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.
2011
November
ANTHONY SINANAN T-378-11 2011 FC 1347 NOVEMBER 23, 2011
In order to be considered eligible to apply for Canadian citizenship, the immigration Canada Applicant must have been physically present in Canada for 1,095 days prior to submitting his Canadian immigration application. This physical test is deemed to be the only correct and accurate test to administer. The Canada immigration Applicant was not just a few days short of the required 1,095 days, he was in reality physically present in Canada for only 584 days over the course of the required 4 year period prior to his application for Canadian citizenship. The application in question was therefore refused.
ROMAN MOLEV IMM-2766-11 2011 FC 1362 NOVEMBER 24, 2011
The immigration Canada application, which was initially refused, was then allowed due to the fact that the Canadian immigration Visa Officer did not properly follow the guidelines of procedural fairness. These guidelines state that ‘When the Officer has concerns about eligibility or admissibility the Applicant must be given an opportunity to rebut the content of any negative provincial assessment that may influence the final decision’. The Canada immigration Visa Officer in question’s failure to resolve his doubt by following the guidelines of procedural fairness owed to the Applicant is a breach in the duty of fairness owed to the Applicant, the application was consequently allowed.
December
- KHAN A-416-10; MD. KABIR A-419-10; SYED HASAN A-484-10 2011 FCA 339 DECEMBER 6, 2011:
The foundation of the question in this case is whether Visa Officers must only give credit for those years of study, which the national authorities identify as the norm for the achievement of the educational credential in question, or whether Officers can recognize other years of study. In answer to this question, Visa Officers must give credit only for those years of study, which the national authorities identify as the norm for the accomplishment of the educational credential in question according to section 78 of the Immigration and Refugee Protection Regulations.
SARI v. MCI IMM-1990-11 December 7, 2011
Ayesgul Sari’s application to become a Canadian permanent resident under the federal skilled worker category was initially declined in March of 2011. The Applicant, a pathologist, was refused as a specialist in medical pathology as the Visa Officer deemed that “the Applicant had not provided sufficient evidence that she had performed the actions described in the lead statement for the occupation or that she had performed a substantial number of the main duties, including all essential duties” (75(2 B, C) Immigration and Refugee Protection Regulations). It is not sufficient for an applicant under the federal skilled worker category to provide evidence of academic qualifications or evidence of employment under the specified title, rather the applicant must provide evidence that the actions described in the lead statement for the occupation were fulfilled during employment as well as a substantial number of the main duties, including all essential duties. As a resident in training however, Sari did indeed satisfy the lead statement.
Given the ambiguity of the term “resident in training”, it is the Visa Officer’s duty “to make such reasonable inquiries as will enable a careful assessment of the application, in addition to informing the Applicant of any negative views that they have formed of the application, giving the Applicant the opportunity to respond to such concerns”. A judicial review was granted of the Applicants application, and the matter remitted back to a different Visa Officer who was to comply with the above mentioned procedural fairness and therefore inform the Applicant of the concerns about the Applicants duties, affording the Applicant an opportunity to respond, increasing the likelihood of her becoming a Canadian permanent resident under the federal skilled worker category.
DILMURAD KAMCHIBEKOV IMM-7555-10 2011 FC 1411 DECEMBER 13, 2011
The immigration Canada application under the federal skilled worker category was refused. This decision was based on the way in which the list of duties and description of tasks corresponding to the skilled work in question were written by the Canadian immigration applicant. The section in question of the Canada immigration application was nearly a copy of the statements regarding duties and tasks found in the National Occupation Classification (NOC). When presented with this information, Visa Officers are entitled to question whether these documents accurately describe the Applicant’s prior work experience. The similarity between the documents provided by the Applicant and the NOC descriptions did not allow the Officer to properly evaluate whether the Applicant in question had the required work experience to immigrate to Canada under the skilled worker Canada program.
JASBIR GRABOWSKI IMM-7575-10 2011 FC 1488 DECEMBER 19, 2011:
After obtaining a Canada work permit, the Applicant in question arrived in Canada, however he only completed a mere four days of work before he became unemployed. Soon after the Applicant lost his job, he met his current spouse who is a permanent resident in Canada. Once married, the Applicant applied for a Canadian permanent resident card. The Officer found that the circumstances surrounding the Applicant’s purpose for initial arrival in Canada as well as those surrounding the meeting of himself and his current spouse were not credible. A marriage could be found to be of bad faith either if it was not entered into genuinely or if it was entered into for the purpose of acquiring an immigration Canada status. The Officer came to the conclusion that the Canadian immigration Applicant had come to Canada for a purpose other than his initially stated goals, which were work and travel related, and that both spouses were not credible in their accounts of their meeting. The Officer’s conclusion that the marriage was entered into for immigration purposes was supported by the evidence provided as well as the Officer’s supporting reasons. Due to this marriage being deemed a marriage of convenience, the Canada immigration application was dismissed.
