The following are the court cases that have changed Canadian Immigration Law. These short summaries are prepared for the information of litigants in immigration matters coming before the Canadian Federal Court and the Federal Court of Appeal.
2020
March
CHRISTOPHER BACANI CRUZ // IMM-3552-19 // 2020 FC 455 // MARCH 31, 2020
Mr. Cruz filed an application for his wife to be granted admission to Canada. Mr. Cruz’s wife was convicted of Falsification of Commercial Documents in the Philippines. The migration officer on the case erred in failing to conduct a proper equivalency assessment. An equivalency assessment requires that one of two tenets be met: an officer can compare the precise wording of the foreign statute with the corresponding Canadian statute to determine equivalency, or consider if the presented evidence is sufficient to establish that the fundamental elements of the Canadian offence had been proven in the foreign proceedings. The migration officer was given documentary evidence and admission from the applicant’s wife, but failed in identifying the precise elements of s332(1) Criminal Code offence of misappropriation of money under directions. The migration officer did not compare the essential elements of the two offences, nor establish that what was proven in the Philippines satisfies the standard set by the Criminal Code in Canada. The officer broadly cited that the offence committed by the applicant’s wife was equivalent to s332(1) of the Criminal Code; the officer failed to identify specific language within the code, nor provide an analysis of why the evidence presented in the Philippines satisfied the standard to constitute an offence. Due to the aforementioned errors, the application was accepted.
April
HANYING LUO ET. AL // IMM-5511-18 // 2020 FC 543 // APRIL 22, 2020
The respondent is a full-time employee of a Canadian company working in China. The employer testified that the respondent is employed on a full-time basis, and equated this situation to an IT worker who is retained for a 40 hour week despite not necessarily being needed the entire time. The employer did not realize that the Principal Respondent was relying on his professional “assignment” to gain permanent residency in Canada. Subsection 61(3) of the IRPR requires that an “assignment” must meet two criteria: a) The employee works full-time on a temporary basis outside of Canada, and b) The employee will continue to work for their employer in Canada once they complete their overseas assignment. Evidence on the record does not affirm the employer’s intention to integrate the respondent into the Canadian operation after the assignment in China had been completed, and the work cannot be completed outside of China- the respondent’s job was to destroy returned products in China to avoid shipping them back to Canada. The jurisprudence establishes that there must be more than a “possibility” or “some assurances” of an employee being integrated into Canada in order to meet the standards set out in 61(3). or the IRPA. Moreover, work that is exclusively done outside of the country may lead to the employee developing weak ties to Canada and be put at risk of failing the permanent residency requirement. The jurisprudence has identified employer intention to integrate an employee into Canada as the key factor in determining permanent residency applications in these situations, and the evidence, in this case, does not prove that the employer had such intentions.
July/August
JULIET CARIN // IMM-4422-19 // 2020 FC 740 // JUNE 30, 2020
Ms. Carin applied for a study permit in Canada to pursue a diploma in social work. The Officer doubted whether Ms. Carin’s studies warranted the cost and difficulty of obtaining a foreign education and was unsatisfied that Ms. Carin would enroll in a designated learning institution or leave Canada at the end of her authorized stay. However, the Officer failed to engage with Ms. Carin’s letter of motivation where she explains that she chose to pursue a Canadian education in order to attract a more stable and higher earning occupation and because Canada’s social work program takes two years to complete compared to her home country of the Philippines which takes four. Ms. Carin also noted that obtaining a diploma in social work would help her realize her dream of finding employment with the Department of Social Welfare and Development in the Philippines. The Officer provided no reasons for why the cost and difficulty of obtaining a foreign education would outweigh the benefits that Ms. Carin has expressed in her motivation letter. Furthermore, Ms. Carin provided proof of admission to the Canadian program and evidence that she had paid her first instalment of tuition fees, along with proof of property ownership and bank statements from the Philippines to demonstrate that she had enough money saved to exceed the amounts required to qualify for the issuance of a study permit. Ms. Carin’s family and property ties in the Philippines, as well as her demonstrated past compliance with foreign immigration prove that she is likely to depart Canada at the end of her authorized stay. Given Ms. Carin’s clear justification for obtaining a Canadian degree, her demonstrated ability to afford the expense, and the evidence that she will comply with immigration requirements, the application was allowed.
ISABEL MARIA DE CAMPOS GREGORIO // IMM-4254-19 // 2020 FC 748 // JULY 8, 2020
In 2013, Ms. De Campos Gregorio was convicted in Portugal of an offence that is equivalent to the Canadian crime of forgery. Ms. De Campos Gregorio entered Canada on a visitor’s visa and requested an extension on four occasions between 2016 and 2017 but was refused every time. She also obtained a work permit that was valid from July 4 2018 to July 4 2020 which she used to work as a kitchen helper in a restaurant. Ms. De Campos Gregorio’s criminal conviction was disclosed to Canadian immigration authorities for the first time in July 2018, when she submitted a “Schedule A” and Portuguese Certificate of Criminal Record with her application for permanent residence. In evaluating her case, the Officer committed an error by listing positive and negative factors, before stating a conclusion without any intervening analysis. The Officer concluded that Ms. De Campos Gregorio’s circumstances did not warrant a finding of criminal rehabilitation. This conclusion required an evaluation of the different factors, and an assessment of whether Ms. De Campos Gregorio is likely to reoffend which considers things like the nature of her past criminal history, what has happened since that time, and whether there are any indicators that such conduct will recur. The Officer’s decision fails to include considerations about what has happened since Ms. De Campos Gregorios’s offence and whether there are indicators that Ms. De Campos Gregorio is likely to reoffend. As a result, the application was allowed.
