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.
2012: January February March April May June July September October
November December
2012
January
IRUM RAHIM TALPUR ET. AL. IMM-35-11 2012 FC 25 JANUARY 9, 2012:
During a Canadian immigration interview, the Visa Officer aimed to assess the technical skills of the principal Applicant. However, a lack of knowledge at a selection interview relating to what a Visa Officer believes a person with experience in a particular profession should know about their field, based upon the personal opinions of that Visa Officer is not a valid basis for the conclusion that an Applicant has not performed the duties required. The Officer is not in a position to question the Applicant’s technical abilities after accepting that the Applicant in question was certified and registered as a licensed physician in her home country, nor is the Officer in a position to determine whether the Canada immigration Applicant is truly competent as a physician and therefore whether the Applicant in question should be authorized to practice in Canada. Being satisfied with the Principal Applicant’seducation credentials, the only remaining task for the Visa Officerwas to verify whether she had at least one year of continuous full-time paid work experience as a general practitioner, pursuant to specified requirements, as this was indeed the case the Applicant’s immigration Canada application was allowed.
HWA JA KWON SUNG DING LEE IMM-609-11 2012 FC 50 JANUARY 13, 2012:
The Applicants, natives of South Korea, have three children in Korea and their fourth child, a daughter is a Canadian citizen and the mother of her own two children. Said daughter’s marriage ended due to the inconceivable behaviors of her husband, however this termination left the daughter alone as a student with no money and two young children. The Applicants’ (grandparents) came to the rescue of their daughter, moving to Canada, purchasing a home to serve as a safe environment for their daughter and granddaughters, learning English and most importantly provided a loving, stable and safe environment for their family. At the time of their Application for Canadian immigration the Applicants were effectively parenting their granddaughters because their daughter’s profession (nursing) does not allow her to be home on a regular basis.
The Officer under section 25 of the Act must take “into account the best interests of a child directly affected”. The Applicants for the Canadian permanent resident card continue to provide much needed emotional and psychological support to their daughter and granddaughters and this stability is recognized as a factor of primary importance in the well-being of these Canadian citizens. Based on the preceding facts it is evident that the departure of the Applicants would deprive their daughter and granddaughters of the emotional and psychological support, which the Officer concluded they needed. Permanent resident Canada application is therefore allowed.
NOLY DELA ROSA MERCADO ET. AL. IMM-2940-11 2012 FC 112 JANUARY 27, 2012:
The Canadian immigration Applicant, a citizen of the Philippines was applying to extend his stay in Canada due to the fact that he suffers from a life threatening allergy that he claimed could be treated most effectively at the time of reaction through the EpiPen method, as opposed to the alternative treatment method, which administers epinephrine via ampoule/syringe, the former of which is prohibited in the Philippines. The EpiPen method’s advantages include portability and ease of administration, convenience and rapidity, however the alternative method is not presumed to be any less effective or lifesaving in the case of an anaphylactic reaction than the EpiPen itself. Additionally, the likelihood of experiencing an anaphylactic life-threatening allergic reaction was deemed by the Officer to be no more probable in the Philippines than in Canada. Therefore in conclusion, the Applicant’s immigration to Canada application was dismissed.
February
JOAHANA AWAH AMBASSA IMM-3986-11 2012 FC 158 FEBRUARY 6, 2012 RUSSELL J.:
The Canadian immigration Applicant was HIV+ and as a native of Cameroon was unable to prove that she would be faced with lack of effective medical care or unusual, undeserved or disproportionate hardship in her native country due to her condition. The Applicant, who had no family in Canada, did have family in Cameroon, some of whom were supportive and who could care for the Canada immigration Applicant, which would not be the case if the Applicant in question were to immigrate to Canada. The Officer admitted that while the Applicant could face a level of hardship, this hardship in her home country was not at the level of unusual, undeserved or disproportionate hardship required for her Canadian immigration application to be allowed via the humanitarian and compassionate (H&C) type immigration to Canada application. The application was therefore dismissed.
