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.
February
AHMAD HAYTHAM ALYAFI // IMM-4556-19 // 2021 FC 89 // FEBRUARY 1, 2021
Mr. Alyafi was obliged to work at SSRC after the corporation had funded his PhD studies; however, he submits that he was an unwilling employee for the first 7 years he had worked there and had attempted to resign 15 times before eventually succeeding in 1994. While working for the SSRC, Mr. Alyafi produced a technical report on the viability of a chemical plant he helped to develop. In this report, Mr. Alyafi casted doubt on the feasibility of the second stage of the plant’s development. Mr. Alyafi claimed that he was not directly involved in producing chemical weapons and his role at SSRC was purely technical. However, the Officer noted that Mr. Alyafi knowingly contributed to the manufacturing of these weapons. The Officer also observed that Mr. Alyafi’s report did not object to the project itself but merely highlighted a design flaw. Therefore, despite Mr. Alyafi’s attempts to resign from SSRC, the Officer did not regard his involvement in the project as involuntary. In fact, Mr. Alyafi’s role was indispensable to the success of the project and at one point he supervised 90 employees. As a result, Mr. Alyafi’s application for appeal was dismissed on grounds of inadmissibility.
TIAN REN ZHANG // IMM-6722-19 // 2020 FC 927 // SEPTEMBER 24, 2020
Mr. Zhang appealed his rejection and made a request to stay in Canada. In order to conduct an appeal, Mr. Zhang must provide sufficient evidence to ensure no reoffending at the time of the disposition of the appeal. In order to make a stay of removal, Mr. Zhang must provide sufficient evidence supporting the necessary assurance at the time of the disposition of the stay request of not reoffending upon completion of the period of the stay granted. In assessing Mr. Zhang’s appeal and request to stay, it was crucial to understand the degree of rehabilitation and his motivation for the crime. Mr. Zhang’s motivation for the crime was important because it demonstrated evidence of a lack of empathy towards others which suggested that psychological counselling was necessary. Mr. Zhang’s worrying motive to interfere in his girlfriend’s relationships with other males is a matter of serious reflection. The expert psychologist retained by Mr. Zhang argued he was not someone who represented a risk of violence and Mr. Zhang submitted that his behaviour was motivated out of worry that continued interaction of the victim with his girlfriend would lead to the conclusion of his relationship. This demonstrates a concern that Mr. Zhang might resort to a similar situational controlling behaviour towards women with whom he may have a serious relationship with in the future. The assessment of Mr. Zhang’s likelihood of reoffending is based on the credibility of the appellant who must provide sufficient, probative evidence, corroborated when expected and possible, demonstrating a commitment to self-improvement and a rehabilitated. A positive change in lifestyle is a valid indicator of rehabilitation and is reflected in various degrees of a positive H&C assessment, proving a new commitment to family and community care. After careful consideration, the Court is satisfied that Mr. Zhang has no reasonable prospect of demonstrating a sufficient H&C claim. Mr. Zhang is comfortable in both Canada and China and he has numerous family members and relatives on both sides of the ocean, who all appear to be well off and in no manner dependent on Mr. Zhang. His circumstances do not evoke any special compassionate or humanitarian emotion or ground for special relief from deportation. Finding no reasonable conclusion based on the evidence before the Board for any equitable basis to support his claims, the Court rejects Mr. Zhang’s appeal and request for a stay.
ADINA HARMS-BARBOUR // IMM-939-19 // 2021 FC 59 // JANUARY 20, 2021
Ms. Harms-Barbour came to Canada as a permanent resident in 1975 when she was seven years old. Since then, Ms. Harms-Barbour has been convicted of fraud, but she submits that the CBSA Officer’s characterization of her conviction is inaccurate because it fails to account for her ex-husband’s criminal participation in the offence and his motivation to portray her as the sole actor in the crime. According to Ms. Harms-Barbour, ENF 6 enumerates a number of factors including whether others influenced the permanent resident in the commission of the crime and the potential for rehabilitation, however, ENF 6 is not binding on this Court. Instead of providing specific evidence of her ex-husband’s involvement in the mortgage fraud, Ms. Harms-Barbour stated that her ex-husband was initially charged with fraud but became a witness for the Crown, at which time the charges were dropped. Moreover, transcripts from Ms. Harms-Barbour’s trial in which the trial judge found her ex-husband played an integral role in the criminal offence were not before the CBSA Officer or the Minister’s delegate. In evaluating this application, the Minister’s delegate considered the impact of Ms. Harms-Barbour’s crime on the community, including the cost to taxpayers. The Minister’s delegate noted that Ms. Harms-Barbour had fraudulently mortgaged nine homes collectively worth more than two million dollars and that she was believed to have fraudulently mortgaged six other homes, but the victims would not cooperate with the investigation. He also noted that her crimes had negatively impacted eight families, members of her own family, close friends, and two corporations. Furthermore, the Minister’s delegate submitted that Ms. Harms-Barbour’s actions had cost Canadian taxpayers a total of $470,000 and that her actions had a negative impact on the housing investment market. As a result, Ms. Harms-Barbour’s application was dismissed.
