January
NEDA ZAMANI // IMM-4732-21 2023 FC 19 // January 5, 2023
In 2017, ASP – an international stone supplier in Iran – decided to expand its business in North America and assigned Neda Zamani – its managing director – to relocate to Canada. In October 2017, the company established a subsidiary Artin in Canada and appointed the Applicant and her husband as Artin’s shareholders. In 2018, the Applicant was granted an Intra-Company Transferee (ICT) work permit to initiate the start-up of the company. The approved ICT signaled that there was a qualifying relationship between ASP as the employer and the Applicant as the foreign worker, and Artin was the Canadian branch of ASP.
The Applicant then applied for Permanent Resident under the CEC based on her experience working for Artin. The Officer rejected this application. Their reason was that because she owned Artin, her work was self-employment, and thus not qualified as work experience for permanent residence.
The Officer, however, failed to consider key information in the Agreement between ASP and the Applicant, most importantly that Artin will cease to exist as a separate entity from ASP in September 2025. This information explained the Applicant’s ownership of Artin. The Court believed that this negligence rendered the Officer’s rejection unreasonable.
The Court ruled that the Applicant’s application is allowed.
IRFAN SOHAIB AHMED ET. AL. // IMM-9377-21 2023 FC 50 // January12, 2023
The Officer rejected the Applicants’ application based on their temporary visa status in UAE. This was believed to reduce their chance of going back to UAE at the end of their stay, especially when they have family ties in Canada. Hence, the Court believed that this rejection is reasonable.
The Court determined that the Applicants’ application was dismissed.
SARA NAJMI ET. AL. // IMM-3625-22 2023 FC 132 // January 27, 2023
Sara Najmi, a 12-year-old Iranian, applied for a study permit to attend a junior high school in Edmonton, Alberta for one term. Her mother applied for a temporary resident visa to look after her child until she can find a reliable person to take the Applicant’s custodian. The Officer rejected Najmi’s application for three reasons.
First, the Officer stated that the purpose of the visit is not reasonable considering the Applicant’s socioeconomic situation. Yet, the Officer did not explain why they had come to such a conclusion. Moreover, the Applicant’s parents had already paid her tuition and living expenses. Her mother, the person who will be accompanying her, also has 32,000 CAD in her bank account. Hence, the Court deemed the Officer’s first reason hard to justify.
Second, the Officer claimed that the Applicant’s lack of travel history is insufficient for their approval. However, the Court deemed that a lack of travel history is a neutral factor, and the Officer was wrong to treat it as a negative factor through their consideration.
Third, the Officer considered the Applicant’s motivation to study in Canada unreasonable, since there is a comparative course in Iran with much lower tuition. Yet, the Officer did not provide any evidence for this statement.
Therefore, the Court determined that the Applicant’s application is allowed.
February
SIMRANPREET SINGH // IMM-6734-21 2023 FC 215 // February 14, 2023
The Officer rejected Simranpreet Singh’s work permit application for two reasons.
First, the Officer was not satisfied that the Applicant would leave Canada at the end of his stay due to his immigration status in New Zealand, the Applicant’s current country of residence. The Officer argued that a temporary status reduced the Applicant’s tie to New Zealand. Yet, the Officer failed to explain how this indicated that the Applicant would stay in Canada beyond his authorization.
Second, the Officer believed the Applicant did not have enough experience for his intended position, Logistics Supervisor. However, the Applicant had provided multiple pieces of evidence showing otherwise. He had held a supervisor position for over three years in New Zealand, augmented by educational documents, work experience letters, payslips, proof of salary, deposits, tax returns, and a reference letter from his former employer. Thus, the Officer’s belief was not justified.
Based on the above reasoning, the Court determined that Simranpreet Singh’s application was allowed.
SAUNDRA EBANKS // IMM-2471-20 2023 FC 240 // February 17, 2023
Without a legitimate reason, the Applicant did not report for removal nor show up at Canada Border Services Agency for nearly a decade. These actions indicate that she had disregarded Canadian immigration law and immigration authorities.
Thus, the Court ruled that her application was dismissed.
SHWAN JAFFAR NADER // IMM-9426-21 2023 FC 265 // February 24, 2023
The Applicant had two criminal charges on his record and applied for refugee status in Canada after fleeing the UK. The Refugee Appeal Division (RAD) stated that the Applicant’s earlier weapon and cannabis charges increased the seriousness of a later charge for handling stolen goods. Yet, the RAD failed to show how the two charges were connected, specifically how having an unlicensed taser at home made his possession of a stolen motorbike more violent. The only motivation that should have motivated RAD’s decision was that the Applicant, having two charges, showed a pattern of criminality. Yet, this was not the RAD’s explanation. Thus, the Court deemed the RAD’s connection unreasonable.
The Court determined that Shwan Jaffar Nader’s application was allowed.
