PICKTON ALFANSO EARL V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) OCTOBER 8, 2008
The visa Officer decided not to award any points via the Canadian immigration point system for the educational credentials of the Applicant’s wife on the basis that the educational institution was not accredited. The Officer used verifiable and credible local government sources, which are regularly used to verify whether educational institutions are accredited by the country where the documents were issued. The decision to award 0 points on this basis falls within the range of acceptable or reasonable outcomes based on the evidence. Visa Officers are justified in using information found on official websites of government, commerce, industry or educational institutions when making their assessment. This information could be challenged however, if unchallenged, it can be relied upon. In this case the Officer’s search was acceptable and remained unchallenged. The exercise of her discretion in considering the evidence to verify the validity and authenticity of the establishment diplomas and for the purpose of assessing whether to substitute the evolution in the points actually awarded, is justifiable. Canadian immigration application was dismissed.
RENATA RUIZ LORANCA ET. AL. V CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) OCTOBER 21, 2008
The Applicant, applied for an authorization to return to Canada as a Canada permanent resident. The Officer determined that the Applicant was inadmissible. The Applicant contested this decision on the basis that she was not given the opportunity to formulate a request on humanitarian and compassionate grounds (H&C). The court determined that the Officer is not obligated to provide the Applicant an opportunity to formulate a request on H&C grounds. The Officerdoes not have a legal duty to inform an applicant for a Canadian permanent resident care of all other possible avenues. The Applicant’s permanent resident Canada application was resultantly dismissed.
SURESH TERRENCE LACKHEE v. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) NOVEMBER 17, 2008
The Applicant requested substituted evaluation, because he had insufficient points, as calculated through the Canadian immigration point system to meet the minimum requirements. The Officer was satisfied that the points that were awarded were an accurate reflection of the likelihood of the Applicant’s ability to become economically established in Canada. The Applicant was a skilled tradesman with expertise in a field that is in high demand in Canada.
The Applicant’s available settlement funds rose from $25,000, the amount cited in his initial application filed in 2004, to approximately $90,000 at the time of assessment. Additional documentation about annuity and insurance premiums owned by the Applicant and his wife were likewise submitted to the visa office. The Officer did not refer to this information in the Refusal, neither in her refusal letter nor her notes. Among the considerations pertinent to assessing “the likelihood of the ability of the skilled worker to become economically established in Canada” is settlement income. The Officer’s failure to make any reference to the considerable assets available, in either her decision or her notes constitutes a reviewable error. Application for immigration to Canada under the federal skilled worker category was granted.
DI TANG LI v. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) NOVEMBER 18, 2008
The Applicant applied for a Canada work permit from China, he was single and the Officer concluded that because he had little family in his home country he did not have sufficient ties to ensure departure from Canada at the end of his authorized stay. Being single, in a country with a one-child policy, does not permit the Officer to automatically conclude that the Applicant has limited family ties. The Applicant’s father, mother and brother all live in China. This does not make it more likely that the Applicant will want to stay in Canada, let alone overstay. This conclusion should have called for a further investigation by the Officer of the Applicant’s family ties and establishment. The court also mentioned that there is no statutory right to an interview. However, procedural fairness requires that an Applicant be given the opportunity to respond to an Officer’s concerns under certain circumstances. When no extrinsic evidence is relied on, it is unclear when it is necessary to afford an Applicant an interview or a right to respond. An interview would have been appropriate for him to explain the extent of his family ties in China. The visa Officer’s failure to give the Applicant an opportunity to respond to his concerns, on the facts of this case, amounted to a breach of the rules of natural justice. The Applicant’s Canada immigration application was therefore granted.
HUGO FRANKLIN VILLANUEVA CRUZ V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) DECEMBER 1, 2008
The Applicant had one conviction for drug trafficking and had no prior convictions. The Applicant had been granted early parole as his parole officer stated that he was a strong candidate for reintegration. The Officer concluded that because the Applicant was motivated to commit the offence by financial stresses, there was no evidence demonstrating that he would not re-offend. However, the officer failed to consider that the Applicant had made arrangements to address the financial stress by securing a job in the construction industry upon arrival. The Officer also concluded that the Applicant was “submerged with associates in the drug trade”. There was no evidence of this, even though the Applicant had admitted to, at the time of the crime, associating with participants in the drug trade as well as to having used cocaine. The court concluded that the Officer did not properly consider the evidence before her, therefore the Canadian immigration application through criminal rehabilitation was granted.
