded that a release plan involving five sureties, a significant amount of money being posted as bond by the Respondent’s family members, and an electronic monitoring system, was an appropriate alternative to the Respondent’s continued detention. This determination was reasonable.

D) [38] Rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 state that “No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders.”

[39] The Respondent asks for costs on a solicitor and client basis, or in the alternative for tariff costs. The Respondent argues that the Minister violated their disclosure obligations at the Respondent’s first six detention review hearings, and that the Minister overstates the Respondent’s incidents of institutional misconduct.

[41] This Court has consistently held that “special reasons” may exist if one party has engaged in conduct which is unfair, oppressive, improper or actuated by bad faith or has unnecessarily or unreasonably prolonged proceedings (Kargbo), 2011 FC 469 (CanLII) at para 32).

[42] The circumstances of this matter do not constitute special reasons. Having reviewed the recent decision of Justice Mosley in Allen 2018 FC 486 (CanLII), which comprehensively reviews disclosure obligations in detention review hearings, it is not clear on the record before me that the Minister did not meet his disclosure obligations. Additionally, as the evidence of the Respondent’s institutional misconduct is decidedly mixed, the Minister’s arguments on this point do not show conduct which is unfair, oppressive, improper or actuated in bad faith, nor has the Minister unreasonably prolonged these proceedings. No costs are awarded.

Ratio: The Court will grant deference to, and uphold, a release from immigration detention where it is satisfied that the ID/member thereof adequately considered the relevant factors. An award of costs is exceptional and only justified if there are special reasons therefor.

Azam v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1033 (CanLII)

Facts: Muhammad Azam is a Pakistani national who came to Canada in April 2018 on a visitor visa and made a refugee claim the subsequent month. However, in December 2018, a decision of the Immigration Division (ID) deemed ho, inadmissible on the grounds of serious criminality; there is a warrant for his arrest in Pakistan as well as a Red Notice from Interpol. These warrants stem from a firefight in which Mr. Azam was engaged in February 2018. There are different accounts of what happened. In Mr. Azam’s original version (given when detained by Canadian authorities) a group of armed men fired on Mr. Azam; he disarmed one of them, and ran to the roof and shot at them, injuring (not fatally) three or four of them. According to Mr. Azam’s revised version (given at his inadmissibility hearing) armed men attacked Mr. Azam but were disarmed by neighbours without Mr. Azam shooting anyone. Mr. Azam attributed the discrepancy between the original and subsequent versions to PTSD. The official Pakistani government account, meanwhile seems to accord with Mr. Azam’s first version.

Issue: Was the ID unreasonable in concluding Mr. Azam is inadmissible to Canada on the grounds of serious criminality? Specifically, did the ID err in according weight to Mr. Azam’s first version of events?

Holding: No. The ID made a reasonable decision that Mr. Azam perpetrated an offence in Pakistan that would constitute an offence under Canadian legislation per IRPA para. 36(1)(c).

The application for judicial review was dismissed.

Reasoning:

[17]  The ID did not err in concluding that the Applicant in inadmissible in respect of reasonable grounds to believe that the offence committed in Pakistan would constitute an offence under Canadian legislation as per paragraph 36(1)(c) of the IRPA.

[18]  The first declaration of the Applicant before the Immigration Officer should be found more credible than that before the ID. Reference is made to Ishaku2011 FC 44 (CanLII), stating clearly that more weight should be given to a spontaneous declaration at a port of entry rather than subsequent explanations which become vague or contradict initial versions based on spontaneity.

[21]  The offence under section 324 of the Pakistan Penal Code and under subparagraph 239(1)(a.1) of the Canadian Criminal Code is similar in context.

[23]  Although the Applicant disagrees with the Board for having given more weight to his initial version to the Canada Board Services Agency Officers than his later version to the Board. The Board is not seen, as per the evidence on file, to have ignored evidence but it gave more weight to the first version of events as recounted by the Applicant.

[24]  The evidence is to the effect that firearms were used on the Applicant’s property and that the Applicant did take matters into his own hands to fire and wound three or four of the attackers, all of whom were involved in a fire fight.

