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.
2013: January February March April May June September October
November December
2013
January
KEVIN DONALD STORDOCK IMM-3164-12 2013 FC 16 JANUARY 9, 2013
The Applicant requested to extend his Temporary Resident Permit indefinitely while his wife’s application for spousal sponsorship is processed. The Applicant had previously been convicted of a number of driving offences and possession of marijuana. He was issued a number of fines, which remained unpaid for several years. The Applicant was granted a Temporary Resident Permit in order to attend his brother-in-law’s wedding. However, the Applicant has remained in Canada since then and is currently requesting an extension to his permit in order to remain with his wife and daughter. When an Applicant has overstayed the limit of his Permanent Resident Permit, he must provide compelling reasons for an extension. The Applicant has not done so. He has merely stated his desire to remain with his wife and daughter. Unlike an H&C application, the Officer is not required to consider the best interests of the child in considering a Temporary Resident Permit. The Court held that even if the child’s best interest was taken into account, there was no evidence adduced to indicate how the Applicant’s presence in Canada would affect the child. This appeal was dismissed.
February
NADIA ZANCHETTA IMM-7573-12 2013 FC 195 FEBRUARY 28, 2013
The Applicant is a Canadian citizen who applied for sponsorship of her husband who is an American citizen. The couple has three children together who are Canadian citizens. The Applicant’s husband was convicted in New Jersey of burglary in 1995 and possession of a weapon in 1996. The husband has been living and working illegally in Canada since he entered as a visitor in 2005.
The Court held that the family situation would likely have outweighed the husband’s inadmissibility had it been based solely on his criminality. However, by intentionally misleading Canadian immigration authorities the husband demonstrated a blatant disregard for the law. Therefore, the Court would not award discretionary relief.
The Court found that the continued presence of their father would be in the best interest of the children. However, the best interest of the children was considered seriously but not dispositive since there was no evidence that the family could not live with the husband in the United States.
The husband attributed misrepresentation of his residential address and employment record to mistakes. However, the Court found that the husband lacked credibility and concluded that he had directly misrepresented material facts of his illegal stay and employment in Canada.
The Court concluded that the husband’s return to the United States would not cause disproportionate hardship since he was legally authorized to work in the United States. The appeal was dismissed.
March
KHATEREH MAHOURI IMM-5441-12 2013 FC 244 MARCH 7, 2013
The Iranian-educated Applicant applied for the Federal Skilled Worker program claiming she had medical credentials at the graduate level. She provided her diplomas and transcripts for her “Doctorate Degree of Medicine” and “specialty degree” issued by Shiraz University of Medical Sciences. The Applicant’s husband had submitted diplomas and transcripts for his “Doctorate of Medical Science” and “specialty degree” also issued by the Shiraz University of Medical Sciences. The Officer found that both the Applicant’s and the Applicant’s husband’s medical degrees and specialization degrees were at the bachelor’s level.
Despite the submission of degrees verifying that the Applicant and her husband were enrolled in Professional Doctorate Programs at the Shiraz University of Medical Sciences and the fact that the Applicant had passed her examinations in social medicine, there was no evidence that the bachelor’s level credentials were recognized at the graduate level by local authorities responsible for medical practice. The Officer concluded that the Applicant’s credentials did not satisfy graduate level criteria. The Court found that the Officer used proper discretion in reaching this decision. The appeal was dismissed.
SYED WAQAS ALI GILANI IMM-2969-12 2013 FC 243 MARCH 7, 2013. KANE J.
The Applicant was accused of marriage fraud following sponsorship by his wife. The CBSA conducted an investigation which led to the Applicant’s arrest following the discovery that the Applicant was not residing with his sponsor, but rather with his sister. It was also noted that his sponsor failed to advise authorities that she was married in her registration for the Ontario Disabilities Support Pension.
The Officer weighed the evidence adduced by the investigation against the Applicant’s assertion that he spent time at his sister’s home to help with her young family. The Applicant admitted to leaving his sponsor’s home temporarily in January 2011 following her miscarriage in November 2010 but claimed that the time apart was not intended as marital separation. Friends and relatives corroborated the Applicant’s story however; the Officer concluded that declarations made by individuals close to the Applicant were self-serving and unreliable. The Applicant’s account of his sponsor’s pregnancy and miscarriage was inconsistent with that of the sponsor. The Applicant’s phone bills were most likely issued to his sister’s home because he resided there. Additionally, the sponsor was unable to verify that she had made attempts to change her marital status on her Disability Pension registration.
