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.
January
TUFOR HOLDINGS LTD. v. ESDC // IMM-3771-20 // 2021 FC 1350 // DECEMBER 3, 2021
Tufor Holdings Ltd. applied for a LMIA for a food service supervisor position at its restaurant; the application was subsequently denied by an Immigration Officer who contended the applicant failed to meet the minimum advertising requirements outlined in the Program Regulations. In brief, the Officer viewed said advertising requirements stated on the ESDC website as mandatory, despite the fact that they do not appear as factors in the Regulations. The Court thus found the Officer’s evaluation of the application based upon the aforementioned non-required targeting and duration advertisement expectations to be unreasonable. The Court subsequently allowed the application and concluded that the Respondent should consider clarifying that Program Requirements are guidance and not law.
DAVIDAE SKELTON // IMM-3197-20 // 2021 FC 1373 // DECEMBER 8, 2021
Davidae Skelton was charged with six counts of robbery, two counts of possession of a weapon for dangerous purpose, and six counts of disguise with intent. While Mr. Skelton pled guilty to these charges, he submitted that the Member erred in accepting the police reports without analysing them. The credibility and reliability of the police reports were not independently assessed, nor was it clear whether the Member relied upon the criminal proceedings or the police reports for evidence in denial of the application. The court thus concluded that opacity of Members’ decisions regarding applicants’ criminality with respect to use of evidence renders their decisions unreasonable. Mr. Skelton’s application was therefore allowed.
JAAMAL HASSAN ALI // IMM-833-20 // 2021 FC 1419 // DECEMBER 15, 2021
Jaamal Hassan Ali was accused of breaking and entering into a dwelling in Minnesota. The Member concluded that the accused committed mischief , an indictable offence, upon entering the building by damaging prosperity. The Member came to said conclusion by reviewing witness statements in the police record, as there was a lack of trial on the merits of the action. Hence, there is no other evidence apart from the Applicant’s testimony and the police records regarding the Applicant’s conviction. The Court thus concluded that there are at least reasonable grounds to believe that the witness statement is demonstrative of the facts underlying the Applicant’s conviction. The Court subsequently ruled that the Member did not err by relying on the aforementioned witness statements to establish criminality and proceeded to dismiss Mr. Ali’s application.
IRFAN SAFDAR // IMM-73-21 // 2022 FC 189 // FEBRUARY 14, 2022
Officer rejected the LMIA application on the basis of failing to meet English language requirements. Applicant is applying for an LMIA, for which the requirements include verbal and written English for the position, without specifying the level of proficiency. Mr. Safdar’s application shows various proof of a certain level of proficiency: IELTS test result, lived 3 years in Ireland (including working in a pizza restaurant). He also explained that the employment offer is equivalent to the work he has done for the last 8 years, for the same company. The officer failed to adequately defend his view as to why Mr. Safdar did not meet the criteria, the justification does not address the applicant’s proof nor the employment offer in question.
MAIA KRIVYKH // IMM-2230-21 // 2022 FC 124 // FEBRUARY 2, 2022
A decision of reconsideration is a separate decision from the original one, and therefore can only be challenged by a separate application for judicial review. The new evidence provided to the Officer for the reconsideration were not included in the original application, rendering them inadmissible in a judicial review case about the prior decision.
MARISOL VERIDIANO BOBADILLA // IMM-2547-20 // 2022 FC 161 // FEBRUARY 8, 2022
Applicant is a Filipino citizen, living in Canada since 2012. She had arrived to work, on a valid permit, and after changing jobs, she sought the help of an immigration and employment agency to renew her visa. Her last extension request was denied and she has remained in Canada without status since 2014. Mrs. Verdiano and 3 other migrants workers filed a class action lawsuit against the agency claiming fraud and failure to properly assist them. The Court believes that the Officer did not take this factor into consideration hard enough, and presented unreasonable expectations for what the applicant should have done. This mischaracterization of the negative effects of the agency go against the precedent of humanitarian and compassionate reasons.
SPECIAL FAQ BY IMMIGRATION LAWYERS TO IRCC
“Dear Immigration Representatives…” – The Questions and Answers
a. Question: In the context that a visitor to Canada has a Visitor Record that is valid for one year, from January 1st to December 31st, and the visitor leaves Canada on November 1st, returning December 1st. Is the visitor admitted with status that expires six months from the date they entered Canada (ie. six months from December 1st) OR until December 31st?