JERONIMO JOVITO DE SOUZA IMM-4789-10 2012 FC 167 FEBRUARY 7, 2012:
Under subsection 78(4) of the Act, the Canada immigration Visa Officer must first look to the academic credential held by the Applicant, where there applicant has a credential, the Officer must determine whether the Canadian immigration Applicant satisfies the total number of years of full-time education as set out in the Act, if satisfied, the Officer must then award full points under the subparagraph. Where the Applicant in question does not satisfy the number of required years, the Officer should award immigration Canada points equal to the number of years of education required in the section.
The Applicant in this case did not have the required number of years of full-time education, 13 rather than 15 as his Higher Secondary Certificate was not a pre-requisite for the Applicant’s diploma. Therefore subsection 78(2) of the Act is to be considered if following the above approach and the Officer should reward the same number of points as the number of years in the subparagraph, 15. Therefore regardless of the fact that the Applicant’s 2 years of Higher Secondary Certificate education were not considered, he was still awarded full points under section 78 of the Act and therefore could not gain any further benefit by having his application decision returned for further consideration. The Applicant’s application for judicial review of his Canadian immigration application is therefore dismissed.
HARMINDER SINGH DHILLON IMM-4887-11 2012 FC 192 FEBRUARY 9, 2012 HARRINGTON J.:
The immigration Canada Applicant, although mentally sound and a high school graduate, is partially disabled, giving rise to the question as to whether his condition (post-polio residual paralysis in both lower limbs), will prevent said Applicant from being financially self-supporting. While the Applicant, a native of India, did indeed encounter difficulties in finding employment in his home country, this is due to the attitude of the society in which he lives, towards people with disabilities rather than the Applicant’s actual inability to support himself financially, for “one must not only be willing to work, someone must be willing to hire”. The thrust of this case is whether the Applicant will be able to financially support himself where he lives, and not whether his physical condition would prevent him from becoming self-sufficient in Canada, where human rights are seen as fundamental. The Applicant’s immigration to Canada application is allowed, giving said Applicant potential for a fuller and more fulfilling life in a new, human rights-based country.
VANESSA ARANGO ROMERO IMM-4224-11 2012 FC 265 FEBRUARY 27, 2012 RUSSELL J.:
In 2011 the Applicant, a citizen of Colombia, applied for a Canada work permit under the Live-in Caregiver Program (LCP). The immigration Officer was not confident in the genuine nature of the Applicant’s professional choice, nor did the Officer believe the applicant would leave Canada at the expiry of her Canadian temporary resident permit as her past immigration record showed the clear interest of the Applicant to remain in Canada on a more permanent basis. This negative decision with regards to the Canada work visa application of the initial Officer was returned for reconsideration given that the Applicant, although perhaps wishing to stay in Canada on a more permanent basis, has demonstrated through past stays in Canada, that she will not do anything illegal to achieve this end. The Applicant’s work permit for Canada application is therefore allowed.
INDERJIT KAUR IMM-4004-11 2012 FC 273 FEBRUARY 28, 2012 NOËL J.:
The Applicant, applying for immigration to Canada under the federal skilled worker category believes she was the victim of a breach of procedural fairness on behalf of the immigration Officer, due to the fact that she did not receive notice stating that her marriage would be a primary focus of inquiry. The Applicant did however receive notice requesting she complete a spousal questionnaire and that she bring wedding photos from her marital ceremony and reception to an interview. At the end of said interview, the Officer, in compliance with the rules regarding procedural fairness clearly expressed her concerns and provided the Applicant with ample time to respond to these concerns; however the Applicant chose not to respond any further in the matter. While there was express concern that the marriage between the immigration Canada Applicant and her spouse was entered into in bad faith, the Officer could not conclude misrepresentation had occurred based merely on unconfirmed doubt with regards to the genuineness of the marriage. The federal skilled worker application was therefore allowed.