The Court held that the Officer clearly addressed the concerns raised by the CBSA investigation in a letter sent to the Applicant and the Applicant made assertions in response. Therefore, there was no breach of procedural fairness. The appeal was dismissed.
ABU ASIM HAMZA IMM-3693-12 2013 FC 264 MARCH 12, 2013
The Applicant applied for the Federal Skilled Worker program under NOC 3112: General practitioners and family physicians. The Applicant submitted a written declaration detailing his work at his own clinic and an employment letter from Dr. Haroon, the Medical Superintendent at the Government Hospital of Karach. Dr. Haroon stated that the Applicant has been working at the hospital as a family physician, and that he has been performing the duties set out in the NOC. The Officer deemed the letter to be self-serving and found it insufficient without other supporting documents to establish the Applicant’s work experience.
The Court held that Applicants are not required to provide more than one employment letter to verify work experience. As long as a single employment letter covers the full scope of the main duties performed by the Applicant, an application can be deemed complete. Though the Officer was not unreasonable in having doubts as to whether the employment letter accurately portrayed the Applicant’s role, the Officer should have given the Applicant an opportunity to address her concerns prior to making a decision. The appeal is allowed.
TEJINDER SINGH IMM-2613-12 2013 FC 295 MARCH 22, 2013
The Applicant applied to retain permanent residency in Canada on the grounds that it would be in the best interest of his three children who live in Canada. However, the Applicant failed to comply with the residency obligations required for permanent residence status. He supplied a vague and lacking testimony to support his application. The Applicant’s testimony was notably insufficient regarding the details of his first marriage and the resulting children, his landing in Canada as well as his business dealings in both Canada and India. Additionally, the Applicant omitted to admit he is currently remarried since 2007 and has a son living in India despite numerous questions regarding his marital status and his children. Due to these issues, the Applicant’s testimony was considered to be neither credible nor trustworthy. The IAD felt that the Applicant’s children living in Canada would not be further negatively affected by their father’s continued absence as they have already experienced this for many years. The application was dismissed.
SAU LING TONG IMM-5918-12 2013 FC 312 MARCH 26, 2013
Officers reviewing applications are entitled to examine discrepancies in the evidence provided. The application in question was the Sponsor’s third time sponsoring a spouse from China. Given the Sponsor’s immigration application history, this was such a situation where the Officer was permitted to closely examine issues that in other applications would be seen as inconsequential. The Sponsor’s previous marriages were relatively short, being between 3 and 4 years in length. This lead to suspicions of whether the marriages were genuine or merely for immigration purposes. Adding to this suspicion was an inconsistency of why the Sponsor’s first marriage failed; documentation cited infidelity while the Sponsor explained it was because the couple disagreed on where they should live. In the application at hand, the Officer had suspicions on whether the Applicant was actually employed in Canada and on her intended residence upon arrival. When sponsoring a spouse for the purposes of permanent residency, the couple has the burden to explain the intricacies of their relationship; how they came to be and how coming to Canada is a part of their relationship. The Applicant and Sponsor explained their relationship in a manner which showed that the purpose of their relationship was permanent residency and not the continuation of their connection. Should any gaps be present in the information provided, the couple must supply sufficient explanations for their history discrepancies. Therefore, the application was dismissed.
EMAD AGEEB EKLADIOUS MANSOUR ET. EL. IMM-4492-12 2013 FC 343 APRIL 5, 2013
The Applicant applied for permanent residence under the NOC category 0711, Construction Manager. The Respondent argued that the Applicant had not provided any evidence in his application demonstrating work experience as a “Construction Manager” under NOC -0711. To support this claim, the Respondent provided case notes included in a CAIPS Notes entry. CAIPS Notes (acronym for Computer Assisted Immigration Processing System)is an automated system used to process immigration applications outside of Canada. The Applicant included in his application package a letter from his long standing employer explaining the evolution of his employment; from Civil Engineer to Construction Manager. The duties outlined in this employer’s letter clearly match and overlap the job task examples required under this job category. The Visa Officer who reviewed the Applicant’s application did not include this letter in his reasoning. The employer’s letter can be understood to be a job description. The issue was regarding form and not substance. The Applicant’s application was allowed.