Answer: “Visitor Records (VR) are not valid for re-entry and therefore as soon as a foreign national leaves Canada, the VR is invalidated. An exception to this is if the foreign national visits the U.S. or St. Pierre and Miquelon, and returns to Canada before the VR has expired. Should the foreign national return to Canada, if there is no stamp or handwritten date in the foreign national’s passport, their authorized period of stay is 6 months from the date of entry, if no other date was indicated by the Border Service Officer.”
b. Question: Is it expected that the family members of a Provincial Nominee will reside in the province of nomination?
Answer: “It is expected that the provincial nominee and his accompanying family members will reside in the province of nomination. Although the Act and the Regulations do not specify in regard to the accompanying family members, it may raise concerns to the processing officers if they are established in a different province. Also, note that a provincial nominee’s accompanying spouse or common-law partner can obtain an open work permit. This work permit is linked to the validity of the principal applicant’s work permit and implies the family intends to reside in the same province. In addition, the genuineness of the spousal or common-law relationship will be assessed as well. If the spouse or common-law partner is working/residing in another province, an officer may question whether this is a relationship of convenience.”
c. Question: Pertaining to revenue gained on social media through ads, for example, a Youtube channel, what constitutes ‘work’ under r. 2 of the IRPR? Additionally, Does it matter if the revenue is generated outside of Canada or in?
Answer: “In order to provide a response to your questions and to determine if earning advertising revenue is considered work in this specific scenario, we kindly ask you to provide more information about the context.
Please consider the following questions:
1. What is the purpose of the applicant’s visit to Canada? What are they planning to do while in Canada? What activities will they be doing?
2 How long will they be staying in Canada for?
3. What type of application are they planning on applying for?
4. Will the applicant be entering some sort of contract with a Canadian entity?
Answers to these questions will give us a better idea of the applicant’s background and will allow us to determine if the purpose of their visit to Canada is considered work.”
ANH THOA QUAN // IMM-223-21 // 2022 FC 576 // APRIL 22, 2022
Ms. Quan’s submissions to the court were to express her disagreement with the Visa Officer’s decision and assessment of the evidence she provided in her Visa application. It was determined that Visa officers have a large degree of discretion when determining the “intent” of a Visa applicant to reside within a certain province. And Visa officers are allowed to take into account all the information at their disposal. The court determined that The Officer had erred when negatively inferring that Anh Thoa Quan did not have sufficient intentions to reside in the province of Quebec as her son had studied in British Columbia. It was decided that there was little connection between Ms. Quan’s son choosing to study outside of Quebec and her intent on living in Quebec.
The Officer also relied on factors such as: Ms. Quan’s limited knowledge and experience of the restaurant business and future business plans, her limited awareness in the food and safety licensing requirements to establish a restaurant in Quebec, her limited proficiency in French and English, her single visit to Quebec in July 2016. However, the court still determined that it was unreasonable that the Officer had stated that Ms. Quan had no proven intent for permanent residence in Quebec.
Upon this ruling, it is not in the court’s responsibility to reweigh the evidence on record. Therefore, the Visa Officer is required to provide, prior to interview, more specifically about his/her concerns pertaining to Ms. Quan’s intent to reside in Quebec. This arises from a discrete regulatory requirement that raises the duty of procedural fairness. Ms. Quan, as part of the Quebec Investor Class, specifically, the intention to reside in Quebec, should be made aware and given the full opportunity to respond to Officers’ decisions.
JING LI // IMM-2132-21 // 2022 FC 734 // MAY 17 2022
Ms. Li stated that due to her husband’s previous criminal convictions and bankruptcy filing, he would be unable to sponsor her for permanent residence through the spousal sponsorship process. The Officer concluded that Ms. Li’s spouse could consider applying for the record suspension in order to shorten the period of ineligibility. The Officer relied on an irrelevant factor in making their assessment on the nature of hardship facing Ms. Li and her husband and family in Canada. Seeking a record suspension in these circumstances would do nothing to shorten ineligibility for sponsorship as Ms. Li’s husband could not seek a record suspension or be eligible to sponsor his spouse until at least five years had elapsed from April 2021 when his probation period for his most recent offence ended. The length of separation is a significant part of the hardship assessment in this case. The availability of a record suspension may have affected the ultimate weight afforded to the impact of Ms. Li’s separation from her husband and extended family in Canada, and the officer’s consideration of the irrelevant factor of “sufficiently central or significant to render the decision unreasonable” resulted in Ms. Li’s application being accepted.