March
LOREBETH GARCIA // IMM-5235-19 // 2021 FC 141 // FEBRUARY 11, 2021
Ms. Garcia’s application as a member of the live-in caregiver class was refused because her husband, Mr. Ballesteros, was found criminally inadmissible based on a bar fight in 2006 that took place in the Philippines. The charges from this crime were later withdrawn when the complainant filed an Affidavit of Desistance stating that Mr. Ballesteros had no intention to kill or injure him. Mr. Ballesteros argued that his actions were undertaken out of self-defense to protect himself and his friends from Mr. Humiwat and Mr. Balisi. The Visa Officer noted that this act can be equated with the Canadian crime of assault causing bodily harm. In order to assess whether an act constitutes an offence in Canada it is necessary to consider the elements of the offence and the applicable defences. However, there is no indication in the GCMS Notes that the Visa Officer considered Mr. Ballesteros argument of self-defence or the dismissal of the reconsideration motion as a basis for reaching a conclusion. Further, the Visa Officer failed to assess whether there are reasonable grounds to believe that Mr. Ballesteros committed acts that would constitute an offence in Canada. While the Visa Officer was entitled to consider the evidence leading to the laying of charges, the Officer could not rely on the mere decision to lay charges. It was unreasonable for the Visa Officer discount the Affidavit of Desistance by claiming that it was filed as a term of settlement. This is significant given that the only evidence that Mr. Ballesteros committed assault instead of self-defense came from Mr. Humiwat’s earlier statement, which he effectively withdrew through the Affidavit of Desistance. The Visa Officer’s concern with the Affidavit of Desistance being a common practice in settlement was not put to Ms. Garcia for comment in the procedural fairness letter. It was unfair for the Officer to rely on this speculated information, particularly where there was no evidence of a settlement, and where the Visa Officer’s understanding directly contradicted Mr. Ballesteros’ evidence that the withdrawal arose from Mr. Humiwat’s realization that he was at fault. As a result, this application was allowed.
NANA AKYAA KUSI // IMM-5660-19 // 2021 FC 68 // JANUARY 21, 2021
The Officer was concerned with the genuineness of Ms. Kusi’s marriage. In response, Ms. Kusi argues the IAD gave inadequate consideration to the fact she and Mr. Morrison are the parents of two daughters. While the presence of children does not automatically demonstrate that a marriage is genuine, Ms. Kusi argues that this refusal means that her two children will be deprived of their father’s presence. The IAD recognized that the existence of children from the marriage is strong evidence in favour of Ms. Kusi which is consistent with the precedential “legal constraints” on the decision. However, the assessment of the genuineness does not require an assessment of the best interests of the child, rather it is a factual determination based upon factors between Ms. Kusi and Mr. Morrison. While the best interests of a child can be considered in cases such as appeals, the ability to consider the child’s interests is expressly precluded in appeals for family class sponsorship refusals according to section 63(1), 65, 67(1)(c) of the IRPA. According to the IRPA, if the IAD determines that the applicant is not a member of the family class then it cannot consider humanitarian and compassionate factors in an appeal. Therefore, because the Officer was concerned with the genuineness of Ms. Kusi’s marriage, the Officer could not consider H&C factors because he was not satisfied that Mr. Morrison was a member of the family class. As a result, the application was dismissed.
April
DAVID ALFONZO BLANCO CARRERO // IMM-6652-19 // 2021 FC 188 // MARCH 1, 2021
Mr. Alfonzo’s legal counsel contacted the Canadian Visa Office requesting that they take special measures based on H&C grounds. In this email Mr. Alfonzo declared that his file with Quebec’s immigration office was still pending and that he was taking the necessary steps to comply with the requirements so MIDI could order a CSQ for himself and his daughter. This email eventually became the basis of the IRCC’s determination that Mr. Alfonzo lacked the intention to reside in Quebec. However, Mr. Alfonzo never stated that MIDI had refused to issue a CSQ to his daughter based on financial concerns; nor did he ever declare having formed the intention to reside outside of Quebec, as indicated by the Officer in his decision. Mr. Alfonzo further submits that it was unreasonable for the Officer to make his decision prior to receiving a response from MIDI. On August 20, 2019, the Officer had forwarded an email to MIDI inquiring about Mr. Alfonzo’s status but then rendered his decision on September 3, 2019, prior to having received this information. MIDI’s response was received on September 4, 2019 where they confirmed that Mr. Alfonzo’s daughter was not refused a CSQ due to financial concerns, rather Mr. Alfonzo’s file was cancelled and deleted with no conclusion due to Quebec’s adoption of Bill 9. The Officer breached the rules of procedural fairness by requesting information from MIDI regarding Mr. Alfonzo and then making the decision prior to having received the requested information. Importantly, this information from MIDI contradicted a conclusion made in the Officer’s decision on September 3, 2019. Furthermore, it was unreasonable for the Officer to interpret Mr. Alfonzo’s attempt to resolve this issue as an intention to reside outside of Quebec. Rather, it is clear that Mr. Alfonzo wants to settle in Quebec but would be willing to move elsewhere in Canada as a last resort. The Officer also failed to give proper concern to the H&C considerations. The Province of Quebec did not conclude Mr. Alfonzo failed to meet the selection requirement. Rather, it cancelled and deleted the Mr. Alfonzo’s application due to the erroneous application of Bill 9. Mr. Alfonzo’s application was therefore allowed.