JULIUS FRANCIS PINTO IMM-4585-12 2013 FC 349 APRIL 8, 2013
The Applicant sought permanent residence under the NOC category 0111, Financial Managers. He supplied a thorough job description and three references to support his application. The Applicant previously held the position of “Manager, Corporate Banking” at HSBC Dubai. The Officer responsible for reviewing the application rejected it and supplied a brief explanation for her reasoning. The Officer felt that the job description and tasks for a Manager of Corporate Banking did not match the NOC-0111 requirements even though there were some similarities. Later the Officer provided an affidavit giving additional explanations for the application’s rejection. The judge ruled this information inadmissible because it was unnecessary; the prior brief explanation was sufficient. According to the judge it was obvious the Applicant’s position at HSBC was not that of a Financial Manager. Therefore the Officer’s decision stood; the Applicant was rejected.
OLUDARE AYODELE KOMOLAFE IMM-4639-12 2013 FC 431 APRIL 25, 2013
The applicant is employed as a Quarry Supervisor in Nigeria. The Agent felt that the applicant did not complete the actions outlined in the lead statement for his occupation but did not explain on what basis this conclusion was founded. Three months later the Agent made an affidavit explaining her reasoning. Doubt was cast on its reliability and it was found to be inadmissible. When comparing the NOC 7372 (“Drillers and Blasters – Surface Mining, Quarrying and Construction”) with the tasks the Applicant claimed to have completed, several of them can be found to correspond to each other. It is the Agent’s responsibility to determine if the tasks of a worker and of a NOC Code are compatible and to provide his or her reasoning and not the Judge. Here, the Agent stated her conclusion and provided no explanation. The Judge references the Newfoundland and Labrador Nurses Union case ([2011] 3 SCR 708) to show how the lack of clarification by the Agent could be explained by the Judge or the court only if there are some indications or hints present. Seeing as here there were no indications as to the Agent’s reasoning, the flexibility afforded by the Newfoundland and Labrador Nurses Union case does not apply. The Application was allowed.
GRANT PETER KIMBALL IMM-8259-12 FC 428 APRIL 29, 2013
The Applicant is a 68 year old American Citizen. He was employed for a number of years as a Software Engineer in Canada. However, due to corporate restructuring, the Applicant found himself unemployed in 2010. After an unsuccessful 22 month employment search the Officer came to the conclusion that the Applicant was unlikely to establish himself economically in Canada. The Applicant did not provide details into the circumstances of his job search. Due to this lack of evidence the Applicant cannot claim he was denied certain rights associated with procedural fairness. Given the circumstances it is only logical to conclude that the Applicant is unlikely to find work given the length of his job search. The Judge drew a comparison to the Philbean case where a substituted decision based on the failure to engage in a successful job search was seen as reasonable. The Philbean case concerns an Applicant’s ability and willingness to find employment. Based on age, previous retirement, lack of steps towards obtaining certification and employment, and a lack of positive LMO for the Applicant’s husband the Philbean Application was denied. The Judge at hand therefore applied the same reasoning as the Philbean case. The Court’s role is not to be a substitute for an Officer and the Officer reviewing the Application’s negative decision did not lack reasoning, transparency or intelligibility. The Application was dismissed.
May
CARLOS SANTANA IMM-9085-12 2013 CF 477 MAY 7, 2013
The Court concluded that the Applicant did not commit an isolated criminal act but rather is a multiple offender given his series of previous convictions. These convictions include trespassing at night and possession of drugs and other illegal substances. The Applicant claims to no longer have ties to his home country of Venezuela but admits to having the necessary language base for the country. The Applicant did not submit proof that his psychiatric condition could not be treated in Venezuela. While the Applicant has not reoffended since 2008, he has not demonstrated his rehabilitation given his continued use of drugs and alcohol. In comparison to the facts outlined in the Khosa case, the Applicant’s level of establishment in Canada and its effect on his Canadian family are seen to be less important. The Application was dismissed.
LIDIA FAVELUKIS IMM-10500-12 2013 FC 480 MAY 7, 2013
The Applicant sought to remain in Canada on the grounds that it would be in the best interest of her grandchildren. The limited information submitted to support this claim included: the Applicant and her grandchildren are very close, they spend a lot of time together and the children do not want the Applicant to return to Israel. While the Officer’s decision may not have been as clear as it could have been, he did consider the presented elements and weighed the benefits of the Applicant remaining in Canada against the potential negative impact on her grandchildren. The conclusion was that while the separation of grandmother and grandchildren would be difficult, the effect would be lessened by the ease of travel between Canada and Israel; visas are not required to visit and the Applicant can return when desired. Given the limited number of submissions based on the interests of grandchildren, nothing more was required in the Application. The Application was dismissed.