PARATIMA VASHISHAT ET AL. V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) DECEMBER 4, 2008
In this case the court reiterated its position in Colaco where it held that if a federal skilled worker Applicant can establish that their admissibility to Canada will not likely cause an excessive demand on social services, there is no reason to refuse that Applicant. The court also reiterated its position in Hilewitz v. MCI, in which it was established that the anticipated demand on the public purse must be considered in conjunction with the Applicant’s circumstances, including the extent of the family’s willingness and ability to contribute time and resources to the individual’s care. In this case the Applicant’s family stated it was prepared to make alternative arrangements to provide employment for him on a farm which would attenuate any anticipated burden or excessive demand on social services. The court held that the IAD failed to recognize these alternative arrangements and only focused on the family’s ability to pay. The IAD therefore did not properly consider the Applicant’s actual circumstances when determining what demands will be made on Canada’s services. The Applicant in question’s Canadian immigration application was therefore allowed.
ALI AKBAR V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) DECEMBER 9, 2008
The Officer was not satisfied that the Applicant’s spouse’s degree from the UK was genuine. The London visa office had been processing applications for applicants residing in the Gulf since the 1990s and had expertise on diplomas issued within that region, including Pakistani education. In the past the visa office had received a significant number of fraudulent diplomas issued by schools in the UK. The court explained that while this is a good reason to challenge the credentials it is not an evidentiary factor. At the interview the Officer noted the spouse’s lack of knowledge about her degree. The Applicant was advised of the Officer’s concerns, due to procedural fairness and was given the opportunity to respond in writing and at the interview. Although the Applicant’s response was submitted after the deadline, the evidence was considered and the Officer concluded that it did not disabuse her of her concerns. There was no breach of procedural fairness and the decision was not perverse or capricious and was not based on an important mischaracterization of material facts. The Applicant’s immigration Canada application was resultantly dismissed.
ABOULLA AHMAD AL TURK V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) DECEMBER 18, 2008
The Applicant claimed that he scheduled an IELTS exam but did not provide any proof that he notified the Visa Office of the date. The Officer attested that she was unable to locate any proof of registration and that no proof was ever received by the Visa Office. Having noted that the test results were not submitted within the prescribed deadline, the Officer denied the Application. The court determined that the Applicant was negligent in not ensuring that the Officer had received his proof of registration and ensuring that she was made aware that the IELTS test had been rescheduled and that the results would be as a result delayed.
The Applicant also argued that it was unreasonable for the Officer to conclude that he only possesses a basic level of English language ability considering that he studied for 4 years and received all of his course instruction in English. Educational experience does not conclusively establish that the Applicant had either a moderate or high level of abilities in the English language. He may have been able to pass all of his course work with only a basic level of English language abilities. The Officer took the Applicant’s education into account but found it to be insufficient for the purposes of demonstrating a moderate to high level of English proficiency. The writing samples provided by the Applicant do not prove as such that he wrote these samples and that someone else could not have written them. The Officer’s assessment of the Applicant’s English proficiency was therefore reasonable. The Applicant’s Canadian immigration application was dismissed, as the Applicant did not meet the Canada immigration requirements.
ARFANA ROOHI V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) DECEMBER 22, 2008
The Applicant submitted an Application under the federal skilled worker category and had obtained the minimum score of 67 points through the Canadian immigration points system. The Officer noted in her affidavit that the Applicant had difficulty communicating in English and that her work experience as a teacher was limited. The Officer therefore concluded that the points she had obtained were not a sufficient indication that the Applicant would become economically established in Canada. When Officers substitute their evaluation on the ability of an applicant to become economically established in Canada, their evaluation must be comparable to the evaluation they are displacing. The skilled worker Canada program is structured as an objective assessment process designed to achieve consistency in the processing of Canadian immigration applications. Substituted evaluations may result in a negative or a positive evaluation, the objective of substituted evaluation is to introduce an element of flexibility into the process. The Officer must make a substituted evaluation decision which is consistent with IRPA and the Regulations. As education and language proficiency are two factors to be considered under the evaluation set out in the law, her substituted evaluation was comparable to evaluation she was displacing and was therefore reasonable. The Canada immigration application under the Canada skilled worker category was therefore dismissed.