GURMINDER SINGH TOOR // IMM-5410-19 // 2021 FC 228 // MARCH 16, 2021
The applicants, including Mr. Toor, are involved in both an admissibility hearing and a criminal hearing but have not testified in either so far. The applicants are concerned that their testimony before the ID could give rise to incriminating derivative evidence used in their criminal hearing. Furthermore, the applicants would be denied the right not to disclose that evidence to the Crown or the co-accused. Therefore, the applicants have made a request to move their admissibility hearing until after they testify for their criminal hearing. In order to obtain a deportation order against the applicants, the Minister must first establish the elements of inadmissibility under paragraph 37(1)(b) of the IRPA. If the Minister were to adduce insufficient evidence to that effect, the applicants could choose to remain silent. If the applicants were compelled to give testimony at their admissibility hearing, the compelled testimony would be protected pursuant to section 13 of the Charter. They could also request that the criminal trial judge exclude any derivative evidence. Though the ID recognized the applicants’ concern that they might have to testify voluntarily at their admissibility hearing to avoid being found inadmissible, it found that the applicants had not provided any idea of the type of evidence they might have to give in order to avoid being found inadmissible or how giving this evidence could help the Crown at the criminal trial. The ID concluded that the available options for the applicants deemed that there was not a sufficient ground for adjourning the admissibility hearing. Instead, the ID suggested that the applicants request that their admissibility hearing be conducted in private and that the presiding Member prohibit the Minister from communicating to the RCMP or to any other person the transcript of the proceedings while the charges against the applicants were outstanding in the Courts. In addition, the applicants’ admissibility hearing was not scheduled when the applicants brought their motions nor had the Minister completed disclosure of the evidence upon which he intended to rely in the admissibility proceedings. As a result, the ID suggested that the Applicants request other protective measures that could address their concerns and allow the admissibility hearings to proceed in a timely manner. In addition, pursuant to subsection 44(2) of the ID Rules, the applicants can request that their hearings be separated, thereby eliminating the issue of one co-accused having to divulge their defence or strategy to the other. Ultimately, the applicants have not demonstrated that such procedural mechanisms would not address their concerns of fairness and confidentiality regarding the potential use of derivative evidence that could result from their testimony if they chose to testify. To conclude, the applicants have failed to persuade the Courts that in refusing their request for an adjournment of the admissibility hearing, the ID unreasonably placed them in a position that compromises their section 7 and 13 Charter rights to a fair hearing and their right against self-incrimination or breached their rights to procedural fairness. Therefore, the application was dismissed.
YAN WANG // IMM-4448-19 // 2021 FC 226 // MARCH 15, 2021
Ms. Wang was found inadmissible to Canada on grounds of organized criminality. She has been a permanent resident since October 19, 2009. Between June 2010 – June 2012, Ms. Wang was employed by Xun “Sunny” Wang (Sunny) who owned the company New Can Consultants Ltd. Ms. Wang’s responsibilities for New Can included: finding addresses to receive letters from on behalf of clients who had applied through New Can for permanent residence; forwarding such correspondence to New Can; providing New Can clients with transportation to and from the Calgary airport and CIC offices; acquiring telephone numbers for the alleged purpose of being used by New Can employees. Ms. Wang submits that she did not know that her actions were illegal or that New Can was a criminal organization, and simply did what Sunny instructed her to do. As a result, Ms. Wang states that she is not guilty of being a member of a criminal organization. However, according to paragraph 37(1)(a) of the IRPA an individual will still be found inadmissible where there are reasonable grounds to believe they have engaged in activity as part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence. Given the evidence linking Ms. Wang to Sunny’s corporation, including copies of email correspondence, Ms. Wang’s invoices to Sunny, and the statements made by Sunny concerning Ms. Wang’s activities, it was reasonable for the ID to determine that Ms. Wang was aware of several different aspects of New Can’s fraudulent behaviour. The jurisprudence of this Court has been that the degree of mens rea required under paragraph 37(1)(a) is not that the Applicant have actual knowledge of the criminal activities but that she have knowledge of the criminal nature of the organization. Therefore, actual knowledge by Ms. Wang of the criminal nature and activities of New Can was not required. Ms. Wang argued that the Minister did not have any evidence with which to obtain a criminal conviction so they took the easy way of proceeding under the IRPA. Parliament has said in sections 33 and 37(1)(a) of the IRPA that the immigration process, with the much lower fact finding standard for organized criminality of “reasonable grounds to believe”, can be used to remove somebody in lieu of relying on a criminal conviction which would require proof beyond a reasonable doubt. As a result, Ms. Wang’s application was dismissed.