DANIEL RAY LARORCHE//IMM-1821 2022 FC 1017//JULY 12, 2022
Mr. Laroche was sentenced 18 days in jail, 12 months probation and a restitution order of $1149.63 on February 12, 2002 for the conviction of three counts of possession of a stolen credit card. Because Mr. Laroche had been law abiding ever since, on November 12 2019, the Parole Board of Canada ordered a Record Suspension for the 2002 convictions. The Criminal Records Act stipulates that a record suspension “removes any disqualification or obligation to which the Applicant is, by reason of conviction, subject under any Act of Parliament.” The record suspension does not render the removal order invalid and the requirement for an ARC still stands. The court determined it still necessary for the Officer to consider the record suspension in their assessment of Mr. Laroche. The Record Suspension is a critical piece of information that appears to not have been taken into consideration and when critical information is not considered or analyzed, it opens the possibilities for inference and because of this, Mr. Laroche’s application was allowed by the court.
SOCIETY OF COMPOSERS, AUTHORS AND MUSIC PUBLISHERS OF CANADA V. ENTERTAINMENT SOFTWARE ASSOCIATION 2022 SCC 30 DOCKET 39418 • July 15, 2022
In Vavilov, the Court decided that there is only one standard of reasonableness. The Court rejected the idea that context could change the standard or degree of scrutiny by the Reviewing Court. While context does not affect the standard of review, it is important in determining whether the decision itself is reasonable (Vavilov, at para. 67; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 59). To the extent that the reasons of the Federal Court of Appeal imply otherwise, they are incorrect (2020 FCA 100, [2021] 1 F.C.R. 374).
The Court continued to note that, in concluding a reasonableness review, it is not helpful to review the factors set out by the court. Additional considerations are extraneous and defeat the Court’s intention to clarify the standard of review because Vavilov was created to give a clear, logical, and comprehensive framework. As the Court confirmed in Vavilov, the words of a statute must be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’”.
A reasonable decision is “one that is based on an internally coherent and rational chain of analysis” that operates within the bounds set by the context (Vavilov, at para. 85; see also paras. 293 and 296, per Abella and Karakatsanis JJ.). The reviewing court asks “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility” (Vavilov, at para. 99). This approach requires the Reviewing court to start with how the decision maker arrived at their interpretation and to determine whether that interpretation was defensible in light of the facts and the law (Vavilov, at para. 86, per the majority, and para. 205, per Abella and Karakatsanis JJ., both quoting Dunsmuir, at para. 47).
Statutory interpretation questions may be evaluated on a reasonableness standard (Vavilov, at para. 115). Where this standard applies, “the reviewing court does not undertake a de novo analysis of the question or ‘ask itself what the correct decision would have been’” (Vavilov, at para. 116, quoting Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 50). Rather, “the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached” (Vavilov, at para. 116).
The Court does this in accordance with the current legislative interpretation standard, as previously stated. The role of administrative decision makers is to interpret the contested provision in a way that is consistent with the language, context, and purpose while applying their unique understanding of the statutory scheme at issue, even though they are not required to use a formalistic interpretation. (Vavilov, at paras. 120-21).
A reasonable review always starts out with a deferential attitude. It takes judicial restraint as a starting point and acknowledges the unique function of administrative decision-makers. (Vavilov, at para. 75). It follows that a decision must be afforded a fair and generous construction. The party challenging the decision must satisfy the court “that any shortcomings or flaws relied on . . . are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
ZEINAB VAHDATI ET AL // IMM-92-22 2022 FC 1083 • July 25, 2022
Ms. Vahdati sought to pursue a 2-year Master of Administrative Science Specialization: Computer Security and Forensic Administration at Fairleigh Dickinson University of British Columbia. The Visa Officer refused her application based on her family ties in Canada and in her country of residence, and on the purpose of her visit. The Visa Officer notes that the client is married or has dependents or states to have close family ties in their home country, but not sufficiently established. The finding of lack of establishment is based on the fact that Ms. Vahdati would be accompanied by her spouse during her studies in Canada. The Visa Officer determined this served to weaken her ties to Iran and her motivation to return at the end of her studies because her immediate family would be residing with her in Canada.