CALVERN XAVIER RODRIGUES V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 2, 2009
The court reiterated that in Noman v. M.C.I.  an Applicant is not required to perform all of the main duties in a NOC job category, they did require that an Applicant perform a few – meaning more than one. The Officer’s job is to determine the pith and substance of the work performed by a Canadian immigration Applicant. The tangential performance of one or more duties does not convert the job functions from one NOC to another. Having completed 3 of the 4 main duties meets the requirement of having performed “a substantial number of the main duties”. The Applicant’s Canadian immigration application was dismissed as the immigration Canada Applicant did not succeed in fulfilling a substantial number of the main duties considered as such within his profession.
SHOU MIN YAO ET AL. V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 3, 2009
The definition of “dependent child” set out in section 2 of the IRP Regulations includes objective criteria but allows for the Officer to use his or her discretion. In this case the Officer had an issue with the eligibility of the school the Applicant’s child was attending. The Applicant was never given the opportunity to respond to the Officer’s concerns prior to a final determination. The guidelines issued in the Manual by CIC with regard to dependent children are not compulsory but they are helpful for establishing whether or not the Applicant’s child meets the definition of “dependent child”.
The Applicant’s child was studying at a school that offers its program on a flexible 3 semester basis instead of the traditional 2 semester basis. There was therefore some ambiguity as to whether the definition of full-time studies adopted by this school applies if a student is only enrolled in 2 of the 3 semesters because required courses may only be offered in 2 semesters. There was also some concern as to whether the classes the child was enrolled in were “courses of academic, professional or vocational training”. The Officer should have provided the Applicant with an opportunity to disabuse the Officer of her concerns due to the rules of procedural fairness. In addition the Officer did not explain why she rejected the Applicant’s child as a dependent child, as held in Via Rail Canada v. Lemonde [2001 C.A.] the reasons must be sufficient to enable the parties to assess possible grounds for judicial review. The Canadian immigration application was consequently granted.
MONA PERSAUD V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 26, 2009
The Application was refused because the Canadian immigration Applicant was only awarded 5 points for her post-secondary education rather than the 15 points she claimed for her Institute of Canadian Bankers’ Business Program for Bankers. The Applicant never submitted documentation specifying the number of hours of instruction completed. It is therefore difficult to ascertain whether this program constitutes a one-year post-secondary educational credential contributing to the total of 13 years of full-time studies. “Full-time” is defined as at least 15 hours of instruction per week during the academic year. “Full-time equivalent”, with respect to part-time studies, means “the period that would have been required to complete those studies on a fulltime basis”. The Applicant did not support her statements with any reference to documentary evidence. The Officer does not have the duty to go beyond the record in his attempt to assess whether the immigration Canada Applicant has met the statutory requirements of a skilled worker. The Officer’s decision was therefore reasonable and the Canada immigration application was resultantly dismissed.
SHAIKH AKHTAR HUSSAIN V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 26, 2009
The Applicant applied under the federal skilled worker category and was awarded 68 points through the Canadian immigration point system, exceeding the passing mark of 67 points. The Officer undertook a negative substituted evaluation and failed to take into account the Canadian immigration Applicant’s settlement funds. The Officer is presumed to have considered all of the evidence, the failure to refer to the funds in her decision raises the suspicion that she did not consider them. This is a reviewable error. The case was also denied on the basis that the Applicant, in accordance with Pakistan law, has two wives. His application to become a Canadian permanent resident showed that he intended to be accompanied by one wife if granted a Canadian permanent resident card. The Officer referred to his “peculiar/polygamist family situation”, which is an irrelevant consideration in relation to the application before her and therefore constitutes a reviewable error. The permanent resident Canada application was subsequently granted.