Ratio: More weight is to be given to explanations spontaneously given at the port of entry then to subsequent/contradictory declarations. The former kind of explanation, at least when coupled with supplementary evidence, can ground a determination that a person is inadmissible to Canada on the grounds of serious criminality.

Toney v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1018 (CanLII)

Facts: Ms. Yemaria Sherna Toney is apparently a national of St. Vincent and the Grenadines (“St. Vincent”) and the principal applicant (PA) on this application. Ms. Toney first came to Canada in 2001 with her then infant daughter, Cleval. The two returned to St. Vincent briefly in 2006 and then re-entered Canada the same year as temporary residents. In 2007 they filed a refugee claim as victims of domestic abuse in St. Vincent. In 2009 the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) denied this application. The Toneys’ subsequent application for leave and judicial review of this decision was denied. In March 2010 the Applicants made an application for a pre-removal risk assessment (PRRA); this application was denied and in April 2010 they were ordered to leave Canada. The applicants failed to appear at their scheduled pre-removal interview in June 2010 and warrants for their arrest were issued. In 2016, the PA retained an immigration consultant to help her in regularizing her status in Canada; the PA prepared an application for permanent residence on humanitarian and compassionate (H&C) grounds but never filed it. In April 2017 the PA married her husband, Mr. Patterson, who is also from St. Vincent and was found to be a Convention refugee in 2004. In August 2017, the PA hired a second consultant to file a H&C application; but this consultant also did not file the application. In November 2017, Cleval Toney was arrested for shoplifting; the applicants and their outstanding arrest warrants came to the attention of CBSA. Both Toneys were arrested and released subject to reporting conditions. In 2018, the PA attended an interview with CBSA. The second consultant completed a form for the PA indicating that the H&C application had been completed when it had not in fact been. The PA alleges negligence on the part of the consultants she hired in 2016 and 2017. In 2018 the PA and her husband hired a third consultant, who did file an application for permanent residence for Mr. Patterson on the basis of Mr. Patterson’s convention refugee status. The Applicants were listed as dependents on this application. A Direction to Report was issued to the Applicants on 18 July, 2018 for removal to St. Vincent on 4 August, 2018; the Applicants immediately requested a deferral of their removal. That deferral was denied on 2 August, 2018 and is the subject to this application. On 3 August, 2018, the Court ranted the Applicants a motion to stay their removal.

Issues: 1) Should Ms. Yemaria Toney’s (the Principal Applicant’s) application be denied because she comes to the couert with ‘unclean hands’?

2) Did the officer fail to reasonably assess Cleval Toney’s best interests?

3) Did the officer unreasonably discount the PA’s efforts since 2016 to submit her H&C Application?

Holding:

1) No. Although the PA’s conduct (evading removal, etc.) is a factor that would allow the Court to dismiss the application for unclean hands, it must be balanced with the interests of Cleval, who played no role in her mother’s unseemly conduct. Moreover, an officer failed to reasonably dconsider the PA’s efforts to file an H&C Application in 2016. There is also the factor of the Toneys’ long establishment in Canada and Cleval’s specific circumstances of having lived in Canada virtually her entire life.

2) No. The officer conducted a reasonable analysis of Cleval’s best interests.

3) Yes. The officer failed to consider whether the PA’s reliance on consultants mitigated her ultimate responsibility t ensure the H&C filing had been made.

Application for judicial review granted.

Reasoning:

1) [23]  It is clear that the Principal Applicant comes before this Court without clean hands. She knowingly failed to report for removal in 2010 and took no action to regularize her status until 2016. The Principal Applicant’s misconduct frustrated a valid removal process, undertaken after a negative RPD decision and timely PRRA assessment. Her risks on removal had been fully evaluated in conformity with Canadian immigration laws.