May
PAUL ABOU NASSAR // T-783-20 // 2021 FC 378 // APRIL 29, 2021
Mr. Nassar was about to depart Canada on a flight from Trudeau International Airport without declaring that he was carrying currency with a value of over $10,000, something he was required to do by subsection 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. After he was questioned by a CBSA Officer, Mr. Nassar agreed to pay a $250 penalty immediately. A month later, Mr. Nassar learned that this enforcement action had resulted in the cancellation of his membership as a NEXUS trusted traveller. He requested a review. A Senior Program Advisor with CBSA’s Recourse Directorate concluded that Mr. Nassar had contravened the PCMLTFA and therefore upheld the cancellation of the applicant’s NEXUS membership but reduced the period during which the applicant was ineligible to re-apply for a NEXUS membership from six years to two years. The Senior Program Advisor upheld the cancellation on the basis that Mr. Nassar’s contravention of the PCMLTFA meant that he was not of good character, a requirement for membership in the program. When defining the term “good character” for the purposes of the CBSA’s trusted traveller programs, applicants are assessed as to whether they have made an infraction of Canadian or U.S. laws, in particular, the laws administered by the CBSA, which undermines the assurance that the applicant will comply with all the program requirements. Apart from noting the fact that the applicant contravened the PCMLTFA, there is no explanation for why this action caused the decision maker to lose confidence that Mr. Nassar would comply with all the requirements of the NEXUS program in the future. Moreover, there is a wide range of infractions varying on the level of seriousness including whether the contravention was intentional or the result of an honest mistake, whether it was an isolated incident or part of a pattern of conduct, and whether there was any discernible connection between the funds in question and money laundering or the financing of terrorist activities. The Senior Program Advisor did not dispute that Mr. Nassar’s refusal to declare was an honest mistake on Mr. Nassar’s part, that the funds were legitimate, or that it was an isolated incident. Having weighed these factors, the Senior Program Advisor evidently determined that the Mr. Nassar’s contravention was not serious. Since the Officer’s failed to explain how Mr. Nassar’s actions ruined his good character, the decision to uphold the cancellation of his NEXUS membership lacked transparency, intelligibility and justification. Therefore, the application was allowed with COSTS.
ZANETA STOJKOVA // IMM-4183-19 // 2021 FC 368 // APRIL 27, 2021
The ID unreasonably relied on police occurrence reports to deem Ms. Stojkova inadmissible. There were three classes of evidence that deemed Ms. Stojkova inadmissible. The first class was Ms. Stojkova’s two convictions for theft: one offence committed on October 7, 2015, where she acted alone; and one offence committed on April 4, 2017, where she acted with her sister and her niece. The second class of evidence is Ms. Stojkova’s testimony during which she admitted to having committed two other thefts in February 2017 where she acted alone. The third class of evidence consisted of twelve police occurrence reports. Nine of those reports pertained to charges that were withdrawn by the Crown in January 2018. Two of the reports were for charges dated back to December 2014 and October 2015, that had been laid and withdrawn. A final report was for a charge laid against Ms. Stojkova’s sister, her sister’s husband and a third person for theft committed in May 2017, but Ms. Stojkova does not appear to have been involved in the commission of that offence. Ms. Stojkova argues that her one conviction and two admissions of stealing on her own combined with a single conviction for stealing with others are insufficient to find that she has engaged in a “pattern” of organized criminality. As a result, the ID’s ultimate finding of inadmissibility under paragraph 37(1)(a) of the IRPA turned on the acceptance of the facts contained in five police occurrence reports pertaining to withdrawn charges and in a sixth police occurrence report for an incident in which Ms. Stojkova was not involved. Ms. Stojkova submits that the only evidence in the reports connecting her to the events described in the police occurrence reports relating to the withdrawn charges was the surveillance footage of the offences. The reports simply state that Ms. Stojkova was identified on “video surveillance”. The lack of clarity regarding the video surveillance impeded the ID’s ability to accurately rely on the police occurrence reports since that surveillance was the only evidence connecting Ms. Stojkova to the incidents described in the police occurrence reports. In the absence of these reports, the ID’s conclusion was based on three thefts where Ms. Stojkova acted alone combined with a single conviction for stealing with others. Based on this evidence, including Ms. Stojkova’s testimony denying any involvement in the “group” incidents, the ID could not reasonably conclude that the Respondent had met its onus of demonstrating that there were reasonable grounds to believe that Ms. Stojkova was a member of an organization that engaged in a pattern of criminal activity. The ID’s decision does not meet the required threshold of reasonableness and thus the application was allowed.