March
NARINDER PAL GILL IMM-3364-11 2012 FC 304 MARCH 13, 2012 PHELAN J.:
The permanent resident Canada application of the Applicant was dismissed. While his immigration status was still in doubt, the Applicant in question built and acquired interests in two trucking companies in Canada. When the Canadian permanent resident application was dismissed, the Applicant argued the decision to be unreasonable and unfair as it did not take into account his commercial establishment in Canada. The Applicant was able to leave Canada and return to his home country of India despite his attempted proof to the contrary, but chose to remain in Canada and build up his businesses. The Officer concluded that the Applicant’s establishment in Canada was a matter of choice and not a matter beyond his control.
AL ISMAILI ET. AL. IMM-2466-11 2012 FC 351 MARCH 22, 2012 BÉDARD J.:
It is the responsibility of the Applicant to establish and fulfill the necessary criteria in order for said Applicant to be considered eligible for immigration to Canada as a federal skilled worker. Within his application the Applicant in this case did not provide sufficient information and detail about his job duties and responsibilities, and therefore did not meet his evidentiary burden and did not establish and fulfill the necessary criteria of the application in question. Immigration officers must assess applications based on the evidence that the Applicant in question provides, and not on their own personal knowledge or assumptions with regards to a given profession or otherwise. In addition, the Applicant provided no excuse or explanation for failing to provide sufficient evidence with regards to the duties carried out under his profession. The Applicants application for immigration to Canada under the federal skilled worker program was therefore dismissed.
RANJIT SINGH IMM-4293-11 2012 FC 360 MARCH 28, 2012 RENNIE J.:
The Applicant in this case was seeking a Canada work permit, however the Officer determined the Applicant’s language proficiency in English was insufficient in order to grant the Applicant a work permit for Canada. While this conclusion was both evident to the Officer and satisfactory in order to deny the work permit in Canada, the officer settled to rely on the difference in earning potential between India and Canada alone, and this in itself is not sufficient as a sole reason for refusing an applicant a temporary Canada work visa. While disparity in earning potential is a fundamental component of the analysis of an application for a Canadian work permit, it cannot be the only part of the analysis. However, as the Officer reasonably determined that the Applicant’s English ability was insufficient to grant a work visa for Canada, this conclusion does not change the negative result of the application.
April
PING GUAN PENG IMM-6144-11 2012 FC 396 APRIL 5, 2012 TREMBLAY-LAMER J.:
The Applicant, his wife and their unborn child were each issued a Canadian permanent resident visa, the latter two visas issues as dependant on the former. When the child was born in the United States due to a problematic pregnancy, the family in question was refused landing into Canada and resultantly returned to their home country, China. When their Canadian permanent resident card’s expired shortly thereafter, the Applicant communicated with the Visa Officer in Canada in order to have his application re-opened and the infant added, similarly to his wife, as another dependant.
At the commencement of the Canada permanent resident application, the Applicant was informed of the necessity to inform Canadian immigration authorities or consulate of any changes to his family composition before his arrival in Canada. Given that the applicant did not follow these instructions, and regardless of the additional time, effort and cost that the Applicant will incur in order to file an entirely new application, the Applicant will not in conclusion be able to proceed with the application he previously submitted but will rather have to file a new Canada permanent resident application.
MASHID AFZAL ET. AL. IMM-3288-11 2012 FC 426 APRIL 13, 2012 TREMBLAY-LAMER J.:
The applicant in this case was a victim of an immigration consultant who was not an authorized Canadian immigration consultant or Canadian immigration lawyer. The ‘consultant’ included fraudulent documentation within the Applicant’s file with regards to a standardized language test recognized by immigration Canada. However it is the duty of the Applicant in question to ensure when making an application, that the documents included are complete and accurate, therefore it is the Applicant who will be held responsible for the contents of an application, which he or she has signed. Therefore the request on behalf of the Applicant that she not be penalized for the misrepresentation initiated initially by the unauthorized Canada immigration consultant is dismissed.