[25]  Balanced against the Principal Applicant’s conduct is the fact that Cleval played no part in her mother’s decisions to try to mislead the RPD and the PRRA officer and to evade removal in 2010, as noted by Justice Mosely in the Stay Order. The consequential impact on Cleval of her mother’s conduct is a relevant consideration but is not determinative (Debnath at para 27)

[26]  For the reasons set out below, I have found that the Officer failed to reasonably consider the Principal Applicant’s efforts to file an H&C application. She began the process prior to CBSA renewing its removal efforts in 2017. Had the H&C application been filed in 2016, the Applicants’ long establishment in Canada and Cleval’s specific circumstance of having effectively lived her whole life in Canada could have been considered in a timely fashion. Taking into account the implications of the Officer’s error in the context of a deferral decision, and the importance of a current assessment of Cleval’s interests, I will exercise my discretion and consider this application on its merits.

2) [30] The Officer did not err in the consideration of Cleval’s best interests within the limited scope of the discretion afforded to a CBSA enforcement officer.

[31]  The Officer’s consideration of Cleval’s best interests in the Decision is brief. It is by no means a comprehensive analysis. However, the Officer was not engaged in the assessment of an H&C application.

[37]  In order to assess whether the Officer properly exercised their discretion and reasonably considered the Applicants’ submissions regarding Cleval’s short-term best interests, it is necessary to review the deferral request itself. The Applicants first submitted their request by letter from Mr. Ramkissoon on July 18, 2018. The focus of the submissions in the letter was the issues encountered by the Principal Applicant in attempting to prepare and file her H&C application in 2016 and 2017. The June 25, 2018 letter requesting the Minister’s intervention in the Applicants’ case also focused on the H&C application.

[38]  Additional deferral submissions were made by the Applicants’ current counsel on July 31, 2018. Cleval’s best interests were addressed in those submissions:

[42]  The Officer’s analysis was somewhat generic and brief but this is a reasonable reflection of the Applicants’ deferral submissions. The Applicants did not identify any short-term issues for Cleval of the nature identified in the jurisprudence. The submissions focussed on concerns of family separation and dislocation. No doubt the separation from Mr. Patterson and his son would be disruptive as would the return to a country of which Cleval has no knowledge or experience. However, these are not short-term issues and are among the inherent consequences of removal.

[46]  When considering a deferral request, an enforcement officer must focus on the short-term best interests of any children affected by the removal. In order to do so, the officer must be provided with reasonably specific submissions and information regarding those short-term interests. It is not enough to state that the child or children in question will suffer emotionally or that separation from remaining family members will be disruptive. The Applicants’ general reliance on Kanthasamy in support of their deferral submissions is misplaced as the Officer was not conducting a section 25 H&C evaluation. As stated in Lewis (at para 74), the Officer was not required to conduct a full-blown best interests of the child analysis, nor did Cleval’s best interests necessarily outweigh all other considerations in the analysis.

3) [47]  The Applicants submit that the Officer failed to reasonably consider the evidence of negligence on the part of the Principal Applicant’s professional advisors through 2016 and 2017 that negated her attempts to file an H&C application. They argue that the delays must be taken into account in assessing the timeliness of Mr. Patterson’s 2018 Application. I agree with the Applicants as the evidence in the record suggests that, but for the inaction of her advisors, the Principal Applicant would have submitted an H&C application in 2016, a relevant consideration in the deferral request.

[48]  The Officer’s treatment of this evidence suggests a boilerplate approach. The statement in the Decision that it is an applicant’s responsibility to ensure any and all applications prepared on their behalf are properly made, while true, does not take into account the Applicants’ specific circumstances. I find that the Decision is not reasonable as I am unable to assess whether the refusal of the deferral request is among the possible outcomes for the case in light of the particular facts and evidence before the Officer.

[56]  The Officer failed to consider whether the Principal Applicant’s reliance on her consultants mitigated her ultimate responsibility to ensure the H&C filing been made and whether the inaction of the consultants established special circumstances justifying a deferral of removal. The Officer did note that the Principal Applicant had not filed formal complaints against the consultants. In my view, if this fact led to a belief that the allegations of negligence were not credible, the Officer was required to make a credibility finding in the interests of transparency and intelligibility.