VIKAS V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 26, 2009
At the interview the Canadian immigration Applicant provided information about his employers, responsibilities and hours worked. At the interview the Officer did not raise any concerns, and the Applicant understood the silence to mean that she was satisfied that he had worked sufficient hours. The Officer concluded that the Applicant did not satisfy the minimum number of months of work experience (48 months) to receive the maximum number of points through the Canadian immigration point system. The Applicant was 1.6 months short of work experience because his experience had been earned working 30 hours per week. The Applicant was not informed of the result of the Officer’s calculation. While the Officer is not required to give an Applicant a running score at each step of the interview, in this specific case the failure of the Officer to tell the Applicant of the negative result of her calculations resulted in a breach of the duty of procedural fairness. The Applicant’s immigration Canada application was consequently granted.
INDERPAL SINGH HANSRA ET AL. V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MARCH 4, 2009
The Applicant was convicted of three counts of sexual assault. While on probation, the Applicant travelled to India where he met and subsequently marries a woman. The Canadian immigration Applicant claims that it was only upon returning to Canada that he became aware that he was unable to sponsor his wife because five years had not elapsed since his sentence was completed. The Applicant filed an H&C application seeking to obtain an exemption from the five-year ban. As part of the H&C application, a psychological report was filed stating that the Applicant was suffering severe emotional hardship as a result of being separated from his wife. The H&C application was denied for being unjustified in overcoming serious criminal convictions. In his decision the Officer stated both the positive and negative factors in this H&C. The Officer also articulated the reasons for the decision sufficiently. While the Officer concluded that the Applicants claims were valid, he based his decision upon the fact that Applicant undertook marriage without regard for his criminal convictions, and his ignorance of the law is not something which should be condoned to avoid a waiting period. The Applicant’s immigration to Canada application was therefore dismissed.
MARAWAN PHARAON V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MARCH 18, 2009
The Canadian immigration Applicant was requested by the visa office in London to provide police certificates with the necessary translations within 60 days. The request was received by the Applicant’s representative one week after the date indicated on the letter. The Applicant’s representative requested an extension for providing the documentation. The extension was refused by the visa office only 14 days prior to the expiry of the deadline. The refusal was issued on the 61st day following the date on the letter, as the Applicant had 60 days from receipt of the letter to provide his documents; his deadline had not yet expired. The mistake of fact was the origin of an unreasonable conclusion which cannot fall within the range of acceptable outcomes from the facts as elaborated in Dunsmuir. Immigration Canada application was therefore granted.
BHARATKUMAR KANTIBHAI PATEL V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MAY 8, 2009
The Applicant was claiming points for his work experience as a “Quality Control Chemist”, according to the Canadian immigration point system. One of the reference letters he provided did not set out what his duties were. The other two reference letters he provided described his duties. In his letter of refusal the Officer concluded that the Canadian immigration Applicant’s duties “did not match the lead statement or main duties of a Chemist”. The court concluded that the duties listed in the reference letters did reflect the NOC’s lead statement and corresponded with many of the specified duties of a chemist. The Officer’s assessment of the application was therefore unreasonable and the immigration Canada application was therefore granted.
KATTIA CASTRO VILLALTA V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MAY 20, 2009
The Canadian immigration Applicant and her sponsoring spouse appeared to have been experiencing some discord in their relationship; this was due in part to disagreements over the availability of certain documents to be presented at the interview. The Applicant appeared at the interview without his spouse and requested that the interview be postponed. The Officer, suspicious that the sponsoring spouse was not present, made inquiries and concluded that the sponsorship had “dissolved”. A refusal of the sponsorship immigration to Canada application was issued almost immediately thereafter. The court concluded that the Applicant had been denied procedural fairness. Nothing in the record suggests that the Officer gave any consideration to the request for a postponement, and reasonable requests for a postponement should not, generally be refused, in this case the request was reasonable. The Canada immigration application was therefore granted.
SAQIB HAMEED ET AL. V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MAY 21, 2009
The Canadian immigration Applicant failed to provide proof that he had attended classes on a full-time or full-time equivalent basis. The Regulations do not specifically require proof of attendance. Even if the Officer was concerned that the Applicant had not proved how many hours of classes he was supposed to have attended, his evidence did demonstrate that he had 14 years of education according to the Higher Education Commission. Even if he had failed to show that his studies met the definition of full-time, he had proven that he obtained a degree based on a full-time equivalent of 14 years of study. Therefore he must be awarded 20 points in the education category according to the Canadian immigration point system; his immigration Canada application was thus granted.
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.
MD. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ( 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.
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.
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.