June
ROHOMAN HUSSAN FOISAL // IMM-3349-20 // 2021 FC 404 // MAY 6, 2021
Mr. Foisal was declared inadmissible due to his membership in the Bangladesh National Party (BNP). Mr. Foisal’s inadmissibility was unreasonable because it equates the required intent of terrorism with “knowledge of probable consequences” regarding the effects of hartals on the general population. As a result, this decision has substituted a lower degree of fault for the specific intent requirement that characterizes the notion of terrorism. Although Mr. Foisal’s inadmissibility decision required evidence of specific intent to cause death or serious injury, the ID’s decision did not reflect that. Instead, the ID argued equivalence between the use of violence and the intent to cause death or serious injury, which was unreasonable. Furthermore, the reasonableness of the ID’s decision is undermined by a second error: a lack of adequate justification for imputing intent to the BNP’s leadership. The decision argues that violence is enough to infer the organization’s intent; however, the fact that lethal violence takes place during protests organized by a political party does not necessarily lead to a finding that the political party has engaged in terrorism. Such a finding would need to be based on an analysis of several factors, including the circumstances in which violent acts resulting in death or serious injury were committed, the internal structure of the organization, the degree of control exercised by the organization’s leadership over its members, and the leaders’ knowledge of the violent acts and public denunciation or approval of those acts. Ultimately, the ID does not have the necessary evidence to draw this conclusion. Given the size and nature of the BNP, it is difficult to assume that the actions of some of its members during widespread strikes are attributable to the party leadership without sufficient evidence. This case lacks evidence of the link between isolated acts and the intention of the BNP. As a result, Mr. Foisal’s application was allowed.
OSEP GUZELIAN // IMM-5888-19 // 2021 FC 460 // MAY 18, 2021
Mr. Guzelian joined the Lebanese Army in December 1978 and was shortly after assigned to the intelligence section as a vehicle mechanic and chauffeur. In this occupation, Mr. Guzelian transported detained persons to the Ministry of Defence building where they were interrogated by members of the Security Service. Mr. Guzelian contends that he was aware that he was transporting people to these interrogations which involved torture. From this, the Officer draws a conclusion that Mr. Guzelian had consciously made a significant contribution to the actions of the security personnel that constituted complicity in torture or other crimes against humanity. The Officer came to this conclusion under the assumption that Mr. Guzelian served as an intelligence officer for the Ministry of Defense from 1978 to 1995. However, there is no evidence in the record that Mr. Guzelian was employed as an intelligence officer by the Ministry of Defence. Furthermore, the Officer heavily exaggerated Mr. Guzelian’s career. Mr. Guzelian entered the service as a private soldier and retired as a Sergeant after twenty years. For most of his military career, Mr. Guzelian worked as a mechanic and a driver in the vehicle section. Therefore, the Officer’s conclusion that Mr. Guzelian was more than a low-ranking member of the military was unreasonable. Moreover, the Officer’s reliance on the description of Mr. Guzelian as a “secret agent” by the RPD was misplaced. Therefore, the application was allowed.
AKIDO THOMAS [RESPONDENT] // IMM-3002-21 // 2021 FC 456 // MAY 16, 2021
There is significant evidence that Mr. Thomas would pose a danger to the public if he breached his terms of release. Mr. Thomas conceded that he is a danger to the public at the detention hearing, which was also agreed upon by the Member. This conclusion is supported by the record, including the nature of the numerous offences committed by Mr. Thomas which included kidnapping, beating the victim, and unlawfully possessing a handgun, all for gang-related purposes. Moreover, there is no evidence that the danger Mr. Thomas poses to the public has diminished. The Member reasoned that this danger has lessened because Mr. Thomas has committed no additional offences since 2017, and because Mr. Thomas has testified that he has changed and would not reoffend if released. However, Mr. Thomas’ lack of additional offences may be due to the fact he has been either incarcerated or in detention since 2015, so he did not have an opportunity to reoffend. Furthermore, Mr. Thomas has incurred numerous institutional infractions while he was in federal custody, several of which took place after he completed an anger management course. With respect to the terms of release, Mr. Thomas pointed to evidence that Ms. Thomas believes she will be able to control her son in her home. However, it is unlikely that Ms. Thomas will be able to prevent her son from engaging in criminal behaviour, especially since she was completely unaware of his criminal history before this. Thus, the terms of release will not prevent Mr. Thomas from posing a danger to the public. The evidence of continuing danger to the public is non-speculative and clear, as is the harm to the integrity of the immigration system under the IRPA. The second harm to the public interest in the integrity of the immigration system concerns whether Mr. Thomas will fail to appear for removal. The evidence on this issue still contains significant concerns as Mr. Thomas’s convictions show obvious disregard for the law, and a lengthy history of failing to appear, failing to comply, and breaching a weapons possession prohibition order. Although the Member did not expressly refer to these offences, she found that he would not appear for removal without conditions on his release. Weighing the harms, it is clear that Mr. Thomas poses a great harm to the public interest. Therefore, the Minister’s application for a stay was granted.