HD MINING INT’L LTD ET AL. IMM-11316-12 2013 FC 512 MAY 21, 2013
The case assesses whether the Officer was reasonable in his positive LMO decision and it is the first time a positive decision under the Temporary Foreign Worker Program has been challenged. The Officer awarded positive LMOs and suspicion was raised whether the Officer was pressured by his superiors to award a positive LMO. The judge found that the Officer was not fettered in his decision. It was raised that the Officer’s assessment was potentially unreasonable with respect to the requirements of NOC 8411 (“Underground Mine Service and Support Workers”) and it was found that when comparing the NOC 8411 requirements against the job posting in question, there was no real deviation. There was a labor shortage and the Applicants’ claims that the job requirements were excessive were unfounded. Part of having a Temporary Foreign Worker Program is that it is temporary in nature with a plan to transition to a Canadian workforce. The transition here will occur after the expiration of the positive LMO and will be established to the satisfaction of a different Officer. The central concern is regarding if the Applicants failed to make reasonable efforts to hire Canadians. Due to the labor shortage in the mining industry and even though two firms were engaged in recruitment efforts, the low yield of Canadian applicants was reasonable. A small number of Canadian interviewees is not sufficient to raise such suspicions. The Officer completed his task properly which led the Judge to dismiss the Application.
June
KONSTANTIN ULYBIN IMM-5431-12 2013 FC 6269 JUNE 11, 2013
The Applicant is a Russian citizen with permanent residency status in Spain seeking to gain Investor status in Canada. The Applicant was convicted in Spain of offences relating to workers’ rights and gross negligence manslaughter. The Applicant claimed that the Officer erred in finding the essential equivalencies between his offences and those in the Canadian Criminal Code. The Officer sought an NHQ (National Headquarters) opinion to help him in his determinations. The NHQ opinion was not related to the Applicant which lead to a challenge in his meaningful participation in the decision making process. The Applicant did participate through his knowledge of the allegations and his submissions regarding his offences. While procedural fairness in visa cases is deemed to be on the lower end of the spectrum; it was deemed that there was no such breach. The Officer determined the Applicant was in a position of authority due to his ability to direct the commencement of work without the proper safety precautions in place. The Judge found that the Officer’s view was consistent with case law and the Spanish statutes. Criminal negligence occurs when a person’s behavior and actions are markedly different from that of a reasonably prudent person placed in a similar situation. The due diligence associated with criminal negligence was not ignored by the Officer. Despite the presented mitigating factors, the Officer was open to conclude that the Applicant took unreasonable risks. The Applicant did not satisfy his duty to prove that the Officer erred. The Application was dismissed.
JASPREET SINGH SANDHAR IMM-10810-12 2013 FC 662 JUNE 20, 2013
The case surrounds the genuineness of an arranged marriage organized by members of the couples’ extended family. The IAD concluded that the marriage was solely for the purposes of gaining status. The factors that led the IAD to this conclusion include: the agreement of the bride’s parents to marry their only child to a divorcé, the haste in the engagement and wedding ceremony, the high incompatibility between the couple and the lack of evidence of an on-going relationship since their wedding. The Judge was persuaded by the Gill case (2010 FCC 122) which outlined the necessity to not analyse arranged marriages through a western lens; such a marriage will automatically appear to be non-genuine. In response to the IAD concerns regarding the prior divorce, the bride’s family had knowledge of it and it was not a determining factor for the family. While the IAD focused on the incompatibilities of the couple, they omitted to highlight their important common bonds: language, religion, age and background. The Gill case states that the presence of a child easily determines the genuineness of a marriage. The Judge found that in no way is this the determinative factor. The application was allowed.
TSERING LHAMO IMM-7302-12 2013 FC 692 JUNE 20, 2013
The Applicant indicated that he had two biological children on his Application. DNA testing revealed that one child was the son of his wife and her former husband. The Applicant completed his Application in this manner because he was unaware that non-biological children can be included as family members. Being truthful is a requirement when completing immigration applications. However, a combination of being truthful and being not inadmissible doesn’t automatically result in a visa being granted. The Applicant argued that his lack of truthfulness should not induce an error in his application because his son is admissible to Canada, regardless of biological status. According to Section 11 of the Immigration Act, officers have discretion in their decision to grant a Visa and therefore it is speculative for the Applicant to submit that had he told the truth he would have been granted a visa. The application was dismissed.