HELENA DE CASSIA LIMA // IMM-1850-21 2023 FC 336 // March14, 2023
The Officer rejected the Applicant’s sponsored visa for two reasons. First, the Officer was not convinced that the Applicant and her Sponsor are genuinely married, or, in other words, are not simply married to acquire immigration. The Applicant and her Sponsor provided conflicting information about their relationship, such as where and how they met.
Second, the Officer did not receive enough evidence to show that the Applicant and the Sponsor cohabit, specifically from Toronto Housing Authority. The Sponsor claimed that the Authority did not allow her to add the Applicant to her file. Yet, the Officer found official forms which the Sponsor could have used to report the Applicant’s cohabitation and provided documents. The Sponsor did not fill out such forms. The Sponsor then sent the Officer evidence as screenshots of three individuals declining to provide her with a written form to recognize the Applicant’s cohabitation. Nevertheless, this kind of evidence is not accepted. Hence, considering all the legitimate evidence that they had, the Court found that the Officer’s rejection was reasonable.
The Court determined that Helena De Cassia Lima’s application was dismissed.
ABOLFAZL BORJI // IMM-5143-22 2023 FC 339 // March 14, 2023
The Officer rejected Abolfazl Borji’s application for a study permit for multiple reasons.
First, the Officer claimed that because the Applicant is single, mobile, not well established and does not have dependents, he will be less likely to leave Canada after his study. The Court deemed this argument unreasonable, especially for the “not well established” qualifications. The Applicant has worked as an Inspector under an Iranian bank for 16 years and has a mother and siblings to take care of, guaranteeing his return after studying.
Second, the Officer believed that the Applicant’s purpose of visit was not justified. However, the Court pointed out that the Applicant’s current degree in accounting and his bank work was not equivalent to an MBA, the degree he plans to pursue in Canada. Therefore, the Applicant’s purpose is valid since he is trying to enhance his qualifications.
Third, the Officer argued that the Applicant did not explain how he would maintain his position in his company after his study. However, the Court noted that the Applicant in fact did give a clear explanation – that he would maintain the position through a two-year leave of absence from his company.
Fourth, the Officer was not convinced that the Applicant would receive a promotion after his time in Canada. The Court believed that this was an unreasonably high qualification, since there is no way the Applicant can demonstrate that except for his employer’s written assurance.
Thus, the Court disagreed with the Officer’s conclusion that the Applicant’s progression of studies was illogical. Based on the above reasoning, the Court determined that Abolfazl Borji’s application was allowed.
DAJANA BABIC // IMM-84-22 2023 FC 379 // March 20, 2023
The Applicant is married to a Canadian permanent resident. She applied for a temporary resident visa for 2 years and her application was dismissed. The Applicant argued that the dismissal was unreasonable, because the Officer did not ask her if she would stay in Canada illegally. The Officer only asked if she would depart Canada at the end of her authorized stay. Hence, she believed that as long as she applies for a permanent residence during the two years, her stay in Canada will not be illegal.
However, the Court claimed that the Officer’s choice of question was correct. The Court noted that the Officer was alert of the Applicant’s “dual intent”. Specifically, the Officer was aware that being married, Ms. Babic may wish to stay in Canada, and thus, asked her why there had been no sponsorship application. Yet, Ms. Babic did not provide a reasonable explanation and thus did not confirm the “dual intent”. This left the Officer without sufficient evidence for their assessment,
Hence, given the reasoning, the Court ruled that the Officer’s decision was reasonable and that the Applicant’s application was dismissed.
ANIS ABU GOSH // IMM-6584-21 2023 FC 390 // March 21, 2023
The Applicant was seeking Humanitarian & Compassionate (H&C) grounds for his criminal inadmissibility. He committed a serious crime 11 years ago but has shown remorse and kept a record clean ever since. However, the Officer believed that remorse and a clean record were expected of every Canadian resident and not enough to counter the negative impact of the crime. The Court argued that the Officer had misunderstood the nature of H&C and the evidence that the Applicant presented. Specifically, the Applicant was not trying to use remorse and a clean record as a positive factor to outweigh his crime. Rather, he was trying to prove to the Officer that he did not have a criminal pattern but had just committed a single incident out of the norm.
Hence, the Court determined that Anis Abu Gosh’s application was allowed.
JAYANT ARVIND MEWADA // IMM-4627-22 2023 FC 381 // March 21, 2023
The Officer rejected the Applicant’s application for a study permit due to two concerns regarding the Applicant’s grade and educational goals.
First, the Officer regarded the Applicant’s low marks in Engineering as a challenge to his potential studies in Truck Technician in Canada. However, the Court pointed out that the Officer did not clarify how the Applicant’s low grade in one field would predict a lower performance in a different field. Moreover, the Applicant’s practical grades are higher than his theory grade, showing that he is more apt at applied learning. Truck Technician, the field he intended to study in Canada, is more practical than theoretical.
Second, and more importantly, the Officer considered the Applicant’s educational goals inconsistent because he had studied Engineering but then worked in an unrelated field. Yet, the Court found this reason to be lacking details and further explanations. To boost, the Applicant’s decision is valid, considering his strength with applied learning to theoretical learning.