The Visa Officer referred to the Ms. Vahdati’s parents and six siblings, as well as her Spouse’s parents and five siblings, remain in Iran according to the Family Information forms. Both the spouse and Ms. Vahdati lists no relatives in Canada. The Visa Officer does not list: the evidence that the Applicant has been employed as a software developer since 2014 and the record contains letter from her employer stating that if she graduates from her proposed courses of studies in Canada, she will be employed as a network security and intrusion detection manager with increased salary and benefits; and in her letter provided in support of her study permit application. Ms. Vahdati also continueds to explain that she accompanied her spouse to Malaysia, where he completed his Ph.D, and while there, she completed a Masters of Information Security, graduating in 2020. The costs were paid by her spouse’s father, and he will also pay for the costs of Ms. Vahdati’s proposed studies in Canada, during which she will be accompanied by her spouse. Finally, Ms. Vahdati states that her parents are building her and her spouse a home in Iran, which will be ready when they return from Canada, and they have promised to care for their families to reciprocate the support they received.
The Court decided that it may be relevant to consider that the Spouse intends to accompany the Ms. Vahdati to Canada and, even if it is reasonable to infer from this that the Applicant’s family ties to Iran may be weakened, the problem in this case is that the Visa Officer ended their analysis there. The Visa Officer did not weigh this against: (1) the fact that all of the other members of the Applicant’s and her Spouse’s families will remain in Iran; (2) the fact that the Applicants have no family members in Canada; or (3) the other evidence in the record relevant to establishment such as the letter from the Applicant’s employer. The Court agrees with the Applicant that in this case the Visa Officer seems to have simply applied a broad generalization in reaching their finding as to a lack of establishment.
The Court also did not agree with the submission of the Respondent that the Visa Officer’s generic statement that “[…] the client is married or has dependents or states to have close family ties in their home country, but is not sufficiently established” serves to demonstrate that the Visa Officer considered and weighed the Applicant’s actual family ties or other evidence speaking to establishment. The Respondent asserts that the fact that the spouse intends to give up his employment in Iran to accompany Ms. Vahdati to Canada, this goes against Ms. Vahdati’s statements that she and her husband intend to return to Iran once she completes her degree. The Court determined, the Visa Officer’s finding that Ms. Vahdati is not sufficiently
established in Iran and, therefore, that they were not satisfied that she would not return there upon the completion of her studies, is not justified, transparent or intelligible. It is therefore unreasonable.
The Court also agreed with the Applicants that the Visa Officer’s findings as to Ms.Vahdati’s prior and intended studies are contradictory and unintelligible. On one hand, the Officer finds that Ms.Vahdati’s study plan is not reasonable given that her previous studies were “in an unrelated field”. The Visa Officer then states that her proposed course of study is a Masters in Computer Security and Forensic Administration, but that she previously obtained a Masters in Information Technology Information Security and is currently employed as a software developer. Given her education and work experience in the same field, the Visa Officer states that they
were not satisfied that the Applicant “[…] would not have already achieved the benefits of the program”. Therefore, this was not a reasonable progression of her studies. On its face, this is unintelligible. The programs cannot be unrelated and, at the same time, redundant. The Court continues that Ms.Vahdati explained in her letter supporting her study permit application why the two Master’s programs differed, why she wished to pursue the program in Canada, and why this would benefit her career with her current employer – who has offered her a promotion upon the completion of that program. The Visa Officer was not required to accept this evidence. However, as it appears to contradict the Visa Officer’s finding that the Applicant had already achieved the benefits of the Canadian program, the Officer erred in failing to address it. Ms.Vahdati’s application was allowed.
SUKHWINDER SINGH// IMM-6465-19 2022 FC 1144 // July 29, 2022
Mr. Singh is a 35-year old citizen of India who lives in the village of Khanna. He is a self-employed farmer since 2009. He works on his family farm that he co-owns with his father. His father, grandfather, and great-grandfather all worked on the farm. Mr. Singh has been married since 2009. He has a son who was born in 2010. Mr. Singh’s wife and child are to remain in India. Mr. Singh has no relatives in Canada. The Officer concluded that Mr. Singh would not have an incentive to leave Canada, given the disparity in earning potential between Canada and India.
The Court stated that the Officer appears to not have considered the relative purchasing power of that income in each country in order to ascertain or even approximate, the actual practical difference the income would make to Mr. Singh and his family. Generally, individuals applying for temporary work visas in Canada are doing so because of the higher earning potential in Canada. A financial incentive to work in Canada, cannot be the determinative factor for denying an application.
The Court continues, As is the case with virtually all Applicants for temporary work permits, there is a financial incentive to work in Canada. This fact cannot be held against an applicant, as to do so would result in the rejection of the vast majority of such applications. There must be objective reasons to reasonably question the motivation of an applicant. Just to cite a few examples, past immigration attempts, overstaying in other countries, a criminal past, may provide sufficient basis to doubt that an applicant will leave Canada by the end of the authorized period.