[57]  A reasonable consideration of the effects on timeliness of the Principal Applicant’s frustrated H&C efforts may or may not have resulted in the granting of a deferral. The Officer would have to assess the temporal limitations on the discretion to defer removal. In Forde, the Court stated that the special considerations that may warrant deferral must be temporary in nature (Forde at para 40, citing Canada (Public Safety and Emergency Preparedness) 2011 FCA 286 (CanLII), at para 45, and Newman at para 33). The special considerations in this case impact on the issue of timeliness. If the Principal Applicant had filed an H&C application in 2016, it would have been outstanding for two years at the time of the Decision. The timing of that filing would not have addressed the Principal Applicant’s six-year delay from 2010 but would have cast the timing of the 2018 Application, and her actions, in a different light. Also, a decision on a 2016 H&C application would have been a much shorter term proposition than a decision on the 2018 Application.

Ratio: 1) An applicant who comes with ‘unclean hands’ may have her/his application dismissed for this reason; however the Court may still entertain it for other reasons.

2) The Best Interests of the Child (BIOC) analysis may be relatively brief, and at any rate, it is but one (if important) factor to consider in the larger context of an application.

3) An officer’s failure to take into account the impact of immigration consultants and potential liability thereof in the context of a tardy H& application can vitiate the officer’s negative finding on the application.

October 2019

Bteich v. Canada (Citizenship and Immigration), 2019 FC 1230 (CanLII)

Summary: Elia Bteich is a Lebanese national. He has immediate family present in Canada. In 2019 his application for a study permit was denied, based on, among other factors, his strong family ties to Canada. These factors made the Officer dubious of Mr. Bteich’s intention to leave Canada at the end of Mr. Bteich’s authorized stay.

Issue: Was the Officer unreasonable in denying Mr. Bteich the study permit?

Holding: Yes. The application for judicial review was granted and the file remitted for consideration by a different officer.

Reasoning: [34]  …  the Applicant has strong ties in Canada with well-established and legally established members of his family...the Officer should not have drawn negative inferences from the Applicant’s family ties in Canada. If anything, the Officer should have considered the financial support the Applicant’s family provides as a positive factor. At the very least, the Officer should have justified his/her reasoning: it is unreasonable to infer that Applicant will remain in the country illegally simply because he has strong family ties in Canada.

Ratio: Strong family ties to Canada are not, in and of themselves, reasons to believe a person will not leave Canada at the end of the period of his or her authorized stay

Gauthier c. Canada (Citoyenneté et Immigration), 2019 CF 1211 (CanLII) (French)

Summary: Phara Gauthier is a citizen of Haiti. She was accepted to a secretarial program in Quebec and gained authorization of Quebec to come there. However, in September 2018 her application for a Canadian study permit was denied. Ms. Gauthier has family ties to Canada, including a sister with permanent residence status who was to act as Ms. Gauthier’s guarantor. The Officer’s stated concerns included Ms. Gauthier’s ties to Canada, lack of economic ties to Haiti, and insufficiency of Ms. Gauthier’s sister’s financial resources.

Issue: Was the officer unreasonable in denying Ms. Gauthier the study permit?

Holding: Yes. The decision was quashed and sent to a different Officer for determination.

Reasoning: The presence of family ties does not mean Ms. Gauthier will not leave Canada at the end of her stay. Most people in their twenties, like Ms. Gauthier, are not strongly economically established in their home country anyways. Ms. Gauthier’s sister’s financial resources appear adequate.

Ratio: Strong family ties to Canada, or a lack of strong economic ties to one’s home country, do not indicate a person will necessarily remain in Canada at the end of the period of his or her authorized stay.

Nwaubani v. Canada (Citizenship and Immigration), 2019 FC 1192 (CanLII)

Summary: The Nwaubani family are citizens of Nigeria; the unit consists of the father/husband (Principal Applicant), wife/mother, and a minor son (collectively the Applicants). In 2017 the Principal Applicant applied for a visa to visit Canada with his wife. This application was denied on the grounds of misrepresentation, namely that the Applicants had not been truthful about the number of times they were denied entry to the United States. In 2018 the family applied for temporary residence visa (TRV); again the application was denied to due misrepresentation. In the interim, the family had sought judicial review of the first decision, which had been quashed and sent for redetermination.

Issue: Was the Officer unreasonable in denying the visa to visit Canada?

Holding: Yes. The decision was quashed and remanded to another Officer.