Hence, the Court determined that Jayant Arvind Mewada’s application was allowed.
NASEEM TAYABI // IMM-3206-22 2023 FC 453 // MARCH 30, 2023
The Officer rejected the Applicant’s application on a basis of misrepresentation finding due to the Applicant’s failure to disclose her prior visa revocation as a relevant fact. Since the Applicant knew that her U.S. visa had been revoked and failed to disclose that information, she could not invoke the “innocent mistake” exception.
The Applicant’s notification of revocation was sent and addressed both to her husband and herself, and it referred to the visas in the plural, therefore, the Officer deduced the Applicant must have been aware that her visa was revoked. The Court found that the “innocent mistake” exception does not apply since innocent mistakes cannot be grounded in willful blindness or deliberate non-engagement.
Hence, the Court ruled that the Officer’s decision was reasonable and that the Applicant’s application was dismissed.
NAGENDIRAM SHANTHAKUMAR // IMM-3369-22 2023 FC 511 // APRIL 12, 2023
The Applicant applied for permanent residence based on Humanitarian and Compassionate grounds (H & C). The Officer rejected the application due to the Applicant’s two offenses of driving while impaired (DWI), joined with an offense of sexual interference, claiming the Applicant has a complete disregard of the law and the safety of Canadians.
The Court felt the Officer’s assessment was made without weighing the fact of the offense against the whole of the evidence before him. First, offenses for driving while impaired were 15 years apart, and the Applicant had acknowledged his past misdeeds and showed remorse for his actions. Second, the Officer failed to consider that the Applicant has complied with all of the reporting conditions, showing little or no danger to the public. Third, the Applicant remained employed during his period of imprisonment, allowing him to purchase a home with his wife, and support and raise his children. These should have indicated a positive appreciation of establishment which was missing in the Officer’s weighing of the evidence.
Thus, the court found the Officer’s assessment and decision unreasonable, and ordered the Applicant’s application to be assessed by a different officer.
CLAUDIA LUCIA HORN ZELMANOVITZ // IMM-983-22 2023 FC 597 // April 25, 2023
The Applicant applied for a work permit but made a mistake of using the form for applicants located outside of Canada. Her application was refused and she then requested for reconsideration by resubmitting the correct form for an out-of-Canada application. Yet, the Officer did not assist her in this request, claiming that she needed to file a brand new application. However, the Court ruled that this reason contradicted the regulation. Moreover, since the IRCC took too long to process the Applicant’s first application, she now cannot make a new application for post-graduate work permit.
Thus, the Court determined that the Application is allowed.
NURTAI MUNZHUROV // IMM-7738-21 2023 FC 657 // May 8, 2023
The Applicant would like to apply for a TRP due to his inability to be a full-time student. The Applicant had provided detailed explanation for this inability. Since he fulfilled all the other requirements for PGWP, he believed the change to TRP was appropriate.
The Officer rejected the request but did not provide any reasoning. Contrary to the TRP’s requirements, The Officer did not mention the Applicant’s history, reasons for presence in Canada, and benefits to others. Nor did the Officer show a consideration between the Applicant’s compelling need to stay in Canada and any associated risks. Hence, the Court could not determined if the Officer had reviewed and analyzed the application carefully.
The Court determined that the Application is allowed.
EDWARD MICHAEL FAZEKAS // IMM-8504-21 2023 FC 666 // May 10, 2023
Between 1991 and 2003, the Applicant was charged with almost 40 criminal offenses related to theft, failure to attend Court, and failure to comply with probation. However, since 2003, he had dealt with his addiction problem to take care of his aging parents. Thus, he was not charged with any criminal activity but for one incident in 2012 where he was charged with driving while suspended.
The Applicant then had a romantic relationship with a Canadian citizen and thus wanted to visit her. He then applied for criminal rehabilitation in 2020. The Officer turned down his application. The Officer was not satisfied that the Applicant will not reoffend, but without any reasoning. The Court pointed out that although the Applicant’s criminal record was substantial, it was also dated. The Applicant’s last offense in 2012 was more than ten years ago and if that was discounted, his pattern of criminal activities stopped in 2003. According to the Applicant, the lasting break signified that he is unlikely to reoffend. The Officer did not provide any explanation as to why they believed the contrary.
Thus, the Court determined that the Application is allowed.
MOHAMMAD KHALID PIRZADA ET. AL. // IMM-2785-22 2023 FC 835 // June 12, 2023
The applicants’ super visa application was turned down because they have, according to the Officer, too strong family ties to Canada, specifically having their daughters in Canada. Yet, having at least one child that is a citizen or a permanent resident is also a requirement for the super visa. The Officer also saw the Applicants’ establishment in Pakistan as too weak, but they have provided letters from family members in Pakistan who wanted to and can take care of the Applicants after their visit to Canada. Based on the conflicting reasons from the Officer, the Court deemed that the Officer’s considerations did not fully engage with key issues raised by the evidence and thus were unreasonable.