The Officer found that the financial documentation from Mr. Singh did not satisfy them, that Mr. Singh was sufficiently established in India. The only support for this, is once again financial. The Officer relied upon both “financial documentation” and “little financial incentive to return to India” to find that Mr. Singh would not leave Canada at the end of their authorized period of stay. There is no elaboration by the Officer of the basis for those statements. Having made the statements, the Officer then states their conclusion that they are not satisfied the Applicant is a genuine worker who will leave Canada at the end of his temporary authorized stay. The Officer did not mention Mr. Singh’s stated goal of learning new farming techniques in Canada to enhance production and growth in his home country and his indication that he would go back to India to “resume cultivation with learnt high techniques and methods”.
Whether Mr. Singh will return to India is a relevant consideration as the Officer specifically mentioned that they felt the Applicant was not established in India. The Officer failed to mention Mr. Singh’s long family history of farming in India over multiple generations, the fact that Mr. Singh’s wife and young son, siblings and parents were all in India and that Mr. Singh had no relatives in Canada.
The Court determined that while an Officer does not have to write extensive reasons to support
their conclusion, they should grapple with the evidence sufficiently to show that they considered the factors put forward by Mr. Singh . The Officer’s decision did not take into account the evidence before them or the jurisprudence of this Court. Mr. Singh’s application was allowed
SUNNY MAKKAR // IMM-5594-20 2022 FC 1147 // July 29, 2022
- Can a foreign national inadmissible for misrepresentation pursuant to subsection 40(1) of the IRPA apply, during the period set out in paragraph 40(2)(a) of the IRPA, for permanent resident status on H&C grounds under subsection 25(1) of the IRPA, despite the prohibition on applying for permanent resident status set out in subsection 40(3) of the IRPA?
- Is the decision about an application sponsoring for permanent residence presented by a person inadmissible under subsection 40(1) of the Act, during the inadmissibility period set out in paragraph 40(2)(a), where there is a request to seek a remedy concerning the effect of subsection 40(3) in accordance with section 25 of the Act (in view of H&C considerations), subject to a right of appeal before the Immigration Appeal Division given subsections 63(1) and 64(3), and section 65 of the Act?
ADAM THOMAS // IMM-1670-21 2022 FCC 1169 // August 5, 2022
Following a Respondent’s decision regarding Mr. Thomas’ application, Mr. Thomas proposed a “proper” interpretation of subsection 42.1(3). This interpretation means that the Respondent is required to consider danger but is also at liberty to consider other factors as well. The court cited the Ragupathy v. M.C.I. (2006) case, 350 N.R. 137 at paragraph 17; the Federal Court of Appeal held that “danger to the public” means a “present or future danger to the public”. Considering this jurisprudential guideline, the Respondent’s analysis of “national interest” was unreasonable because it failed to consider the Applicant’s submissions on “danger”, in particular the evidence of his criminal rehabilitation. The word “danger” is part of the text of subsection 42.1(3). The court referred to paragraph 122 of Vavilov, supra: “It can happen that an administrative decision maker, in interpreting a statutory provision, fails entirely to consider a pertinent aspect of its text, context or purpose …” all the words of a statutory provision are to be considered. Mr. Thomas seeked Ministerial relief pursuant to subsection 42.1(1) and presented substantial submissions showing how he is not a present or future threat or danger to Canadians or national security of Canada. The submissions included evidence of his earlier temporary residence permit, his Authorization to Return to Canada, and his criminal rehabilitation. The Respondent required consideration of the evidence and an explanation for any rejection of that evidence. Mr. Thomas’ application was allowed.
MOUTAZ RADIYEH ET. AL. // IMM-2336-20 2022 FC 1234 // August 30, 2022
After the interview with Mr. Radiyeh and Ms. Farah, the Officer noted particular concerns but did not inform the Applicants, despite their expressed confusion. The concerns regarded war crimes and crimes against humanity in Syria, Libya, and Egypt, along with medical personnel used to monitor and treat prisoners. By not making these concerns apparent in the interview, the Officer had denied the Applicants’ opportunity to respond and explain, hence breaching his/her duty of procedural fairness. The Officer also hurt common sense by not considering the Applicants’ repeated affirmations of not understanding the Officer’s concerns. The Court determined that the Applicants’ application was allowed.
