The following are the court cases that have changed Canadian Immigration Law. These short summaries are prepared for the information of litigants in immigration matters coming before the Canadian Federal Court and the Federal Court of Appeal.
2009
February
CALVERN XAVIER RODRIGUES V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 2, 2009
The court reiterated that in Noman v. M.C.I. [2002] an Applicant is not required to perform all of the main duties in a NOC job category, they did require that an Applicant perform a few – meaning more than one. The Officer’s job is to determine the pith and substance of the work performed by a Canadian immigration Applicant. The tangential performance of one or more duties does not convert the job functions from one NOC to another. Having completed 3 of the 4 main duties meets the requirement of having performed “a substantial number of the main duties”. The Applicant’s Canadian immigration application was dismissed as the immigration Canada Applicant did not succeed in fulfilling a substantial number of the main duties considered as such within his profession.
SHOU MIN YAO ET AL. V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 3, 2009
The definition of “dependent child” set out in section 2 of the IRP Regulations includes objective criteria but allows for the Officer to use his or her discretion. In this case the Officer had an issue with the eligibility of the school the Applicant’s child was attending. The Applicant was never given the opportunity to respond to the Officer’s concerns prior to a final determination. The guidelines issued in the Manual by CIC with regard to dependent children are not compulsory but they are helpful for establishing whether or not the Applicant’s child meets the definition of “dependent child”.
The Applicant’s child was studying at a school that offers its program on a flexible 3 semester basis instead of the traditional 2 semester basis. There was therefore some ambiguity as to whether the definition of full-time studies adopted by this school applies if a student is only enrolled in 2 of the 3 semesters because required courses may only be offered in 2 semesters. There was also some concern as to whether the classes the child was enrolled in were “courses of academic, professional or vocational training”. The Officer should have provided the Applicant with an opportunity to disabuse the Officer of her concerns due to the rules of procedural fairness. In addition the Officer did not explain why she rejected the Applicant’s child as a dependent child, as held in Via Rail Canada v. Lemonde [2001 C.A.] the reasons must be sufficient to enable the parties to assess possible grounds for judicial review. The Canadian immigration application was consequently granted.
MONA PERSAUD V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 26, 2009
The Application was refused because the Canadian immigration Applicant was only awarded 5 points for her post-secondary education rather than the 15 points she claimed for her Institute of Canadian Bankers’ Business Program for Bankers. The Applicant never submitted documentation specifying the number of hours of instruction completed. It is therefore difficult to ascertain whether this program constitutes a one-year post-secondary educational credential contributing to the total of 13 years of full-time studies. “Full-time” is defined as at least 15 hours of instruction per week during the academic year. “Full-time equivalent”, with respect to part-time studies, means “the period that would have been required to complete those studies on a fulltime basis”. The Applicant did not support her statements with any reference to documentary evidence. The Officer does not have the duty to go beyond the record in his attempt to assess whether the immigration Canada Applicant has met the statutory requirements of a skilled worker. The Officer’s decision was therefore reasonable and the Canada immigration application was resultantly dismissed.
SHAIKH AKHTAR HUSSAIN V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 26, 2009
The Applicant applied under the federal skilled worker category and was awarded 68 points through the Canadian immigration point system, exceeding the passing mark of 67 points. The Officer undertook a negative substituted evaluation and failed to take into account the Canadian immigration Applicant’s settlement funds. The Officer is presumed to have considered all of the evidence, the failure to refer to the funds in her decision raises the suspicion that she did not consider them. This is a reviewable error. The case was also denied on the basis that the Applicant, in accordance with Pakistan law, has two wives. His application to become a Canadian permanent resident showed that he intended to be accompanied by one wife if granted a Canadian permanent resident card. The Officer referred to his “peculiar/polygamist family situation”, which is an irrelevant consideration in relation to the application before her and therefore constitutes a reviewable error. The permanent resident Canada application was subsequently granted.