LUIS ENRIQUE RODRIGUEZ ET. AL. IMM-5046-11 2012 FC 437 APRIL 16, 2012
In an application for a Canadian permanent resident card, the Canadian immigration Applicant in question did not declare that he had dependent children. Although this was later interpreted as a simple inadvertence, this inadvertence does not constitute a compelling reason to accept a humanitarian and compassionate (H&C) application. The question in this case is wheter the Canada immigration Visa Officer committed a reviewable error in his consideration of the evidence. Following the interviews, the Officer concluded that the Applicant in question and his children did not have a sufficient degree of ongoing relationship to warrant H&C consideration.
There was sufficient evidence before the immigration Canada Officer regarding the lack of relationship between the initial Applicant in question and the current applicants being his children who were left out of the orriginal application inadvertently, to support the Officers conclusion of refusal. Such evidence included the fact that the initial Applicant had immigrated to Canada and left his children– the current applicants– behind, that he had relinquished custody of them, and that, in recent years, he had visited the current applicants only infrequently. Accordingly, this conslusion is reasonable, a reviewable error was not committed by the Canada Visa Officer on this case and the applicant’s application was resultantly refused.
NEWN SHIN LI IMM_2346-11 2012 FC 484 APRIL 25, 2012
The Canadian immigration Visa Officer in this case found that the immigration Canada applicant did not meet the English language requirement according to the Labour Market Opinion (LMO) nor the work experience criteria for his profession of choice. Although the Applicant submitted academic records, which specified passing grades in English, the Applicant did not meet the English requirements according to the LMO and this according to the Officer. While these grades were not high, there was no evidence which could prove them to be inadequate for the requirements specified in the LMO.
In terms of the proof of work experience submitted by the Applicant in question, reference letters were provided, which speak highly of the Canada work permit Applicant as a chef with many years of experience and a particular skill set in Asian food preparation, his profession of choice. Both the evidence provided by the Canadian work permit Applicant and his cultural heritage (Asian) makes it difficult to comply with the Officers opinion that the Applicant would be unable to perform the work sought.
Procedural fairness demands that the Canada immigration Visa Officer give the work permit Canada candidate the opportunity to respond to the Officers concerns. The Officers failure to grant the Applicant the opportunity to respond to his concerns resulted in a breach of procedural fairness and consequently the Canada work visa application was allowed.
May
NESTOR DIAZ OVALLE IMM-3764-11 2012 FC 507 MAY 2, 2012
The Applicant in question applied under the skilled worker Canada program and was HIV positive. The Canadian immigration Applicant argues that the Visa Officer failed to consider the Applicants detailed plan for managing his medical expenses when refusing his Canada immigration application. The Officer instead relied on the opinion of a medical doctor who expressed his concern with regards to the amount of treatment and the cost of this treatment that the Applicant in question would require.
The Officer gave the Applicant the chance to submit a plan to offset the demand he might impose on Canadian services and in response the Applicant agreed to assume responsibility for all social services he would require in Canada and agreed that he would not look to the federal or provincial government to fund those services. The issue at hand was whether the Applicant would impose an excessive demand on Canadian resources; however the Officer did not address that issue in his reasons. The Canadian immigration Officer did not explain why, given the Applicants detailed plan to cover the cost of his medication, remained medically inadmissible to Canada therefore his conclusion was unreasonable and the immigration Canada application allowed.
AMARJEET SINGH V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MAY 3, 2012
The Applicant, a citizen of India, was denied a study permit in Canada while studying in the UK on a temporary basis. The Applicant had applied for studies in his field below the academic level he had obtained. It was unclear why the Applicant would not remain in the UK to complete his current program, as planned.