Hence, the Court ruled that the application is allowed.
TERRY RICARDO CHAMBERS // IMM-6879-21 2023 FC 852 // June 16, 2023
The application for a spousal sponsorship visa was turned down because the Officer deemed that the evidence provided by the Applicant was not sufficient. Specifically, the couple must prove that they are a bonafide couple with a minimum amount of interdependence, and the Officer was not convinced by the evidence given their 6-year marriage.
However, the evidence submitted included a Hydro One bill in his and his spouse’s names, two bank statements with both names, identification showing that they share the same address and letters of support. All of these were recorded from the date of their marriage and demonstrated that the Applicant was cohabitating with his wife ever since, which the Officer even recognized.
Yet, the Officer did not give any reason as to why the provided evidence was not enough nor why the relationship should be questioned.
Due to the Officer’s lack of justification, the Court ruled that the application was allowed.
IGOR BENEDETTO ASCIUTTO // IMM-8464-21 2023 FC 883 // June 22, 2023
Igor Benedetto Asciutto’s application for a visa was declined for failing to meet certain requirements. According to the law, if an applicant does not meet all of the requirements of a particular type of visa, he may request a TRP. Once he applies for a TRP, the request must be considered. Yet, the Applicant argued that the Officer did not consider his TRP request in this case. According to the Court, The Officer’s failure to do so is a reviewable error.
The Court thus determined that the application was allowed.
SHANTHAKUMAR ET. AL. v. CBSA ET. AL. 2023 // ONSC 3180 // July 17, 2023
In July 2012, Shanthakumar and Mylabathula, Canadian senior citizens, were detained and arrested by the Canadian Border Services Agency (CBSA) and the Regional Municipality of Niagara Police Services Board for failing to comply with undertakings they had given to the Royal Canadian Mounted Police (RCMP). The arrest was based on information in the Canadian Police Information Centre (CPIC) system.
The defendants suspected Shanthakumar and Mylabathula of “port of entry shopping” at the US-Canada border. Yet, because the first inspection booth they encountered did not appear open, Shanthakumar and Mylabathula were just driving along to look for another inspection booth. They did not transport anything illegal or try to hide away from the toll booth. The defendants then ran their passports through the CPIC, the national police database, and saw a notation from the RCMP two years ago demanding the couple to stay in Ontario waiting for the result of a fraud charge. The defendants did not confirm the validity of the charge which, by the time of the event, had been dropped. Immediately afterward, the couple was detained, handcuffed, read their rights, cautioned, frisked, and jailed first for 3 hours by the CBSA then for another 3 hours by the Niagara Police. They were not allowed to call either their lawyers or their daughter, who was waiting for and worrying about them. It took eight hours for the RCMP to confirm that the account on which the defendants had arrested the couple was invalid. The couple was released but found that CBSA had impounded their car and made them pay $1,000 for its return.
Until now, the defendants (CBSA and Niagara Police) have deemed their actions as mere mistakes that caused minimal harm, and thus, have not apologized to either Shanthakumar or Mylabathula. However, the wrong arrest had caused a great mental toll on both. Being treated like criminals for a crime they did not commit, they were scared, embarrassed, angry, and humiliated. Their social life was also affected by the news of their arrest. Shanthakumar passed away without having her rights vindicated.
Due to the unreasonable nature of the defendants’ mistake as well as the violation of rights and mental harm Shanthakumar and Mylabathula suffered, the Court ordered the RCMP to pay general damages of $25,000 and punitive damages of $5000 to each of Mylabathula and the Estate. The Court also ordered the Niagara Police to pay general damages of $15,000 and punitive damages of $5000 to each of Mylabathula and the Estate.
JOSEPH ONYIBOR // IMM-5633-22 2023 FC 1005 // July 21, 2023
The Applicant was sponsored by his wife for a Visa. He and his wife were questioned separately to determine the genuineness of their marriage. The Officer pointed out several inconsistencies between their answers to dismiss their marriage.
First, the Officer stated that the Applicant’s wife had provided the wrong street address for the Costco where they first met. Yet, the Court noted that they both mentioned the same Costco in Vaughan, so a mistake in the specific address was not serious.
The Officer also said that the couple’s answers to the nicknames they have for each other did not match – the Applicant’s answer was “baby” or “darling,” while the Sponsor’s answer was short forms of their first name. The Court deemed the Officer’s question as unclear and vague.
Then, the Officer was concerned when the Sponsor did not explicitly name the Applicant when asked “Who are you living with?” However, this question was right after the Sponsor said she was living with her husband. Hence, she was likely to assume “you” to mean both of them and was listing other people in the household. The number of people she provided only matched the number of people listed if counting the Applicant.
The Officer questioned the Applicant when his wife first arrived in Canada. The Applicant asked for clarification of which wife, his first or his current, and this caused the Officer to doubt the genuine of the Applicant’s current marriage. Yet, this was unreasonable since this question followed that about when the Applicant’s son arrived in Canada. His son was accompanied by his first wife, so his confusion and demand for clarification were justified.