SHIDEH SEYEDSALEHI // IMM-9369-21 2022 FC 1250 // September 1, 2022
The Officer rejected Shideh Seyedsalahi’s application for a study permit in Canada for various negative factors but did not provide specific reasons.
First, the Officer was not satisfied with the Applicant’s leaving Canada at the end of her study because she had no family ties in Malaysia, her country of residence. Yet, the Officer did not mention the Applicant’s family ties in Iran. The Officer also deemed the Applicant’s being “single, mobile, and without dependent” as risk factors but did not explain why they would be negative. Similarly, the Officer dismissed the Applicant’s choice to switch from her current Master’s program to a College-level program in Canada as illogical without any reasoning insight. For the cost of study, the Officer was not convinced by the Applicant’s motivational letter after comparing the program in Canada with comparable programs in the region. Still, the Officer did not provide any information about regional programs and ignored multiple reasons listed by the Applicant. Next, the Officer claimed that the Applicant did not have sufficient establishment levels because she was not employed at the time. The Court deemed the sole focus on the Applicant’s employment status unfair because it neglected the Applicant’s land property in Iran and employment history; the Officer also did not provide any definition for “sufficient” to evaluate. The Officer also saw the Applicant’s temporary status in Malaysia as a negative factor. However, the Court ruled that this is a positive factor showing that the Applicant complied with the country of residence’s immigration laws. The Officer did not explain why the Applicant could not be trusted. Last, the Officer noted the Applicant’s lack of historical bank statements and having in her account a large deposit of funds without evidence of origin as unsatisfactory. However, the Account Balance Statement, whose authenticity was not dismissed by the Officer, did not confirm whether the amount in the Applicant’s account was accumulated gradually or appeared at once. The Officer also ignored the Affidavit by her parents agreeing to pay her entire tuition and living expenses and that estimated tuition had been paid as a deposit.
The Court determined that Shideh Seyedsalahi’s application was allowed.
OMINA SOLTANINEJAD // IMM-1343-22 2022 FC 1343 // September 29, 2022
The Officer turned down Romina Soltaninejad’s application for a study permit because they did not find her motivation convincing.
The Officer believed she has similar and much more affordable high school programs in Iran. Yet, this reasoning failed to address the Applicant’s core concern of getting a Canadian high school diploma to heighten her acceptance chance into Canadian universities. While the Officer could have mentioned that having a Canadian high school diploma is not required of students accepted to excellent Canadian universities, the Officer decided to dismiss the Applicant’s purpose instead. The Officer also did not consider that the Applicant’s parents had already paid her full tuition and rent for three months.
The Court determined that Romina Soltaninejad’s application was allowed.
ABEL MESFIN GEBREMEDHIN // IMM-8251-21 2022 FC 1386 // October 7, 2022
The Court ruled that the IAD’s insistence on asking the applicants to elaborate on their feelings and emotions with each other disregarded cultural context and forced a Western marriage paradigm on the participants. The Court also pointed out that in Subsection 4(1) of the IRPR, applicants and their spouses are not required to “be in a romantic relationship” but only to have a genuine relationship that is not solely for immigration. The IAD’s imposition has failed to consider the applicant’s cultural context as integral to decision-making.
Hence, the Court determined that Abel Mesfin Gebremdhin’s application was allowed.
HEINRICH FRIESEN LETKEMAN // IMM-2053-21 2022 FC 1396 // October 11, 2022
The Officer refused the applicant’s application for both H&C and TRP (a means through which an individual who is otherwise inadmissible can remain in or enter Canada if they can satisfy the Officer that their presence in Canada is justified). The reason stated by the Officer for the H&C refusal is that the applicant could not demonstrate how they will be “personally and directly affected” by the condition of cartel violence in their home country, Mexico. The Officer also added that “crime and violence” are “general conditions” that affect everyone in Mexico, thus making the application unsatisfactory. Yet, the Court ruled that these reasons neglected the applicant’s evidence, precisely the applicant’s status as Mennonite. The applicant had submitted evidence to show that Mennonites are a group especially vulnerable to cartel violence and poverty. Since the Officer’s reasoning for H&C’s refusal is unreasonable, it also renders their refusal of the applicant’s TRP request unreasonable.
The Court determined that Heinrich Friesen Letkeman’s application was allowed.