The Applicant had temporary residence in the UK and very limited ties to India indicate a strong likelihood that the Applicant was not likely to depart Canada at the expiration of his visa. The Applicant has strong family ties to Canada and is highly mobile since he is young, single, and without any dependents.
The Officer was not convinced that the Applicant would leave Canada at the end of his stay. Evidence submitted by the Applicant and, primarily, the Applicant’s failure to explain fully why his education required him to come to Canada, as opposed to being completed where he was in the UK, led the Officer to this conclusion. The appeal was dismissed.
SARDA SAMI V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MAY 4, 2012
The Applicant was born in Fiji and is a Canadian citizen. Her husband, Dhindsa, is a citizen of India. In 2005, the Applicant submitted a sponsorship application to bring Dhindsa to Canada. CIC doubted the genuineness of the marriage based on incongruity between Dhindsa’s occupation as a Sikh priest and his marriage to the Hindu Applicant. The Applicant has submitted evidence she has visited her husband, photographs, and telephone records to demonstrate they have strengthened their marriage over the past seven years. The main issue in this case dealt with the applicant’s ability to submit additional evidence at different stages of the appeal process. Since the first appeal, the couple has maintained ongoing communication, cohabited numerous times, and shown financial dependence on each other. The appeal was allowed.
IRINA GRISCENKO IMM-871-11 2012 FC 614 MAY 22, 2012
The Applicant claimed to be self-employed with internationally recognized experience in her application for permanent residence. The Applicant has resided in Canada since September 28, 2010 on a temporary work permit. She is employed full-time as a Russian drama teacher at Discovery Academy in Toronto. The Applicant outlined ten years’ experience in Russian and Latvian drama choreography, stage management, acting, directing, and theatre education. She cited association with festivals and diplomas as evidence of world-class and internationally recognized experience.
The Officer concluded that the Applicant did not meet the criteria of a self-employed person based on her employment history. The Applicant had worked as a Russian drama teacher at Ventspils House of Arts in Latvia from 1993-2010 and as a full-time teacher at Discovery Academy in Canada since then.
Furthermore, the Applicant’s experience organizing festivals in Latvia does not constitute world-class experience. While such experience is of local importance, it is not internationally recognizable.
The Officer referenced a Google search in which he was unsuccessful in finding any information that would support the Applicant’s claim of world-class experience. The Court held that the Officer was reasonable to conclude that the Applicant had made unsubstantiated claims. The appeal was dismissed.
PREET DEEP SINGH DATTA 2012 FC 626 IMM-4032-12 MAY 23, 2012
The Canadian immigration Applicant was applying to obtain an injunction with regards to a federal Bill that has yet to be passed, therefore there is nothing to enjoin and nothing has yet occurred that is prejudicial to the Canada immigration application in question. The motion for injunction was therefore refused with costs of $750 payable to the respondent.
June
SOOK JUNG IMM-5113-11 2012 FC 693 JUNE 5, 2012
The Applicant in question applied as a dependent child as she is said to be battling depression. The Officer prudently reviewed the evidence presented to establish whether the Applicant’s dependency meets the criteria for a dependent child. The Officer perceived the absence of a letter from a medical specialist as a lack of evidence that the Applicant had pursued ongoing medical treatment since diagnosis, as the Applicant claimed status as a dependent child much later. Also, her condition was merely supported by a letter from Dr. S. Choe, who has been caring for the Applicant since 2005. In her letter, Dr. S. Choe confirms the Applicant has been depressed and homebound for two years. She also mentions that the Applicant experienced difficulty in finding a job due to her depression.
The Officer determined that the evidence presented did not satisfy this additional ground to be considered a dependent child. Especially considering that the Applicant had managed part-time work. The Court held that the Officer was reasonable in perceiving a lack of persuasive evidence that the Applicant met the criteria to be considered a dependent child. The appeal was dismissed.