The Officer concluded that the marriage was not genuine. The Court deemed this conclusion unreasonable.
Thus, the Court determined that the Application was allowed.
DEMAINE ATHOL ASPHALL [RESPONDENT] // IMM-3825-22 2023 FC 1090 // August 9, 2023
Demaine Athol Asphall has had permanent resident status in Canada since 1993. The respondent was sentenced to two years for a possession charge, carrying a concealed weapon, and breach of weapon prohibition. The respondent then sent an appeal to IAD to avoid a removal order. According to Subsections 64(1) and (2) of the IRPA, the IAD has no authority to conduct a hearing for such a serious criminal case. Yet, the IAD had quashed the Respondent’s removal order, exceeding its jurisdiction. The Minister sent an appeal against the IAD’s decision.
The Court determined that the Minister’s appeal was allowed.
NEDA NIKSERESHT MASOULEH ET. AL. // IMM-2609-22 2023 FC 1159 // AUGUST 28, 2023
Masouleh’s study permit was denied due to weak ties to her home country of Iran. She was accompanied by her husband and four year old child, with her extended family and financial assets remaining in Iran. The case of Iyiola v C.C.I was cited, wherein insufficient family ties to country of origin were cited as reason for refusal of a study permit. The same was the case in Sadeghinia v C.C.I.
In this case, the Officer’s reasons surrounding how family ties are weakened by the family accompanying her were vague. This is compared to Vahdati v C.C.I., where family ties were questioned due to spouse’s accompaniment. There was an emphasis on the need for a thorough analysis beyond a broad generalisation.
The Officer’s notes lacked an explanation on the assessment of the Principal Applicant’s family ties in Iran. The Officer also failed to consider factors such as Masouleh’s family ties and financial assets in Iran, which are evidence of her intention to return home upon completion of her studies. As per Balepo v C.C.I., failure to mention evidence contradicting the finding implies oversight.
The Court in this case cited Vahdati, where the Officer’s analysis was criticised for ending at the family’s accompaniment. The Officer in Masouleh’s case failed to weigh factors like Family Information forms, assets in Iran, and the lack of family ties in Canada. As per Vavilov, the Officer’s reasons lack a clear line of analysis, rendering the decision unreasonable. The finding that the Principal Applicant failed to show ties to Iran is unjustified, unintelligible, and lacks transparency.
The Officer’s decision to reject the study permit is deemed unreasonable due to insufficient analysis and failure to consider crucial evidence.
Application allowed.
REZA JAHANTIGH // IMM-12549-22 2023 FC 1253 // SEPTEMBER 19, 2023
Mr Jahantigh applied for a study permit to pursue a PhD in Canada. Thirty eight months later, he filed for an order of mandamus due to delays. The day before his case was meant to be heard, he received a letter from an officer of the IRCC indicating that they had grounds to believe that Jahantigh may be inadmissible because he was a danger to the security of Canada (34.1(d) of IRPA). This is known as an ‘11th hour procedural fairness letter.’ The security concerns raised pertain to the work Mr. Jahantigh ‘could have engaged in’ while at a private software company. There were further concerns about the sensitive nature of his PhD research.
It was argued that the issuance of the letter was inefficient and unfair, with the IRCC having known about his mandamus application and the hearing date for several months. By issuing the letter the day before the hearing, counsel for the parties and the court were put in the position of having to address issues at the last minute.
The National Security Screening Division, a partner of CBSA, performed the security review. The Minister subsequently claimed that because the review was completed by a partner, they were unable to provide evidence surrounding the reason for the delay.
The Court challenged the Minister’s expectation that they would accept the delay without evidence. Even security reviews, while granted some deference, must be bound by reasonableness. The Minister must provide information about the review and the reasons for the delay.
The IRCC had not submitted evidence surrounding the reason for the delay or the nature of the security screening. The IRCC cited COVID-19 as a reason for the delay, but provided no details or specificity. The IRCC further claimed they were unable to obtain more details from the CBSA.
Ultimately, the Court rejected the government’s arguments. The Court ordered the Minister to report to the Court on the status of the application every thirty days. The parties were encouraged to consult prior to filing reports to address concerns expediently.
Application allowed.
September
SEYED MANSOOR SHAMS // IMM-8795-22 2023 FC 1300 // SEPTEMBER 26, 2023
Mr. Shams applied for an intra-company transferee work permit to launch Saba Waterbuild Company in Toronto. The Officer reasonably found that Mr. Shams had not demonstrated the requisite employer/employee relationship, had no plans to establish physical premises in Toronto, had provided insufficient financial information, and had a business plan that failed to establish significant economic benefits for Canada.
Further, Mr. Shams failed to provide pay stubs or records for continuous employment. The Officer found the Work Certificate lacked details on full-time employment, and bank statements failed to show consistent salary deposits, raising doubts on the employment relationship. While the Officer acknowledged the company’s ability to commence business, they were ultimately dissatisfied with the financial information provided. Mr. Shams’ reliance on growth projections in the plan was deemed unreasonable.