Reasoning: [15] I am not satisfied that the Officer reasonably refused the Applicants’ request for a TRV. It is not transparent that the Officer considered the defence of an innocent mistake exception to misrepresentation.

Ratio: Failure to consider the innocent mistake defence to misrepresentation can vitiate denial of a visa.

Idrizi v. Canada (Citizenship and Immigration), 2019 FC 1187 (CanLII)

Summary: Marcel Idrizi, an Albanian citizen, came to Canada in 2012 and sought refugee status, claiming persecution as a gay man in his native land. In 2014 his claim was rejected but he remained in Canada on a series of work permits. In 2016, he married Ms. Ruko, also an Albanian national but who had become a permanent resident of Canada shortly before. Ms. Ruko had come to Canada as a refugee herself, claiming persecution as a lesbian. Later in 2016, she applied to sponsor him as her spouse. A daughter was born to the couple in 2017. In 2018, an Officer rejected the sponsorship application, concluding that the couple had failed to prove their union was not entered into for the purpose of acquiring status, and moreover, that the marriage was not genuine. The Officer noted some inconsistencies and discrepancies between the two spouses’ accounts of their relationship and conflicting evidence of their cohabiting.

Issue: Was the Officer’s determination reasonable?

Holding: No. The decision was quashed and sent to another Officer for re-determination.

Reasoning: [32] The real difficulty with the decision is that, having decided to focus on evidence relating to whether Mr. Idrizi and Ms. Ruko were living together, the officer fails to make the findings of fact necessary to tie that evidence to the two questions in issue. Mr. Idrizi and Ms. Ruko had to show that they did not get married for an immigration purpose and that their marriage is genuine. As a matter of logic and common sense, evidence relating to cohabitation is relevant to these questions. The officer found that the spousal status should not be recognized on both grounds under section 4(1) of the IRPR: the marriage was entered into primarily for the purpose of acquiring any status or privilege under the Act and it is not genuine. However, the officer does not make the findings of fact necessary to support these conclusions. The result is a decision that lacks justification, transparency and intelligibility.

[34] However, as noted, the officer never made an express finding that Mr. Idrizi and Ms. Ruko were not living together. Instead, the officer found the conflicts in the evidence on this point to be sufficient to conclude that the relationship is not genuine. In the absence of a finding of fact on the key question of whether Mr. Idrizi and Ms. Ruko lived together, the foundation for the officer’s ultimate conclusion is uncertain at best.

[36] In my view, the more telling flaw in the decision identified by Mr. Idrizi is the officer’s failure to give any meaningful consideration to evidence that arguably weighed heavily in favour of the genuineness of the marriage – namely, the fact that Mr. Idrizi and Ms. Ruko had had a child together. The officer asked only a few inconsequential questions about the child and whether Mr. Idrizi and Ms. Ruko wanted to have another (to which questions they provided mutually consistent responses). The officer’s conclusory statement that the “existence of a child is not determinative of a positive decision,” while correct, is insufficient. By any measure, the fact that Mr. Idrizi and Ms. Ruko had had a child together is a significant consideration in assessing the genuineness of their marriage yet it is dismissed in an entirely cursory fashion. There may well be good reasons to find that it does not tip the balance in Mr. Idrizi’s favour. It was the officer’s responsibility to set them out in a comprehensible way. This was not done.

[37] The fact that Mr. Idrizi and Ms. Ruko had had a child together could also support the inference that their marriage was not entered into primarily for an immigration purpose. The officer does not engage with this question in any way whatsoever before drawing an adverse conclusion about why Mr. Idrizi and Ms. Ruko got married.

Ratio: The failure to make explicit findings of fact (as opposed to merely reviewing evidence) can make resulting conclusions suspect and vitiate a finding a marriage was entered into for the purpose of gaining (immigration) status, or was not genuine. Likewise, failure to adequately consider the existence of a child of a union can vitiate a finding that the union was entered into for the purpose of gaining status or was not genuine.