SARABJIT SINGH SEKHON IMM-4657-11 2012 FC 700 JUNE 6, 2012
The Applicant in question applied for permanent residence following an offer for continued employment as a teacher at a school. The Applicant only appeared on the Employer’s payroll as of October 2010, when he was instructed to provide proof of employment. Additionally, his tax records showed an annual income of $33,523—which amounts to 24 hours a week—not full-time employment. The Officer expressed her concerns and the Applicant provided documentary evidence of income reduction based on time off due to illness and renovations at the facility, and an accounting error on the payroll. The Applicant even had parents corroborate his story by providing letters and photographs of the school.
The Officer rejected the accountant’s explanations and concluded that the evidence adduced did not verify that parents had paid tuition or that students had been educated in a proper classroom. The officer also remarked that the school’s address was in a residential area. The Officer never expressed her specific concerns about the school’s location and its ability to pay the Applicant’s salary. The Court found that the Applicant had addressed the Officer’s initial concerns and would have been unaware of any additional concerns. The appeal is allowed.
PHUANGPHEN GRUSAS IMM-5828-11 2012 FC 733 JUNE 12, 2012
The Applicant in question applied for a work permit for a cook position in a Thai restaurant. The position required three years’ experience as a specialized Thai cook in addition to formal certification as a cook. Though the Applicant was formally certified, the Officer found that the work experience she claimed to have was irrelevant to the position. An interview was conducted and the Applicant confessed that she had no experience as a cook, her restaurant experience was as a waitress. Naturally, the Officer decided that her experience as a waitress does not demonstrate she is qualified for the position as a cook. The job description in no way implies that her experience as a waitress would supplement the necessary experience as a cook. The Applicant requested that the Court recognize her formal credentials and other work experience as superseding her lack of experience as a cook. However, this is not the function of the Court. The appeal was dismissed.
July
HARKAMALJIT KAM NIJJAR IMM-238-12 2012 FC 903 JULY 19, 2012
The Applicants were suspected of marrying out of convenience in order to obtain Canadian permanent residence. The couple had conceived a child together and—had it not been for a miscarriage—would currently be sharing the responsibility for a sixteen month old child. However, the Officer discovered significant gaps and inconsistencies in the evidence adduced to support their marriage. Consequently, the Officer decided that the marriage was not genuine. The Court held that by overlooking important information, such as the conception of a child, the Officer had exaggerated these shortcomings. The Officer did not weigh the conception of a child against the gaps and inconsistencies in the evidence provided to support their marriage. The Court held that a reasonable decision regarding the genuineness of their marriage would weigh the conception of a child heavily into account. The appeal is allowed.
September
SHILPI SABLOK IMM-145-12 2012 FC 1069 SEPTEMBER 10, 2012
The Applicant claimed to be employed by a computer college run by her husband. The Officer conducted telephone interviews with the Husband and with the Applicant, and found that the information provided did not match. The Officer was unconvinced by the Applicant’s explanation as to why the information was incompatible. As the employer, the Husband would not have had any obvious motive to provide erroneous information.
The Officer believed that given her marriage to the employer, the Applicant had used unlimited access to office stationary to misrepresent her employment. Consequently, information obtained through the telephone interviews was more credible than the information provided in the supporting documents. The Applicant was given the opportunity to address the Officer`s concern in which ever manner she chose. The Applicant chose to submit additional documents which were then considered in comparison to the verbal information previously given by her Husband. The Court found that the Officer was reasonable in weighing the new evidence against that which had already been established. The appeal was dismissed.