Mr. Shams’ plan did not demonstrate any intention to establish physical premises in Toronto. The Officer found hiring one person in the first year and up to three by the third year to be of insufficient economic benefit. Mr. Shams argued the benefits to hiring contract workers and future hires, but the Officer considered the business plan speculative and lacking specifics. Mr. Shams also argued that the business plan demonstrated financial viability, but Officer found it aspirational and lacked evidentiary foundation.
The Officer found insufficient evidence to support Mr. Shams’ work permit application for intra-company transfer.
Application dismissed.
HAJRA RASHID // IMM-8706-22 2023 FC 1277 // SEPTEMBER 22, 2023
Rashid received a Bachelor of Laws from the University of London in 2016. She subsequently worked in administrative and research roles focusing on human rights and justice in Pakistan. Rashid also worked for a law firm doing research that related to cybersecurity. She eventually chose to pursue a cybersecurity diploma at the Toronto School of Management to further advance her career.
The Officer found that the proposed cybersecurity diploma wouldn’t lead to significant academic or professional progression. The Officer also considered the cost of the program and noted it as a significant expense for the applicant and her siblings. Rashid’s family ties in Canada were acknowledged, but the importance of her personal and financial ties in Pakistan were emphasised. Limited information was provided about the applicant’s relationship with her parents and the plan to resume living with them after studies.
The costs of the program were found to be significant, considering the applicant’s modest income in Pakistan. The applicant argued that the Officer overlooked tuition that had already been paid, a scholarship, and financial support from her family. The Officer’s conclusion on the significant expense was deemed reasonable based on the available evidence
The Officer also noted that Rashid already had a law degree, but did not contrast the level of that degree with the diploma she hoped to attain in Toronto. Rashid did not offer any evidence to contradict the findings with respect to the relevance of her proposed course of study to her career advancement. The letter from Ms. Rashid’s employer stated only that she would return to her existing job at the conclusion of her studies, which negated any claims of career advancement.
The Officer’s decision was deemed reasonable, considering the relevance of the course, program cost, and ties to Pakistan. The mere existence of family ties in Canada was not the primary factor for refusal.
Application dismissed.
LACHHMAN DAS // IMM-5383-22 2023 FC 1307 // SEPTEMBER 27, 2023
Das was a massage therapist who was convicted of committing sexual assault in 2014 and sentenced to six months in prison. He left Canada in 2014, moved to Pakistan briefly, and currently works as a doctor in Oman to support his family.
Mr. Das’ family includes his wife, daughter, and two sons, both with significant disabilities. The family, except for the applicant, are all Canadian citizens. Mr Das’ son’s needs have intensified, making it challenging for Mr. Das’ wife and daughter to care for them in his absence. Mr. Das applied for permanent residence on Humanitarian and Compassionate grounds and for criminal rehabilitation.
The IAD found Mr. Das’ departure from Canada contrary to IRPA objectives. It was argued that leaving for employment contradicts the IRPA framework, not solely due to poor job prospects, but also because of the criminal conviction and pending admissibility hearing.
The IAD acknowledged the sons’ inability to live in Oman under Mr. Das’ residency permit. The sons also visited Das in Oman for extended periods, which were classed by the IAD as “extended visits”. It was recognized these visits could ease the burden on the family and benefit the sons.
Das has an open ended residency permit in Oman, to be renewed every two years. He is gainfully employed as a doctor with financial stability. He has a car, a residence, and bank accounts in Oman. The IAD concluded he had strong ties to Oman, considering his insistence that his job prospects in Canada were poor.
Mr. Das’ application for permanent residence was dismissed based on IAD’s findings regarding his departure reasons and ties to Oman.
Application dismissed.
FARZANEH ALI ASKARI ET. AL. // IMM-7857-22 2023 FC 1318 // SEPTEMBER 29, 2023
The principal applicant (PA) holds a bachelor’s degree in chemical engineering and a master’s with a specialisation in polymer engineering. She is aiming to enhance this qualifications to gain a senior position in Iran by pursuing a Master of Administrative Science in Global Health and Human Services Administration at Fairleigh Dickinson University in BC.
The Officer believed that the presence of the PA’s spouse and children in Canada weakened her ties to his home country of Iran. The Officer cited family ties as the rationale without giving consideration to the family members that remained in the country of residence.
The cases of Iyiola v C.C.I., 2020 FC 324 and Vahdati v C.C.I., 2022 FC 1083 were referenced, wherein the need to consider all family ties and relevant factors in the analysis was emphasised. In Askari’s case, the applicants emphasised the emotional attachment and support they provide to ageing parents in Iran. The Officer failed to consider significant family ties in Iran and did not address why this evidence was insufficient.
Legal precedent highlights the importance of the decision maker considering and weighing all evidence. In this case, the Officer’s reasons lacked consideration of contradictory evidence submitted by the Applicants.