July
SUMAN RAJ SAPKOTA IMM-8311-12 2013 FC 790 July 15, 2013
The Applicant was a member for 18 years of an organization that was known to be involved with the commission of crimes against humanity. The issue was that the Applicant remained a member of the group despite their continued human rights abuses. The applicant did not provide proof that he disapproved of the group’s actions. The initial decision was clear and meticulous thus leading to the application appeal to be dismissed.
MUHAMMAD NAVEED MANFA IMM-7940-12 2013 FC 799 July 18, 2013
The Applicant and his brother wanted to build an interfaith English school in their home country. The designated land was removed from the brothers’ property. When examining the application, the board deemed the removal of the plot of land to be the result of a simple land dispute. The examining board did not connect the removal of the land with potential religious and or political motivation. The appeal gave reason to the Applicant because an issue at the core of the application cannot be ignored. The application was allowed.
GABOR HORVATH ET AL. IMM-8700-12 2013 FC 788 July 15, 2013
When a court is reviewing a decision, it is highly important that the documentary evidence used to come to the previous conclusion is available. In the case at hand, the documents provided to the reviewing court had discrepancies and incomplete elements. With such incomplete information, the reviewing court could not properly dispose of the application for judicial review. This situation is a breach of natural justice. Given that the court was not in a position to draw a conclusion on the state protection analysis, the application was allowed.
DARLEY SANTANILLA ET AL. IMM-8790-12 2013 FC 656 June 14, 2013
The Applicant feared that if he returned to Columbia, he would be killed or harmed by FARC because he had resisted their previous attempts at extortion. There was evidence before the RPD in the form of a UNHCR report in 2005 stating that anyone deemed to hold opposing political views will be extorted of kidnapped. This report was specifically drawn to the RPD’s attention and the Applicant’s council requested that the RPD consider perceived political opinion as a nexus ground. There is no debate that the applicant had no actual political opinion, and this was not addressed in the Decision when they should have been. The UNHCR report contradicts the RPD’s conclusion on the lacking of a political nexus. The RPD failed to fully consider political nexus and abuse under section 96 of the Act and moved directly to section 97 considerations. The application is allowed.
MOHAMAD RASHID YOUSIF IMM-8790-12 2013 FC 656 June 14, 2013
The applicant received a doctor’s note that confirmed his story of being detained and abused by Syrian authorities. The respondent asserts that the note should be given less importance because the applicant failed to mention his visit to the doctor with an unclear reason why he did not mention it. The court disagrees based on the fact that the note is still a significant piece of evidence. The note’s authenticity was no questioned, and even though the applicant failed to mention the visit, the weight of the note should not be affected. The Board committed an error by assigning little weight to a crucial piece of evidence without justification. The application was allowed.
LUIS FERNANDO RAMOS AGUILAR IMM-9778-12 2013 FC 798 June 26, 2013
The Board believed the applicant’s testimony on facing imminent and targeted risk of death or harm by criminals for the reason that the applicant is Mexican. The Board must make a decision based on documentary evidence that Mexicans face higher risk by criminals than the rest of the general population. The conclusion cannot be simply based off the simple proposition that they face a higher risk. The Board failed to accurately describe the risk facing the applicant and how prevalent the risk is in Mexico. The Application is allowed.
October
NOUH HUSSEIN ABDAKKA HAMAD ET. AL. IMM-7176-12 2013 FC 827 July 29,2013
The applicant has a brother in Canada who is prepared to fund his and his family which he completes his two-year studies in Canada. The applicant applied for a temporary resident visa, as did his wife and children, and both were initially refused. The decisions were overturned for reconsideration based on the Officer’s several false decisions. The Officer concluded that the applicant was not truthful in his claims to come to Canada for the purpose of studying and had other intentions for entering Canada. The Officer’s notes in an interview were different than the notes taken by the applicant in the same interview. The applicant was under an affidavit, and the officer was not. Other evidence that the officer came across was based on speculation rather than evidence. The applicant is entitled to an intelligible decision that reflects the entirety of the case before the officer comes to a decision. The application is allowed.