JESUS OCTAVIO PEREZ ENRIQUEZ IMM-411-12 2012 FC 1091 SEPTEMBER 19, 2012
The Applicant had applied for a NAFTA work visa using a November 2010 employment offer from Mysteriously Yours Inc. The Applicant had previously worked as a management consultant with the company since January 21, 2008. He did not submit any documents to verify that his position as a management consultant was full-time. The only readable payslip demonstrated a maximum of six months of employment and did not include The Applicant’s role within the company. The Applicant submitted that he was laid off in January 2011 following the November 2010 employment offer. Overall, the Applicant had not been employed for a full year. Additionally, the 2010 offer of employment letter merely stated that the Applicant had worked for the company and that the permanent position was full-time. Therefore, it was reasonable for the Officer to believe that the Applicant’s prior position had been only part-time. The Officer found that there was no evidence that the Applicant had met the NAFTA work visa requirement of full-time employment for a full year. The Court upheld this decision, and the appeal was dismissed.
LI ZHI LI IMM-1444-12 2012 FC 1099 SEPTEMBER 20, 2012
The Applicant had applied for a temporary resident visa to visit his son who is a permanent resident. The Applicant`s property certificates appeared peculiar to The Visa Officer therefore, an investigation was conducted by the Anti-Fraud Unit. The certificates were found to be manufactured. The Officer held that the Applicant misrepresented his property holdings which had been presented as evidence of his ties to China. The Applicant`s son insisted that his father had submitted additional documents, such as hydro bills and the demolition agreement for one of the properties, to verify ownership. These documents remain undated, unsigned, and without a date of receipt. Furthermore, the Applicant did not keep copies of the documents themselves. The Court held that the Officer was reasonable in providing the Applicant with an opportunity to respond to his finding that the documents were manufactured. The Applicant did not provide a sufficient response to the Officer`s concern. The appeal was dismissed.
October
MOHAMMADREZA KHORASGANI ET. AL. IMM-2090-12 2012 FC 1177 OCTOBER 9, 2012
The Applicants had submitted counterfeit English test results in their application for permanent residence. In April 2012, nine cases which were substantially similar to the present case resulted in identical decisions made by Madam Justice Tremblay-Lamer. Like the previous Applicants, the Applicants in this case were Iranian citizens who had hired the same immigration consultant. The application was rejected once the Visa Officer identified the IELTS results as fake. The Court held that the submission of false English test results was not a genuine mistake on the part of the Applicants and therefore, did not merit an excuse. However, following the completion of the inadmissibility period, the Applicants may begin a new application for permanent residence. The appeal was dismissed.
BALJIT KAUR DHALIWAL IMM-1211-12 2012 FC 1182 OCTOBER 10, 2012
The Applicant had applied five times to sponsor her husband, Jaswant Singh Dhaliwal, to come to Canada permanently. Each application was rejected in turn based on a lack of evidence to support their marriage. The Officers believed that the couple had married out of convenience in order for Dhaliwal to gain access to Canada. The Applicant was now applying for a sixth time. The sixth application included the birth of the Applicant’s child in Canada, a change in circumstances since the fifth application had been submitted. The Applicant claims that Dhaliwal is the child’s father which has not been disputed. The Officer considered the birth of the couple’s child and decided that it did not constitute conclusive new evidence capable of overriding previous decisions. The Court upheld this decision, and the appeal was dismissed.
MARDON USMANOV IMM-1623-12 2012 FC 1238 OCTOBER 29, 2012
The Applicant in question applied for a study permit in order to complete a 24-week French as a second language program in Montréal. The Applicant is a citizen of Uzbekistan currently living in Russia. Documents were submitted to the effect that the Applicant had been accepted to the program and would be residing with his sister and brother-in-law during that time. The Officer was unconvinced that the Applicant would leave Canada at the end of his approved stay based on insufficient ties to Russia and a lack of rationality concerning his proposed studies. Considering The Applicant had been residing in Russia on a work permit and that he had said he was working as a tile installer, the Officer found the lack of proof of income demonstrated insufficient ties to Russia. The Officer had no such concern about the Applicant’s ties to Uzbekistan, where his father, brother and sister reside. Additionally, the Officer concluded that the Applicant’s intention of learning French to prepare him for a tile installation course was not realistic because a second language course would not prepare him for learning technical concepts. The Court upheld the Officer’s decision and consequently, the appeal was dismissed.