Further, the Officer stated that they believed that the PA’s proposed degree was redundant without sufficient justification as to how the degree would contribute towards her professional development. The Officer’s role is not to determine usefulness without considering evidence presented, and it was argued that this duty was not upheld. The PA’s explanation of the program’s relevance to her career advancement and the demand for experts in the field in Iran was not addressed.
The Officer’s decision was ultimately deemed unreasonable due to failure to meaningfully grapple with evidence, selective consideration of facts, and inadequate assessment of the study plan.
Application allowed.
IBRAHIM ZEINE // IMM-3502-22 2023 FC 1370 // OCTOBER 16, 2023
In this case, the Officer failed to conduct a reasonable equivalency analysis. There was no evidence supporting the assertion that the essential elements of the foreign provision matched the Canadian law.
Mr. Zeine believed he had acted in self defence to protect his father. The Officer did not consider if the foreign crime, under the circumstances, would constitute an offence in Canada. The Officer concluded Mr. Zeine’s failure to declare the foreign conviction was a material misrepresentation. Zeine explained that his sister had helped him complete the forms, relying on a police report that showed no convictions.
The Officer failed to address Zeine’s request for compassionate relief. It was argued that Mr. Zeine’s family situation, especially the impact on his Canadian son, warranted consideration of humanitarian and compassionate factors.
The Officer’s failure to consider humanitarian and compassionate grounds was found to be unreasonable. Zeine’s application for permanent residence was set aside and remitted for redetermination considering inadmissibility and humanitarian factors.
Application allowed.
BERNADETTE THERESA CONNELL // IMM-4597-21 2023 FC 1316 // SEPTEMBER 29, 2023
The applicant submitted a psychiatric report on the impact being returned to Barbados would have on his PTSD. The Officer acknowledged the mental health diagnosis, but failed to assess its impact on the best interests of the child. The Officer did not consider the risk of deterioration in mental health upon removal from Canada. It was argued that failure to address this aspect would render the decision unreasonable.
The Officer concluded that there was insufficient evidence without explaining why or acknowledging the evidence submitted. The applicant had provided articles on healthcare in Barbados and Saint Lucia. The Officer’s failure to address this evidence vitiate’s the decision.
The Officer did not consider the Applicant’s Temporary Resident Permit request. It was emphasised that the length of submissions is irrelevant; the duty to consider alternative requests remains. The Officer’s failure to consider the Temporary Resident Permit constitutes an error in due process.
Application allowed.
RAYKEL RODRIGUEZ ZAMBRANO // IMM-2427-22 2023 FC 1583 // NOVEMBER 27, 2023
The applicant is married with dependents in Venezuela. The Officer concluded that he is not “sufficiently established” enough to ensure he would leave Canada at the end of a scheduled trip. Upon judicial review, the lack of transparency and intelligibility of the Officer’s decision was called into question. The respondent argued that there was insufficient evidence as to the strength of family bonds and the Applicant’s likelihood to leave Canada.
The Officer claimed that the Applicant’s financial status did not show that the expense of their trip to Canada would be a reasonable one. The Applicant had set aside $5000 for an 18 day trip, and the Officer failed to draw a conclusion on the relevance of this amount. The validity of the Applicant’s bank statements was called into question, but as per Vavilov, the role of the Court is to focus on evaluating the actual reasons the decision was made.
It was also argued that the Officer’s characterisation of parents in the region supporting adult children who are married is baseless and approaches stereotyping. The Respondent claimed such reasoning would not change the decision, but the Court nonetheless found it to be troubling and unjustified. Further, the Applicant’s mother’s willingness to pay for the visit was deemed to be ‘unusual’ without factual basis.
The Officer’s conclusion that the Applicant’s travel history is not a positive factor lacks reasonable justification. Previous case law (Afuah v C.C.I and Donkor v C.C.I ) has established that a history of leaving the country of residence and returning should be seen as a positive factor. The Applicant’s travel to the Dominican Republic was not considered in the decision, rendering it unjustified.
The Court highlighted the errors in the Officer’s decision making process. Application allowed.
NEDA AGHAEI KHORASGANI // IMM-9300-22 2023 FC 1581 // NOVEMBER 27, 2023
The use of the Chinook 3+ tool in assessing applications was found not to be inherently unfair or unreasonable. Following Vavilov guidelines, the focus should be on the decisions made by humans, as opposed to the tool itself.
The Officer’s decision was deemed unreasonable for several reasons. Firstly, the Officer incorrectly concluded that the Applicant lacks ties to Iran on the basis of being unmarried, mobile, and having no dependents. The Officer further ignored the Applicant’s evidence of family and economic ties in Iran, and the absence of ties to Canada. Recent court rulings emphasise the need to consider contradictory evidence before deeming an applicant insufficiently established in their home country. Being single, mobile, and without dependents cannot be standalone reasons to deny a study permit without further analysis.