IQBAL KHOWAJA IMM-5205-12 2013 FC 823 July 26, 2013
Issue of whether the Officer reasonably applied the NOC requirements to the applicant’s evidence. It is not expected that detailed responses be given to each application that has been declined. The applicant application was dismissed on the basis that they provided insufficient evidence that their job matched the main duties listen in NOC 0213 descriptions. In the absence of clarity, the Officer was unable to confirm the information that the applicant was a computer and information systems manager. Further reason for refusal could have been included in the Officer’s letter of dismissal to the applicant, however, the reason given was satisfactory enough. There was no breach of fairness and the Officer’s decision was reasonable. The application is dismissed.
MARIA LUISA RUEDA Y SOTOMAYOR 2013 FC 962 IMM-12757-12 September 18, 2013
The applicant’s (mother) removal from Canada had lead to medical, physical, mental and emotional instability. The applicant’s need to remain in Canada is based on the applicant’s daughter’s need for her mother to remain in the country. The applicant is requesting H&C for her own needs as well as her ability to meet the needs of her daughter in Canada. The applicant meets her daughter’s daily needs, which would not be able to be met if the applicant could not remain in Canada. If the applicant is returned to Mexico, the only option for the daughter would be institutionalization in Canada. The court viewed that the officer did not consider the evidence in its entirety and the challenges that would be faced upon the return of the applicant to Mexico. The application is allowed.
November
MARYAM ATTARZADEH NIYASARY IMM-3136-13 2013 FC 1035 October 11, 2013
The applicant applied for a multiple-entry temporary resident visa (TRV) that would allow her to visit her husband in Canada. The Immigration Officer did not believe that the applicant would return to her country of origin upon the expiration of her TRV, so her application was denied. The applicant had previously applied for a TRV and had been denied with a reasonable explanation by the officer. Upon this application, the officer failed to provide an explanation as to why the application was denied. Accordingly, the decision was deemed unreasonable and the application was allowed.
KULDEEP KAUR IMM-1462-13 2013 FC 1023 October 10, 2013
The applicant is for permanent residence in Canada. The “fairness letter” that was sent to the applicant states that their son’s educational documents have been verified to be fraudulent. This letter was sent on November 9th, but there was no response by the applicant since this letter was written. There was no evidence that the school board was contacted, and it is the board that issued the certificates. Other than that, there was no further evidence to show that the certificates were fraudulent. The applicant has not responded to the procedural fairness efforts. It is seen that the applicant has remained silent since the date that the letter was issued. The decision to declare the applicant inadmissible because of misrepresentation was influenced by the lack of response to the procedural fairness efforts. However, there were letters from the applicant that clearly stated that a response to the concern would be coming shortly. Despite that, the respondent concluded that the lack of response to the November 9th letter is reason for denial. There is confusion why the respondent was in a hurry to conclude a case of permanent residency. There are other documents that support the contention that the applicant’s son attended university, and therefore complete high school, yet the respondent considers that the misrepresentation includes material facts that could have induced an error in the administration of section 40 of the Act. Even though the respondent received the two letters for an extension of time, no response is given and a final determination was made. The decision of the respondent remains unexplained and there was unfair lack of communication with the applicant. The applicant was allowed.
HANAN FOUZI AHM EL ATTAR IMM-11342-12 2012 FC 1012 October 8, 2013
The record that the panel received stated that she only spent 211 days in the five-year period. The respondent’s council stated she was in Canada for 660 days, which is within the days allowed by the IRPA. The respondent filed an Appendix that submits summaries of evidence that she was in Canada for the proper amount of time according to the Act. The applicant argued that the appendix was inadmissible because it includes new evidence, which is not admissible on a judicial review application. The central issue is that the amount of days the respondent needed to have been in Canada to retain her permanent resident status contradicted the requirement of section 28 of the IRPA. There is no way of knowing how the division reached is conclusion even if the record supports the conclusion. That is why the decision must be set aside. The Minister’s application was allowed.
PARWINDER SADANA T-1568 12 2013 FC 1005 October 2, 2013
The applicant was a member of the Nexus program where he entered Canada through the Vancouver International Airport. Without declaring in his E311 Customs Declaration Form, he carried $10,000 Canadian in his carry-on luggage. This declaration is required under section 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17. The applicant blames ongoing emotional distress for his failure in reading this section. The applicant also stated that he mentioned to a CBSA Officer of his possession prior to its discovery, but there was no proof to this statement. Based on the fact that a traveller’s subjective intention is irrelevant when failing to report currency or goods, the decision to revoke the applicant’s Nexus card was reasonable. The application is dismissed.