July/August
CAJETAN UCHE ENYE // IMM-3493-20 // 2021 FC 481 // MAY 21, 2021
Ms. Enye went to the Douglas border crossing out-of-status, as a result of the professional incompetence of her immigration consultant. Ms. Enye’s immigration consultant made several errors including: failing to apply for the extension or restoration of her temporary resident status on time, misleading Ms. Enye respecting filing applications and other work performed on her behalf, failing to take steps to apply for a TRP from within Canada, failing to prepare a TRP application for Ms. Enye to submit at the port of entry, indirectly billing Ms. Enye for work that was not done, failing to properly research and prepare for immigration issues related to COVID-19, failing to maintain adequate records to provide proof of applications filed, and failing to properly determine and maintain awareness of who the client is when representing a work permit Applicant while also representing the employer. In accordance with the Federal Court protocol dealing with allegations of incompetence made against immigration consultants and legal advisors, Ms. Enye’s present counsel wrote to her previous consultant advising him of Ms. Enye’s allegations. The consultant later requested and received a copy of the Application Record, but made no further submissions in the matter. Ms. Enye also made a formal complaint to the Immigration Consultants of Canada Regulatory Council. It is clear that Ms. Enye would have reacquired her status if not for the professional incompetence of her previous immigration consultant. This consultant failed to prepare or file an application for a temporary resident visa and took Ms. Enye to the border without any supporting documentation. The consultant is negligent because not only did the individual place Ms. Enye at risk for the issuance of an Exclusion Order, they also did not seek to counter Ms. Enye’s allegations against them in the proceeding. As a result, it is clear that the immigration consultant is at fault for Ms. Enye’s out of status appearance at the Douglas border. Therefore, the application was allowed.
MELIKA HAGHIGHAT // IMM-6325-20 // 2021 FC 598 // JUNE 11, 2021
Ms. Haghighat placed her trust in an immigration consultant and was deceived. Ms. Haghighat’s immigration consultant applied on her behalf through the online portal, and denied Ms. Haghighat access to the site. As a result, Ms. Haghighat did not receive her procedural fairness letter. Despite these circumstances, Ms. Haghighat is not absolved from the consequences of her misrepresentation. Furthermore, the Officer was not required to respond to Ms. Haghighat via her personal email address, and thus did not breach any duty of procedural fairness. The application was therefore dismissed.
SUKHJIT KAUR SOMAL // IMM-2304-20 // 2021 FC 630 // JUNE 17, 2021
While completing Form IMM-1295, Ms. Somal checked “yes” in response to the question 2(b): “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?”. Ms. Somal responded truthfully that she had been refused a visa in 2016 from the United States. Her application was refused because her financial documents were not sufficient to support her application. Ms. Somal applied a second time, but was refused for inadvertently failing to pay the processing fee. She then submitted a third application and checked “yes” to question 2(b) of the Form IMM-1295. This time, she noted that she had been refused two work permit applications in Canada in 2019. However, she failed to mention her refused American visa from 2016. Ms. Somal received a procedural fairness letter which her immigration consultant responded to by stating the failure to disclose her American refusal was an unintentional clerical error. The consultant further noted that Ms. Somal had declared this refusal in her application in June 2019, but the fact was inadvertently deleted from her second application. The Officer evaluating Ms. Somal’s application failed to mention Ms. Somal’s explanation for failing to disclose the American refusal, nor does the Officer mention the immigration consultant’s letter. The Officer should have mentioned the previous disclosure and explained why the misrepresentation was other than innocent. In fact, Ms. Somal’s previous disclosure of her American refusal demonstrates that there was no attempt to misrepresent Canadian authorities. If the immigration consultant, on behalf of Ms. Somal, was attempting to mislead the Officer, surely there would be no mention of the application which references the American refusal. As a result, Ms. Somal’s application was allowed.