Budhram v. Canada (Citizenship and Immigration), 2019 FC 1185 (CanLII)

Facts: Mr. Budhram is a citizen of Canada. Commencing in September 2013 Mr. Budhram met Ms. Thipthida, a citizen of Laos visa Skye; further communications ensued. In November 2013 Mr. Budhram travelled to Laos to meet Ms. Thipthida; the couple married, the day after he arrived, in a Buddhist ceremony. A civil ceremony took place, also in Laos, in 2014. Mr. Budhram travelled to Laos twice in 2014 and once in 2018. Mr. Budhram applied to sponsor Ms. Thipthida, under the spousal category, for permanent residency in Canada. However, the Officer found that the marriage was not genuine, and entered into for the purpose of acquiring immigration status. Mr. Budhram appealed to the Immigration Appeal Division (IAD); this tribunal found Mr. Budhram to be credible and that to him, the marriage was genuine. However, the IAD also concluded that for Ms. Thipthida, the marriage was of a primarily transactional nature and entered into for the purpose of facilitating her immigration status in Canada.

Issue: Was the IAD’s decision unreasonable?

Holding: No. The application for judicial review was dismissed.

Reasoning: [18] First, in response to the IAD’s concerns about the couple marrying less than six weeks after they were introduced, the Applicant argues that the Buddhist ceremony was necessary to allow them to stay together in compliance with Laotian law. I agree with the Respondent’s position that this argument does not meaningfully address the IAD’s concern that a mother of a young daughter would enter into this formal a relationship so quickly.

[19] Second, the Applicant relies on country condition documentation, presented through his Affidavit, that there is significant social stigma associated with being an unmarried woman, and particularly a mother of a child born outside marriage, in Laos. However, the Respondent notes that this country condition documentation is not found in the Certified Tribunal Record or in the National Documentation Package for Laos. The Respondent therefore argues that this documentation was not before the IAD when it made its decision. It further submits there is no evidence that Ms. Thipthida was encountering this sort of stigma in her particular circumstances in Laos. I agree with these submissions and find this argument by the Applicant raises no reviewable error by the IAD.

[30] Having considered the Applicant’s arguments, I find that the IAD did not misconstrue, misinterpret or misapply the law to the facts of this case, and that it is reasonable.
Ratio: Failure to furnish sufficient information or explanation to demonstrate that one’s marriage is genuine (or not entered into for the purpose of gaining immigration status in Canada) can sustain a conclusion that the marriage is fraudulent, and consequent denial of spousal sponsorship.

Damian v. Canada (Citizenship and Immigration), 2019 FC 1158 (CanLII)

Facts: Maria Damian is a Colombian citizen. She was brought to Canada as a ten-year old, in 2007, by her mother; the mother had planned to marry a Canadian citizen, but the latter fell ill and died. Neither Ms. Damian nor her mother have had legal status in Canada since 2009. In 2017, Ms. Damian applied to regularize her situation, by seeking permanent residence on the basis of a humanitarian and compassionate (H&C) exemption. On her application, she tendered evidence of strong ties to Canada, such as her steady work and her involvement in a religious community, as well as concerns about her return to Colombia, including her suffering a medical condition (polycystic ovary syndrome) and the difficult conditions in Colombia (violence, poverty). The Officer commended Ms. Damian’s work and community involvement in Canada but noted that she had been present illegally for nearly a decade.

Holding: Yes. The decision was quashed and remanded to another decision maker for review.

Reasoning: [24] As noted above, the officer commended Ms. Damian for her work ethic and communal involvement. However, these establishment factors were then entirely discounted, or at least given “little weight”, on the basis that Ms. Damian’s establishment was based on a “wilful disregard” of Canadian immigration law, since she remained and worked in Canada without authorization. In reaching this conclusion, the officer clearly discounted Ms. Damian’s establishment during the entirety of her time in Canada, as the officer referred to her being “without legal status for over 9 years”, a time frame that coincides with the entire length of Ms. Damian’s stay in Canada since the age of ten.

[25] There is no reasonable basis to conclude that a child who was brought to Canada by her mother acted in “wilful disregard of Canadian immigration law”, did so “by her own volition”, or was “fully cognizant that her immigration status was uncertain.” To hold the conduct of a parent against their child in such a manner is contrary to the notion of a “humanitarian and compassionate” approach to the assessment and is unreasonable.