December
JIA FENG WEN IMM-730-13 2013 FC 1159 NOVEMBER 14, 2013
The Applicant was included as an accompanying dependent on his father’s permanent residency application through the Quebec Investor Class. The Canadian High Commission in Hong Kong, to which the application was submitted, was not satisfied that the Applicant could be defined as a dependent child, despite filing documentation that confirmed he was a full time student and met the definition. In response, the Applicant provided both a transcript confirming his grades and a certificate confirming that he had studied Business Administration from September 2006 to July 2007 at Jiangmen Polytechnic College. The Applicant was then rejected based on a suspicion that he may have misrepresented his school attendance, but the Applicant was not provided an opportunity to explain the discrepancy and respond to the concerns about potential misrepresentation before the rejection was issued. The Judge agreed that the denial of the Applicant’s opportunity to respond to the suspicions constituted a breach in the duty of fairness and the application was allowed.
MAHMOUD SHAABAN IMM-11945-12 2013 FC 1104 OCTOBER 29, 2013
The Applicant applied for permanent residency in 2006 as a Skilled Worker with an employment offer from a Canadian company that was to remain valid until February 2013. An Immigration Officer evaluated the Applicant in 2009 and he was granted 0 points for his employment offer. In 2010, the Applicant requested that his application be reconsidered and the Canadian employer confirmed to the Officer his interest in hiring the Applicant. When the Officer contacted the employer in 2012 to confirm his interest in hiring the Applicant, the employer informed the Officer that the job offer was no longer valid. The Applicant argued that the communication between the Officer and the employer constitutes “extrinsic evidence” and that he should have been given an opportunity to respond to it. The judge found that the communication between the Officer and the Employer did not constitute extrinsic evidence and that it was proper and predictable of the Officer to confirm with the employers whether or not the job offer was still valid. The application was dismissed.
MOJTABA ESMAILI IMM-11086-12 2013 FC 1161 NOVEMBER 14, 2013
The case assesses wrongdoing on behalf of the Immigration Officer in providing a reasonable explanation for the rejection of the Applicant’s application. After the application was rejected, the Applicant’s representative, a consultant, contacted the Canadian Embassy in Ankara to seek reconsideration and an opportunity to provide further documentation, and to claim that procedural fairness had been breached in his case. The embassy did not respond to this communication. The Applicant initially relied on a consultant for assistance with his application, but requested an extension on his application after retaining advice from a law firm and learning of deadlines that affected his case. The judge agreed that an extension should be granted because the Applicant has an arguable case, the Officer provided no reason for rejecting the Applicant’s proof of employment, and because the Officer contributed to the confusion of the Applicant and his consultant by not responding to the consultant’s letter. The application was allowed.
OLGA CAUIA IMM-824-13 2013 FC 1125 NOVEMBER 6, 2013
The Applicant was issued a removal order due to a finding by the Officer at she undermined her credibility by knowingly misrepresenting herself on her initial Temporary Resident Permit application. Despite claiming on the initial application that she intended to return to Moldova and to her fiancée, when questioned by an Officer the Applicant stated that she intended to stay in Canada to help raise her sister’s baby and to escape the political unrest in her home country. When assessing the Applicant and her sponsor, the Officer found that the answers of the couple were non-committal and suggested limited knowledge of one another. The Officer found that the Applicant had limited knowledge of the sponsor’s finances in the period they claimed to have been a couple and that the Applicant and the sponsor did not discuss his children, among other inconsistencies. The judge ruled that these inconsistencies are significant in assessing the daily life of the couple, and the application was dismissed.
DOUGLAS GARY FREEMAN IMM-6304-12 2013 FC 1065 OCTOBER 23, 2013
The Applicant had been living in Canada under an assumed name for approximately 30 years after skipping bail and fleeing to Canada. He had been living in Canada and worked, was married, and raised children without legal status. He was extradited to the United States, but in 2008 his Canadian wife sponsored him to become a Canadian permanent resident. He was deemed inadmissible and his application was denied. There were issues of credibility in his case, as there was evidence of membership in the Black Panther Party despite his sworn denial of membership. While the Applicant had the opportunity to respond to the Officer’s concerns through written submissions, he was never afforded a face-to-face interview with Canadian immigration officials and the Officers assumed him to be a liar without ever meeting him. The purpose of an interview is to give Visa applicants a chance to persuade immigration officials of their position and to give the officials an ability to assess the applicant’s credibility. The judge found that the Applicant was subject to a breach of procedural fairness, but that the actions of the Officer did not demonstrate bad faith or an abuse of power. The application was allowed.