EDWIN CALAUNAN IMM-2339-11 2011 FC 1494 DECEMBER 20, 2011
The Applicant, applying for a Canadian temporary work permit, had his Canada immigration application refused. The Officer did not refuse this application on the basis that the Applicant could not perform the duties of the Canadian job offered to him, however dismissed the application based on the conclusion that the Applicant had not established he would depart Canada at the termination of his authorized stay. This conclusion was given based on the minimal ties he held to his home country, the fact that he had family in Canada, in addition to the fact that his education and work history were deemed unrelated to the employment he had been offered in Canada. No significant evidence was provided to ensure his departure at the end of his authorized stay nor to prove that any important ties existed with his home country. Officers are entitled to rely on their common sense and rationality in their analysis of an Applicant’s incentive to leave Canada at the end of his authorized stay, as the Officer was not convinced that this incentive existed in good faith; the immigration Canada application in question was dismissed.
RAED HADAD IMM-608-11 2011 FC 1503 DECEMBER 20, 2011 O’KEEFE J.:
Within the concept of criminal rehabilitation lies the understanding that the Canadian immigration Applicant has previously participated in a form of legally prohibited conduct, explaining why the Applicant in question requires rehabilitation. To be considered for criminal rehabilitation, the Officer will inquire as to whether or not the Applicant is likely to further participate or continue with similar forms of legally reprehensible conduct.
In this case, the Officer was satisfied, given the facts, that the Applicant had presented sufficient evidentiary proof, which demonstrates that he has been rehabilitated accordingly and is unlikely to be involved in future criminal or unlawful activity. Facts which were considered in favor of criminal rehabilitation include no criminal activity since being paroled in 1998; Canadian wife and children; His statement that prison changed his life and rehabilitated him; Active member in church and community; Positive reference letters from members of his community; Prompt application for work permit to support his family; and, Owner and operator of growing construction business. The Canada immigration application was therefore allowed.
HSUEH-WAN LU IMM-246-11 2011 FC 1476 DECEMBER 21, 2011:
An investor immigration Canada applicant who in the performance of his occupation in his home country of Taiwan, negligently killed another resulted in the refusal of the Applicant’s immigration Canada application. The Visa Office found the Canadian immigration Applicant inadmissible to Canada on the grounds of serious criminality. If committed in Canada, the offence could have been punishable by a maximum term of imprisonment for life, and it was decided reasonable for the Officer to consider criminal negligence in Canadian law as defined in the Criminal Code. The Criminal Code ‘confirms the duty imposed on every one who directs work to take reasonable steps to ensure the safety of others’. The Officer’s decision to refuse the Canada immigration Applicant’s application was reasonable as the offence, if committed in Canada would constitute as an offence which under federal law in Canada (Criminal Code) is punishable by a maximum term of imprisonment for life, therefore a serious criminal offence.
RU WANG IMM-4226-11 2011 FC 1510 DECEMBER 22, 2011:
The Applicant’s Canadian criminal rehabilitation application was refused. The immigration Canada application was rejected on the basis that Canadian law considers intent or knowledge, in that the accused be a party to the offence, and that injury (in this case bodily harm) be caused to the victim, as a serious offence. The Applicant’s role in the offence in terms of whether he could have been deemed to be a party to the offence under Canadian law was considered and after examining the evidence, inclusive of the Applicant’s own admissions, it was concluded that there were reasonable grounds to believe that the Applicant in question fulfilled the definition of an aider and abettor under the Criminal Code, his immigration Canada application was resultantly rejected.
MARIE CARMELLE JOSEPH IMM-2158-11 2011 FC 1515 DECEMBER 23, 2011:
The Canadian immigration panel in this case committed a reviewable error in determining the Canada immigration Applicant’s credibility and in turn the genuineness of her marriage. The panel performed unnecessary microscopic analysis of certain inconsistencies found within the Applicant’s immigration to Canada application, such as different telephone numbers between her and her spouse as well as their difference in religion. The panel did not support these findings with evidentiary proof but rather made broad generalizations, which they failed to explain. The Applicant’s Canadian immigration application is therefore allowed.