[30] As Justice Gleason, then of this Court, noted in Diabate v Canada (Citizenship and Immigration), 2013 FC 129 (CanLII) at para 36 [Diabate], “[i]t is both incorrect and unreasonable to require, as part of [the H&C] analysis, that an applicant establish that the circumstances he or she will face are not generally faced by others in their country of origin.” While Justice Gleason was addressing a pre-Kanthasamy formulation of the H&C analysis, this Court has applied the same principle post-Kanthasamy:

[31] As the Minister correctly points out, Kanthasamy requires that an applicant show that they would be personally affected by adverse country conditions: Kanthasamy at paras 55-56. However, I cannot agree with the Minister’s submission that the officer in this case was simply concluding that there was no demonstrated direct negative impact of the country conditions on Ms. Damian. To the contrary, the officer expressly discounted the concerns of violence in Colombia not because it was not shown that it would impact Ms. Damian, but because that impact would be the same as that felt by others in Colombia. This is the reasoning and approach to adverse country conditions that was held to be unreasonable in Diabate and it is equally unreasonable here.

Ratio: Discounting establishment factors by accusing someone of willful disregard for Canadian immigration law for actions when the person was a minor can vitiate denial of permanent residence on H&C grounds. Likewise, disregarding country conditions evidence by claiming the applicant is not at greater risk than others in the country is an incorrect approach and can vitiate denial of permanent residence on H&C grounds.

November 2019

Singh Grewal v. Canada

Harinder Singh Grewal completed a program of general studies at Douglas College, and he then applied for a Post-Graduate Work Permit (PGWP). The Officer refused the application due to the mistake on the date of the Graduation Letter sent by the school to the Immigration Refugee and Citizenship Canada (IRCC). Later, Douglas College sent the amended Graduation Letter to Singh Grewal Harinder. His representative forwarded this letter to the IRCC and requested reconsideration, since the initial decision on the PGWP was based on a “clerical mistake.”

The record is clear that Douglas College, an accepted designated learning institution by IRCC, has provided IRCC with wrong information. The Applicant provided the correction on time once that information was provided to him by the College. The Court allowed the application.

El Sbayti v. Canada

While completing an online application for a Temporary Resident Visa to Canada, applicant Karim El Sbayti was prompted to answer “no” to the question if he has been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory. Between 2011 and 2013, El Sbayti received a Voluntary Departure Order, where he was subjected to a removal order. The Visa Officer, assessing his application, equated “subject to a removal order” with “order to leave” the United States. The Visa Officer’s position is that his determination was reasonable given that the events that happened between 2011 and 2013 were engraved in the applicant’s memory.

The issue is to determine whether or not the applicant made a misrepresentation in answering the question regarding previous visas and removal orders.

Considering that the applicant’s opinion is that he answered the application question correctly, the Visa Officer should have considered whether the applicant fell under the innocent misrepresentation exception. The American Attorney, who represented the applicant in his application to the U.S.A., provided a letter explaining the interpretation of the foreign law supporting the applicant’s claim that he was not deported, nor denied a visa in the U.S.A.

The Visa Officer, examining the application, did not consider the argument of the American Attorney and did not provide reasons as to why he disagreed.

The Officer’s determination to suspend the applicant from applying for a visa to Canada for five years was deemed by the Federal Court as a serious consequence of the Visa Officer’s decision, and as such, the Court accepted El Sbayti’s application.

December 2019

AlGohar v. Canada

Mr. AlGohar acknowledged that he had been refused a visa to the United States of America (U.S.A.). The refusal had not come to mind when the questions were previously asked because a U.S.A. visa had been granted later. Mr. AlGohar’s U.S.A. visa refusals were not inaccurately represented – rather omitted, despite the information being expressly requested in the written application. By doing so, Mr. AlGohar potentially deprived the Immigration Officer of the opportunity to inquire into and consider the refusal. The fact that the U.S.A. visa was later granted does not contribute to fixing the issue.

Having considered and reasonably rejected Mr. AlGohar’s explanation of inadvertent omission, any exception that might apply to innocent failures to provide information does not arise in this case.

The application was dismissed.