SALIM MUHAMMED ALI // IMM-7145-19 // 2021 FC 579 // JUNE 9, 2021
Mr. Ali was under the impression that the two US visa waiver refusals he had received were not the type of refused visa that the relevant question was referencing in his application form. According to the Officer, because Mr. Ali is being represented by experienced counsel who understands the requirements of this application, he should have understood the questions and implication of his declarations. Mr. Ali submits that the US visa waiver refusals turned on the same facts in Mr. Ali’s US criminal and immigration history, as did the 2011 removal that he fully disclosed. Mr. Ali further emphasizes that his original June 2018 application included significant detail surrounding the history of his US visa waiver refusals. Mr. Ali submits that the Officer was in possession of this information, and thus had enough materials to conduct a detailed inquiry into whether Mr. Ali was admissible. Mr. Ali argues that it is therefore unclear what administrative procedures were missed as a result of his failure to disclose the US visa waiver refusals. The Officer’s Decision provides no explanation of what those procedures would be or any analysis of that question. Furthermore, the Officer was aware of the reasons for Mr. Ali’s US waiver refusals through his statements in his June 2018 application. Therefore, the Officer was required to provide some explanation of how the omission of refusals would have resulted in procedures not being followed in the processing of Mr. Ali’s application. Since the Officer failed to do so, the application was allowed.
September
GALDINO SANCHEZ AGUIRRE // IMM-1048-20 // 2021 FC 678 // JUNE 28, 2021
Mr. Aguirre submitted an eTA application on June 27, 2019, and no decision had been issued as of the hearing, nearly two years later, on June 28, 2021. eTAs have an average processing time of 72 hours, and there was no evidence that the Applicant was responsible for the delay nor that it was to be expected given the Mr. Aguirre’s criminal history. On the contrary, Mr. Aguirre regularly asked for updates regarding the status of his application. It was noted that the Respondent did not provide a satisfactory justification for the delay in eTA processing time; while the Respondent claimed that the Covid-19 Pandemic affected the operations of government departments, the eTA application was submitted months before the onset of the pandemic. Moreover, while the Respondent argued that Canadian immigration officials must thoroughly review applicants for entry, especially when an applicant has a criminal history, it was ruled that the two year waiting period by Mr. Aguirre outweighed the inconvenience to the Respondent. Thus, the ensuing judgement required the Respondent to communicate a determination on the merits of Mr. Aguirre’s eTA application within 60 days of receiving his supplemental documents. Mr. Aguirre’s application was subsequently allowed.
BONGKYUN PARK // IMM-6669-20 // 2021 FC 786 // July 23, 2021
In his eTA application and Visitor Record, Mr. Park had failed to disclose criminality, of drunk driving and family violence, in Korea. However, there are certain criminal record checks that, by Korean law, are not to be shared with foreign governments for the purposes of immigration. Moreover, Korea has a system whereby certain criminality is erased with the passage of time. However, under IRPA, regardless of whether Korea considers a past criminal offence to have lapsed, disclosure to Canadian immigration officials is required. Under review, it was found that Mr. Park’s argument of innocent misrepresentation was based not upon the lapse of his offences but upon his alleged understanding that those offenses were not criminal. Specifically, as Mr. Park’s criminal record check from the Korean government at the time of his eTA application did not reference the offences in question and showed that he did not have a criminal record, it was noted that he believed that said offences were not criminal. Mr. Park’s application was subsequently accepted on the basis that his alleged honest belief that the offences were not criminal in nature was reasonable.
ANGELA DOS SANTOS ALVES // IMM-1591-20 // 2021 FC 716 // JULY 7, 2021
In her Canadian immigration application, when asked if she had “been refused a visa or permit, denied entry or ordered to leave Canada or any other nation,” Ms. Alves disclosed the refusal for her 2018 U.S. student visa application. Ms. Alves then received a procedural fairness letter alleging that she had provided an incomplete disclosure of her immigration history. Ms. Alves stated that she had worked as an au pair in the U.S. and in December of 2015 she flew to visit her previous host family. However, she was denied entry for “wrongly travel[ling] there on a visitor visa instead of a work/au pair visa.” Ms. Alves explained that she did not disclose this incident in her application because she believed the 2018 incident to be more temporally relevant and thought she would have the chance to elaborate in an interview setting. While the immigration Officer rejected Ms. Alves’ application on the grounds of misrepresentation, when reviewed this was found to lack justification, transparency, and intelligibility; it was emphasized that in her application Ms. Alves both affirmed and referenced her adverse immigration status in the U.S. Additionally, she disclosed her most recent refusal in the U.S. which is connected to the 2015 incident in question. As it was concluded that the evidence did not justify the Officer’s finding of misrepresentation, Ms. Alves’ application was subsequently allowed.