ZHENCHUAN XIE IMM-1881-12 2012 FC 1239 OCTOBER 29, 2012
The Applicant is a Chinese citizen who applied for a work permit for a position in a restaurant. He completed culinary studies in 2006 and has since worked as a Chef in China. The Applicant submitted a declaration explaining why he would not remain in Canada at the end of his authorized stay. The Officer was unconvinced that the Applicant would leave based on his lack of travel, his position being easily filled and his modest financial status. The Officer concluded that the Applicant’s ties to China were weak and that strong family ties to Canada gave him an incentive to stay.
In his declaration, the Applicant pledged to leave Canada prior to the expiration of his work permit. He declared that a return ticket to China would be provided by his prospective employer and acknowledged the consequences of staying in Canada illegally. The Applicant also cited family and his girlfriend as incentives to return to China. In reviewing the case, the Court found that the Officer did not weigh the Applicant’s declaration against the other evidence. The declaration was essential in determining that the Applicant would leave Canada at the end of his approved stay. The appeal is allowed.
November
GURPREET SINGH ET. AL. IMM-7785-11 2012 FC 1302 NOVEMBER 7, 2012
The Applicants in question had declared Gurpreet as a dependent child in their application for permanent residence. However, Gurpreet was deleted from the application because the Officer was unconvinced that he was the adopted child of Mr. and Mrs. Singh. A lack of family photos with Gurpreet did not help his case nor did the submitted adoption papers which had been registered only recently. While speaking with the Officer, Mr. Singh was given multiple opportunities to state that an adoption ceremony had taken place. Mr. Singh made no such statement and did not dispute the Officer’s claim that one had never occurred. Following the Officer’s removal of Gurpreet from the Application, Mr. Singh issued a letter stating that he would not protest the decision. Mr. Singh’s actions illustrate blatant acceptance that he was caught in a lie and had no defense. Consequently, the appeal was dismissed.
December
SUKHCHAINPREET SINGH SIDHU IMM-3327-11 2012 FC 1533 DECEMBER 20, 2012
The Applicant in question was found inadmissible for organized criminality following charges of drug trafficking. The Applicant argued that organized criminality was contingent on membership within a criminal organization, which he was not. The Officer rejected this claim and stated that the scope of organized criminality includes involvement of more than one individual in an organized criminal activity, which he had been by importing drugs across international borders. The Court held that the Applicant had bought a vehicle and a mobile phone, drove to the border, transported marijuana across the border, and delivered the marijuana to another vehicle, all in sequence of a drug smuggling operation. The Court considered the operation to be organized criminality and consequently, the appeal was dismissed.
THARSINI THIRUGUANASAMBANDAMURTHY IMM-1738-12 2012 FC 1518 DECEMBER 20, 2012
The Applicant was a 21 year old single woman from Sri Lanka. She had applied for a student visa four times prior and been refused each time. The Applicant had an aunt and grandmother in Canada. She had been unemployed since August 2009 and stated that her mother’s brothers would finance her expenses abroad. She sought to complete previous studies undertaken in Sri Lanka, at York University in Canada. She wished to obtain a Canadian degree to ensure employment within the Sri Lankan tech sector.
The officer noted that the Applicant’s uncles resided in Australia and the United Kingdom and suspected that she was merely trying to gain entrance to Canada. The Court held that transfers of funds from immigrants in wealthy countries to their family members in less developed countries are extremely common. Furthermore, the Officer’s concern was unreasonable based on the Applicant having provided proof of access to the funds required to support herself abroad. The Court also found that the Officer was unreasonable in establishing the Applicant’s weak ties to Sri Lanka based on the number of family members residing in Sri Lanka as opposed to the strength of the relationships between them. The appeal is allowed.