PARGAT SINGH BRAR // IMM-3879-21 2022 FC 1522 // November 8, 2022
The Officer alleged Pargat Singh Brar of misrepresentation but could not provide further details. Specifically, The Officer noted that Mr. Brar did not report a U.S. visitor visa refusal without the date of the refusal, how the Officer had learned about the refusal, and how the refusal was communicated to Mr. Brar. The High Commission of Canada then sent Mr. Brar a Procedural Fairness letter, requesting him to clarify his failure to disclose visa refusal from other countries. Yet, this request did not specify which refusals needed an explanation. Mr. Brar has never received any official refusal to his application, nor been aware of such a refusal, and still does not have any information about it. He believed the former travel agent did not give him the refusal letter, but the agent never admitted to not doing so.
The Court ruled that the Officer could not give sufficient information about the alleged misrepresentation, and thus, Pargat Singh Brar’s application was allowed.
KEIVAN ZEINALI // IMM-8221-21 2022 FC 1539 // November 10, 2022
The Officer rejected Keivan Zeinali’s application on the ground that the annual salary increase after his intended program would be 3,100 CAD, much lower than the program’s tuition for two years – 90,000 CAD. The Officer got to this number through a free market conversion rate, which the Applicant accepted. The Applicant also failed to provide any persuasive and in-depth reasoning for why the intended program will be unique in its desirability or necessity: he only gave vague comments on how MBA programs in neighboring countries do not have valuable courses and on how the intended program will provide him with connections and possible internships. Nor did he give any evidence that indicates a regular resource of future income during the intended study time.
Thus, the Court determined that Keivan Zeinali’s application to appeal was dismissed.
ALBERT CONTEH // IMM-8306-21 2022 FC 1593 // November 21, 2022
The Officer rejected Albert Conteh’s application due to the absence of evidence regarding the Applicant’s financial, economic, and employment conditions. Yet, there are two incoherencies in the Officer’s reasoning. One, the Applicant has explicitly stated that he was poor. Second, the Applicant is promised to be fully sponsored by a family friend who would allow him to live in their space rent-free and has already paid for his tuition. The Court ruled that the Officer “giving less weight” to the family friend’s tuition payment and insistence on the Applicant’s lack of financial proof are unreasonable. If the Officer had been concerned about a pull factor in the Applicant’s profile, the Officer should have voiced it outright. However, the issue was not noted by the Officer.
Thus, the Court determined that Albert Conteh’s application was allowed.
DONGHAE KIM // IMM-1993-21 2022 FC 1589 // November 21, 2022
Mr. Kim alleged the Representative of the incompetence of counsel, resulting in a breach of procedural fairness. To establish this allegation, the Applicant must prove that (1) acts of omission lead to incompetence, (2) if it had not been for the misconduct, the result would have been different, and (3) the Representative was informed of the allegation and given a chance to respond. The Court was satisfied with (1) because Mr.Kim would have applied to the Minister for a finding rehabilitation finding without the acts of omission. The Court was also satisfied with (3) because the Representative was informed and had the chance to respond. However, for (2), the Court pointed out that there was no guarantee in what the Minister would do once they were given the same evidence as those given to the Court by the Applicant. The Applicant had also applied to the Minister last year but heard no response since, while a positive response was necessary to affirm the second requirement. Additionally, the Applicant argued that the Officer did not inform him of his inadmissibility for criminality, and thus, he was not given a chance to correct this. Yet, the Court ruled that since the Applicant was well aware of his own conviction, the Officer was not required to do so.
The Court determined that Donghae Kim’s application to appeal was dismissed.
OLATUNJI SAMUEL AFOLAYAN // IMM-2521-21 2022 FC 1625 // November 25, 2022
The Applicant hired a Travel Agent to apply for his Work Permit, but the Agent applied for a TRV. The Agent also used fraudulent bank statements, leading to the application’s rejection. The Applicant wished to claim the rule of procedural fairness for his case. However, this rule could only be applied if the Applicant seeked help from a lawyer or an immigration consultant. Hence, since the Applicant hired a Travel Agent, this rule cannot be applied.
The Court determined that the Applicant’s application was dismissed.