The Officer also wrongly assumed that the proposed studies do not align with the applicant’s career and academic background. The Officer was found to have taken on an inappropriate ‘career counselling’ role. The Applicant’s desire to advance in aviation safety is valid, despite not having a degree in the field. The mention of the International Civil Aviation Organisation and its headquarters in Canada is a relevant reason for wanting to study there.
The Court indicated flaws in the decision making process. Application allowed.
ARFAT ALMADANI MOHAMMED // IMM-12108-222023 FC 1703 // DECEMBER 15, 2023
The Officer refused Mohammed’s application because he applied for an Open Work Permit (OWP) after his status had expired. Justice Pallotta disagreed, however, with the Officer’s claim that Mohammed had implied status or authorisation during the restoration application process.
Mohammed had the right to apply for an OWP under subsection 199(e) of the IRPR while awaiting a decision on his restoration application. Mohammed’s entitlement to apply for an OWP was undisputed, which renders the Officer’s refusal unintelligible. There was also a lack of clarity in the Officer’s decision as to whether it was based on a specific interpretation of legislation or IRCC policy.
As per the Vavilov guidelines, if the Officer’s refusal was based on an unclear interpretation, it must be set aside. Justice Pallotta was unable to determine if the Officer reasonably interpreted legislative requirements.
The Court cited the lack of clarity in the Officer’s decision making process. Application allowed.
MARLOU FERRERA // IMM-7280-22 2023 FC 1717 // DECEMBER 18, 2023
The Officer’s decision was based on a misunderstanding of the risk element in the case. The Applicant asserted that they posed no risk to Canadian society as they had no pattern of non compliance with the law. This claim was rejected by the Officer.
It was found that the Officer made errors in reviewing the history of the Applicant’s temporary status expiration and efforts to regularise it. The Officer claimed that the Applicant showed complete disregard for immigration laws, because she cited incorrect dates.
The Officer argued that the Applicant continued to disregard immigration laws by delaying the instruction of counsel. The Applicant argued that this was merely a clerical error, and that counsel was instructed within two days of her application being refused. The Applicant actively sought to regularise her status.
The Officer’s description of the Applicant as demonstrating ‘complete disregard’ for immigration laws is contradicted by the evidence. The Application was technically out of status, but was actively taking steps to rectify her situation.
Due to the nature and potential impact of these errors on the entire analysis, the court deemed the decision to be unreasonable. The situation was likened to a hypothetical wherein someone actively seeking regularisation should not be held to the same standard as someone evading immigration laws for years.
Eros were found in the Officer’s decision making process that were serious enough to render the entire decision unreasonable. Application allowed.
VAHAN KHOSROFYAN // IMM-6763-22 2023 FC 1586 // NOVEMBER 28, 2023
The Visa Officer found Khosrofyan failed to demonstrate the intent to reside in Quebec, which is required by regulations. There were challenges to the Officer’s decision to focus on a past Express Entry application that indicated an intent to reside in Alberta.
The officer treated the Applicant’s past intent to reside in Alberta as an insuperable obstacle, failing to recognise that plans can change. Khosrofyan refuted the Officer’s claims that he was unable to communicate in French. The Officer took further issue with the fact that Khosrofyan only started language lessons once evidence of an intent to reside in Quebec was requested of him. The Court disagreed, stating that the knowledge of French or steps taken to learn it are relevant to assessing intent.
The Officer overlooked Khosrofyan’s two and a half year self taught learning of French, and his daughter’s two year French education. There was an emphasis on the fact proving intent to reside in Quebec does not require a specific level of French proficiency.
The Officer unreasonably discounted the support from the Applicant’s wife’s aunt who resided in Laval, Quebec. The Officer failed to consider a detailed letter explaining the lack of in person visits the Applicant had been able to make to Quebec.
The Court further cited the Officer’s failure to consider relevant evidence. Due to these shortcomings, the Visa Officer’s decision is deemed by the Court to be unreasonable. Application allowed.
JENNIFER WOPHILL // IMM-11836-22 2023 FC 1618 // DECEMBER 1, 2023
The Applicant argued that new evidence was compelling and addressed deficiencies in her application. Wophill contends that it was unreasonable for the Officer to reject consideration based on this new evidence.
The two step process for reconsideration of an administrative decision was set out. Firstly, the decision maker decides whether to exercise discretion to proceed with reconsideration. If reconsideration is then granted, the decision maker is to evaluate the new evidence during the actual reconsideration.
There is no general obligation to grant reconsideration solely because new evidence is submitted. The Applicant must demonstrate that reconsideration is justified in the interests of justice or due to unusual circumstances.
In this case, the Officer stopped at the first step of reconsideration, and failed to move onto the substantive analysis of the new evidence. Because the Officer did not move from the first step into the substantive analysis, there was thus no resulting obligation for the Officer to provide reasons for rejecting reconsideration or analysing the new evidence.
The Court concluded by stating that the Officer, having not progressed beyond the first step of reconsideration, was not required to assess the new evidence or provide reasons for its rejection. Application dismissed.