SIEW LAN CHU IMM-9123-12 2013 FC 1057 OCTOBER 22, 2013
The Applicant was denied Canadian permanent residence under the in-Canada spousal class due to contradictory evidence and inaccurate explanations. The couple provided inconsistent answers about a variety of aspects of their relationship, including their cohabitation before marriage, the circumstances of the marriage proposal, and the events following the marriage ceremony. The husband also did not know the wife’s first language. The Judge found that these contradictions were highly relevant and had a major impact on important matters, and the application was dismissed.
2014
January
FATMA AHMED ET. AL IMM-914-13 2013 FC 1083 OCTOBER 25, 2013
The Applicant was denied after applying for Temporary Resident Visas (TRV) for herself and her five children to join her husband, a PhD student at the Ecole Polytechnique de Montreal who had received his TRV as a student in 2011. The applications were denied as the Officer was not convinced that the Applicants would leave Canada at the end of their stay due to their rapidly decreasing bank balance and failure to demonstrate that they are well established in and have sufficient ties to Egypt, their home country. The judge ruled that the Officer’s decision was reasonable and the application was dismissed.
MANAV JALOTA IMM-3349-13 2013 FC 1176 NOVEMBER 19, 2013
The Applicant was denied while applying for a restoration of status after losing his study permits. The Applicant followed the Student Document Checklist, which does not require submitting any financial information, in his application to restore status. He noted on the application that he had funds for the semester and stated that he was willing to supply evidence of his financial status. The Applicant was denied and cited reason was a failure to submit proof of funds, previous transcripts, a college letter of acceptance, and an explanation of the period he was absent from study, although these documents were never requested. The judge found this to be a breach in procedural fairness, and found that the misleading checklist document is a distinct instance of a breach in procedural fairness. The applicant’s status was lost over concern he was not a genuine student, not for financial reasons, so it was reasonable that he addressed academic issues and not financial issues in this restoration of status application. The judge found that if the Respondent took issue with the documents provided, it was obligated to state those issues. The application was allowed.
FAHMEEDA NOREEN IMM-2035-13 2013 FC 1169 NOVEMBER 18, 2013
The Applicant was denied a visa despite the fact that she had obtained a nomination under the Saskatchewan Provincial Nomination Program due to concern that she would not become economically established in Canada. The Applicant planned to work as a teacher in Canada but did not have the English language score required to become a teacher, despite her English level being above the program minimum. The Applicant responded to this concern by providing updated and improved IELTS scores and a six point plan explaining how she would become economically established. Included in the plan was the assertion that she would work odd jobs, but she did not have a job offer of any kind and the Officer was not convinced that the Applicant could become economically established under this plan. Additionally, while the challenges of improving her English and becoming a teacher were addressed in the Applicant’s plan, she failed to provide a timeframe for the accomplishment of these goals. The Application was dismissed.
RASHID SHAFIQ IMM-10241-12 2013 FC 1180 NOVEMBER 21, 2013
The Applicant was denied as a skilled worker on the basis that he did not meet the educational requirements for the occupation he applied to, Computer Information Systems Manager (NOC 0213). The Applicant was denied because he failed to provide evidence describing the courses he took to earn his degree. He did provide a letter from the University of Punjab stating that he met all requirements for the Bachelor of Arts, which the judge ruled can be interpreted as the equivalent of a statement confirming that he completed the full program of study. The application was allowed and the Applicant will be reconsidered.
MARYAM MORADI IMM-1379-13 2013 FC 1186 NOVEMBER 26, 2013
The Applicant was denied under the Federal Skilled Worker Program on the grounds that job titles are not evidence of having performed specific duties, as the Applicant did not provide employment letters that indicated she had performed specific duties. The Applicant had performed some duties that fell under the Accountant Occupation (NOC 1111), and had performed some duties that fell under the Bookkeeper or Accounting Clerk Occupation (NOC 1231). If an applicant has performed some of the duties under the Accountant occupation, this does not necessarily mean that the “pith or substance” of the work performed is in line with the Accountant occupation. The overlap in the positions was not sufficient for the Applicant to be defined as having experience in that position, so the Officer’s decision is not unreasonable. The application was dismissed.