IRFAN URAJ // IMM-8469-21 2022 FC 1635 // November 28, 2022
The Applicant tried to leave the UK in 2015 using a false passport and was convicted of false identity documents with improper intention (the conviction was equivalent to the Canadian offense of 10-year imprisonment). The Applicant then applied for Canada’s refugee claim in 2018. This refugee claim was deemed inadmissible by the Minister on the grounds of serious criminality. On the one hand, the Applicant argued that his case is analogous to that in Uppal v M.C.I., 2006 FC 338, in which the individual was not inadmissible should they use the false document to come to Canada for a refugee claim. On the other hand, the Minister, and eventually the ID, perceived that the Applicant’s case is more analogous to that in Bellevue v PSEP, 2020 FC 560, in which the individual was convicted for using a false passport in another country (the US) could not be defended by section 133 because he did not submit a refugee claim at the time of the offense. The Minister pointed out that the Applicant, similarly, did not submit for a refugee claim in the UK.
The Court determined that the Applicant’s application to appeal was dismissed.
AREZOO DADRAS NIA // IMM-1305-22 2022 FC 1648 // November 29, 2022
The Officer rejected Arezoo Dadras Nia’s application for a study permit after deeming that her intended program was at a lower level than her previous degree, hence illogical in her career trajectory. Yet, this reasoning showed the Officer’s inattention to the Applicant’s detailed explanation and evidence. First, the Applicant’s previous degree focused on scientific and academic energy research, while her intended program would emphasize management and practical skills. These are two different skill sets and cannot be compared in terms of level. Second, the affidavit written by the Applicant’s colleagues further emphasizes this distinction, adding weight to her desire for the intended program. Third, the Applicant’s employer also provided a “Leave Request and Job Offer” letter for the “Manager of Energy project” position after her study. With her current position as Research Consultant, this letter is evidence of her need for the intended program to advance her career. Thus, the Court pointed out that the Officer had “unreasonably assumed the role of a career counselor” for deciding that the intended studies were not necessary for her to advance in her brother’s company.
The Court determined that Arezoo Dadras Nia’s application was allowed.
SATNAM SINGH // IMM-1094-22 2022 FC 1645 // November 29, 2022
The Officer rejected Satnam Singh’s application for two reasons. First, the Officer was not satisfied that the Applicant would leave Canada at the end of his stay due to family ties in Canada and UAE (the Applicant’s current country of residence). However, the Applicant had submitted evidence of not having family ties in Canada and of his immediate family (his wife and young child) living in India (the Applicant’s home country). It was thus unfair for the Officer to penalize the Applicant’s sacrifice to work in a foreign country (thus being away from his family) to better his financial situation. Second, the Officer was not satisfied that the Applicant had enough skills for the job he would take in Canada. The Officer referred to the different weather conditions between UAE and Canada and thus deemed the Applicant’s truck driving skills insufficient. Yet, this decision overlooked the three reference letters from the Applicant’s three employers on his good performance in the job. Thus, the Court saw the Office’s consideration as irrelevant.
The Court determined that Satnam Singh’s application was allowed.
KULWINDER KAUR // IMM-7651-21 2022 FC 1690 // December 8, 2022
The Applicant accidentally submitted another document instead of an education document. She received a notification of this mistake on September 29th, 2021. Hence, on October 6th, she tried to correct her error by sending in her education documents through the IRCC webform chat. Yet, the Officer only based their decision on the incomplete application submitted on September 29th. They should have notified her that she needed to resubmit the complete application on October 6th because they did not accept documents added through the web form. Instead, they only sent out a rejection on October 14th. The Court considered the Officer’s decision as lacking transparency and justification. First, the Applicant made an honest mistake and had intended to fix it before the deadline. Second, the Officer did not explain why the Applicant’s additional documents were not accepted. Neither did they allow her to resubmit the complete application correctly.
Hence, the Court determined that the Applicant’s application was allowed.
FATEMEH SAHRAEI NAMIN // IMM-3501-22 2022 FC 1706 // December 12, 2022
The Officer turned down Fatemeh Sahraei Namin’s application for a study permit for two reasons. First, the Applicant’s motivation to take an MBA in Canada was not logical since she already had a master’s degree. Second, the Officer was concerned that the Applicant’s ties in Iran could not guarantee her return, especially when she also has family ties in Canada.
The court found that the officer’s decision to refuse the application lacked sufficient reasoning. Regarding motivation, the Applicant stated in her application that she sought practical skills to start her own business, adding to the academic knowledge she acquired from her previous degree. She can get these skills through the Canadian MBA program. The Officer did not state why they deemed this motivation unreasonable. Regarding family ties, all of her immediate family members will continue to live in in Iran during her study in Canada, and she has no family ties in Canada. Another evidence affirming her return is her plan to continue working with her current employer after studying abroad. The Officer, however, has ignored this proof entirely.
Hence, the Court determined that the Applicant’s application was allowed.