November
YUNYING HE // IMM-2246-20 // 2021 FC 1027 // OCTOBER 4, 2021
Yunying He twice filed for, and was denied, a work permit and temporary resident visa to come to Canada as a child caregiver. The Officer stated that Ms. He’s applications were refused on the grounds that she had not satisfied the officer that she would leave Canada when required and that she had not demonstrated the required skills for her caregiving job. With respect to Ms. He’s required skills, the Officer argued that she did not sufficiently demonstrate her ability to perform her job duties as a caregiver. Principally, the Court stated that the Officer failed to explain their decision to override the employer’s determination that Ms. He was qualified for the role. Ms. He not only had work experience in childcare settings, but also education in childcare and housekeeping experience. Moreover, Ms. He fulfils and exceeds the LMIA requirements for a position as a childcare provider: she has completed secondary school and is able to communicate in verbal and written English. In short, the Court ruled that the Officer failed to provide a justification for why the Applicant’s education and experience were deemed insufficient. In regard to Ms. He’s overstay risk, the Officer similarly failed to provide any justification for their conclusion that Ms. He would not leave Canada when required. As this is the third time that Ms. He filed an application and her previous two were denied per Officers’ flawed logic, the Court ruled that she was to be awarded $1,5000 in costs.
IBHADE NYEROVWO AGBHONKESE // IMM-1203-20 // 2021 FC 1065 // OCTOBER 13, 2021
Ibhade Nyerhovwo Aghbonkese’s application was denied on the basis that she did not establish her family connection to Canadian citizen and resident Anthony Aghbonkese. Ms. Aghbonkese proceeded to submit a reconsideration request on this same day, and the Officer subsequently responded that they were not permitted to consider the evidence submitted with said reconsideration request. With regard to her family connection, the Court addressed whether the Applicant’s evidence reasonably established her qualifying family relationship with Anthony, her husband’s step-brother. Ms. Aghbonkese submitted a biographical page of Anthony’s Canadian passport in addition to a letter stating that Godwin Aghbonkese, her husband, is Anthony’s younger half-brother. The Court ruled that the Officer failed to explain their conclusion that the Applicant “did not provide sufficient documentary evidence” to prove their family connection. The Court additionally stated that the Officer incorrectly concluded that the Guidelines consider only official documents, thereby ruling the letter acceptable evidence of family relationship. With respect to the Officer’s refusal to consider new evidence, the Court ruled that as a matter of fairness and common sense, the Officer should reconsider the application when a request is submitted within days of the original refusal and the new evidence confirms a material fact in the issue. As the Court ruled that the case of Ms. Aghbonkese meets this criteria, the Applicant’s application was returned for re-determination based on the new evidence included in the reconsideration request.
December
DEORANIE PERSAUD ET. AL. // IMM-1361-20 // 2021 FC 1252 // NOVEMBER 17, 2021
Deoranie Persaud’s mother, residing in Guyana, applied to visit her boyfriend, father of Ms. Persaud and a Canadian permanent resident. However, the Officer denied her TRV application, claiming that the Applicant was prepared to abandon her job, friends, and family in Guyana in favour of her Canadian resident boyfriend. However, the Officer did not explain the reasoning behind her conclusion that the Applicant would overstay her visa. The Court concluded that stating an Applicant’s travel history, current employment, or purpose of visit as evidence to such a conclusion without explaining why those circumstances lead to said conclusion is not sufficient. The Court thus permitted the Applicant to file a new application to be judged by a different Officer.
ZABIR JAMAL // IMM-7990-21 // NOVEMBER 19, 2021
Zabir Jamal was deemed inadmissible to Canada 16 years ago and was subsequently issued a removal order one year later. However, no action was taken to effect his removal and the resulting 15 year delay was not the result of his own actions. Nearly 20 years have passed since Mr. Jamal committed the offences that led to the removal order, and he argues there is clear evidence of his rehabilitation and remorse. He now owns a home, is gainfully employed, and is in a ten-year relationship with his fiancé. Nonetheless, an Officer recently concluded that the circumstances of Mr. Jamal’s case do not outweigh the statutory duty to enforce his removal order. The Respondent submitted that as Mr. Jamal no longer poses any risk or danger, the public interest in his removal is modest; he went on to grant Mr. Jamal’s stay, concluding that the balance of convenience lies in Mr. Jamal’s favour.
RH // IMM-4802-20 // 2021 FC 1274 // NOVEMBER 22, 2021
The Applicant in question was previously issued a removal order, an event that occurred before their record was suspended. Consequently, in seeking to return to Canada, the Applicant sought a declaration that he is no longer required to seek an ARC. However, the Court ruled that a record suspension does not render the removal order invalid, it rather minimises the future consequences. Hence, although the Court denied the Applicant the declaration that an ARC was not required, they granted them the ability to file further materials before a different decision maker.