VIKAS V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 26, 2009
At the interview the Canadian immigration Applicant provided information about his employers, responsibilities and hours worked. At the interview the Officer did not raise any concerns, and the Applicant understood the silence to mean that she was satisfied that he had worked sufficient hours. The Officer concluded that the Applicant did not satisfy the minimum number of months of work experience (48 months) to receive the maximum number of points through the Canadian immigration point system. The Applicant was 1.6 months short of work experience because his experience had been earned working 30 hours per week. The Applicant was not informed of the result of the Officer’s calculation. While the Officer is not required to give an Applicant a running score at each step of the interview, in this specific case the failure of the Officer to tell the Applicant of the negative result of her calculations resulted in a breach of the duty of procedural fairness. The Applicant’s immigration Canada application was consequently granted.
March
INDERPAL SINGH HANSRA ET AL. V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MARCH 4, 2009
The Applicant was convicted of three counts of sexual assault. While on probation, the Applicant travelled to India where he met and subsequently marries a woman. The Canadian immigration Applicant claims that it was only upon returning to Canada that he became aware that he was unable to sponsor his wife because five years had not elapsed since his sentence was completed. The Applicant filed an H&C application seeking to obtain an exemption from the five-year ban. As part of the H&C application, a psychological report was filed stating that the Applicant was suffering severe emotional hardship as a result of being separated from his wife. The H&C application was denied for being unjustified in overcoming serious criminal convictions. In his decision the Officer stated both the positive and negative factors in this H&C. The Officer also articulated the reasons for the decision sufficiently. While the Officer concluded that the Applicants claims were valid, he based his decision upon the fact that Applicant undertook marriage without regard for his criminal convictions, and his ignorance of the law is not something which should be condoned to avoid a waiting period. The Applicant’s immigration to Canada application was therefore dismissed.
MARAWAN PHARAON V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MARCH 18, 2009
The Canadian immigration Applicant was requested by the visa office in London to provide police certificates with the necessary translations within 60 days. The request was received by the Applicant’s representative one week after the date indicated on the letter. The Applicant’s representative requested an extension for providing the documentation. The extension was refused by the visa office only 14 days prior to the expiry of the deadline. The refusal was issued on the 61st day following the date on the letter, as the Applicant had 60 days from receipt of the letter to provide his documents; his deadline had not yet expired. The mistake of fact was the origin of an unreasonable conclusion which cannot fall within the range of acceptable outcomes from the facts as elaborated in Dunsmuir. Immigration Canada application was therefore granted.
May
BHARATKUMAR KANTIBHAI PATEL V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MAY 8, 2009
The Applicant was claiming points for his work experience as a “Quality Control Chemist”, according to the Canadian immigration point system. One of the reference letters he provided did not set out what his duties were. The other two reference letters he provided described his duties. In his letter of refusal the Officer concluded that the Canadian immigration Applicant’s duties “did not match the lead statement or main duties of a Chemist”. The court concluded that the duties listed in the reference letters did reflect the NOC’s lead statement and corresponded with many of the specified duties of a chemist. The Officer’s assessment of the application was therefore unreasonable and the immigration Canada application was therefore granted.
KATTIA CASTRO VILLALTA V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MAY 20, 2009
The Canadian immigration Applicant and her sponsoring spouse appeared to have been experiencing some discord in their relationship; this was due in part to disagreements over the availability of certain documents to be presented at the interview. The Applicant appeared at the interview without his spouse and requested that the interview be postponed. The Officer, suspicious that the sponsoring spouse was not present, made inquiries and concluded that the sponsorship had “dissolved”. A refusal of the sponsorship immigration to Canada application was issued almost immediately thereafter. The court concluded that the Applicant had been denied procedural fairness. Nothing in the record suggests that the Officer gave any consideration to the request for a postponement, and reasonable requests for a postponement should not, generally be refused, in this case the request was reasonable. The Canada immigration application was therefore granted.
SAQIB HAMEED ET AL. V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MAY 21, 2009
The Canadian immigration Applicant failed to provide proof that he had attended classes on a full-time or full-time equivalent basis. The Regulations do not specifically require proof of attendance. Even if the Officer was concerned that the Applicant had not proved how many hours of classes he was supposed to have attended, his evidence did demonstrate that he had 14 years of education according to the Higher Education Commission. Even if he had failed to show that his studies met the definition of full-time, he had proven that he obtained a degree based on a full-time equivalent of 14 years of study. Therefore he must be awarded 20 points in the education category according to the Canadian immigration point system; his immigration Canada application was thus granted.