LINTON ALEXANDER MCLEISH // IMM-4983-19 // 2020 FC 747 // JULY 7, 2020
Mr. McLeish’s sponsorship application was evaluated based on evidence for the duration of cohabitation between Mr. McLeish and his partner, Ms. Mitchell. Mr. McLeish failed to provide evidence to demonstrate where he was living; however, he did include an explanation for why he was unable to provide such evidence. The Officer found this explanation insufficient but failed to explain why it was not accepted or why failure to provide proof of residence or combining of affairs counted against Mr. McLeish’s application. Furthermore, Mr. McLeish did include letters from Ms. Mitchell’s daughters and a next-door neighbour as well as long distance phone records to provide evidence that he and Ms. Mitchell were living together in her home. Most of this information was provided in Mr. McLeish’s original application. Even though Mr. McLeish received a letter of procedural fairness which expressed that the Officer had concerns that Mr. McLeish may not meet the requirements for immigration to Canada, the basis of these concerns was not explained. The Officer was required to explain why Mr. McLeish’s evidence of cohabitation was insufficient, but the Officer’s failure to do so produced a decision lacking justification, intelligibility and transparency. Mr. McLeish provided further clarification for his lack of cohabitation with Ms. Mitchell by explaining that his joint bank statement with her has different residential addresses because his bank statement address was his place of residence from October 2015 until July 2016 which was before he and Ms. Mitchell had met. He eventually moved in with Ms. Mitchell in June 2017, making it unreasonable for the Officer to conclude that the bank statement was enough to suggest that Ms. Mitchell and Mr. McLeish were not living together at the material time. Mr. McLeish’s application was therefore allowed.
JENNIFER SLEMKO // IMM-4663-19 // 2020 FC 718 // JUNE 23, 2020
Ms. Slemko is sixty-nine years old and has pled guilty to six counts of trafficking in a controlled substance where she sold cocaine through a “dial-a-dope” operation to an undercover police officer on six occasions in 2015. She was therefore sentenced to 24 months of imprisonment. The Minister’s Delegate did not refer to the H & C factors considered by the Officer, nor did the delegate cross-reference the Officer’s analysis. Rather, the Minister’s Delegate relied only on the fact that Ms. Slemko did not provide any letters of support from her family members in Canada, despite Ms. Slemko having an extensive family in Canada including two sisters, six children, and a number of grandchildren. It is unclear whether the Minister’s Delegate weighed Ms. Slemko’s other H&C factors, as set out by the Officer, or whether the delegate relied only on the absence of support letters in drawing the negative H&C conclusion. As a result, the referral decision, when read with the Officer’s assessment, does not reflect an internally coherent reasoning process and was unreasonable. The application was therefore allowed.
September
SWARANJIT KAUR // IMM-5627-19 // 2020 FC 809 // AUGUST 4, 2020
Ms. Kaur applied for a TRV but was denied for responding no to the question “have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?”. The Officer who sent Ms. Kaur a letter of procedural fairness on July 25, 2019 was under the impression that Ms. Kaur had been refused a US visa twice in 2010 and was therefore committing misrepresentation in her application. Whether the requirements of procedural fairness were met depends on whether the email informed Ms. Kaur about the Officer’s concerns. The Respondent claims that there was no breach of procedural fairness because the Officer expressed that there was a concern that Ms. Kaur’s answer to Question 2(b) on the application form was false. However, the Respondent’s argument presumes that the information the Officer was relying on is accurate, which it is not. Ms. Kaur then received a second letter from a different Officer on August 6, 2019 who rejected Ms. Kaur’s TRV application and found Ms. Kaur inadmissible due to misrepresentation. The Officer who made the final decision evidently believed that Ms. Kaur had been refused a US visa twice in 2010, however Ms. Kaur was never invited to give a response on this issue because the Officer never directly mentioned that this was the issue of misrepresentation. In a response prepared by her lawyer, Ms. Kaur disclosed that she had been refused a US visa in 2018 but did not mention this in her TRV application because her representative said the question only concerned Canadian visa refusals. There is no indication in the record that the Officer was even aware of this refusal before Ms. Kaur disclosed it in her procedural fairness response. While Ms. Kaur acknowledged having been refused a US visa once in 2018, this alone cannot be the basis of the misrepresentation finding because, the Officer’s decision consistently refers to more than one visa refusal when describing Ms. Kaur’s misrepresentation. Because the Officers never expressed to Ms. Kaur that the concern of misrepresentation stemmed from her two alleged 2010 visa refusals, Ms. Kaur did not have a meaningful opportunity to respond so the TRV decision was made in breach of the requirements of procedural fairness. Her application was allowed.
GRACE BREFO // IMM-3153-19 // 2020 FC 815 // AUGUST 5, 2020
Ms. Brefo was identified as part of a group of unrelated applications that shared a significant number of similarities linked to an unauthorized representative under investigation. The Officer determined it would be unlikely that unrelated applications would share such a high number of similar characteristics, if not for the use of the same unauthorized representative. Ms. Brefo and the other applicants responded to their letter of procedural fairness by stating that no unauthorized or compensated representative had been used in the preparation of their application. However, the Officer was not satisfied with Ms. Brefo’s response given the considerable amount of similarities between her application and the other applications. The Officer concluded that the Applicant had received assistance from an undeclared and unauthorized representative in the preparation of her application. The Officer further concluded that the Applicant’s failure to disclose the use of a representative constituted misrepresentation that could have induced an error in the administration of the IRPA. This information may have compromised the Officer’s ability to determine the truthfulness of the information provided by the Applicant. Therefore, the application was dismissed.
October
NIRALI NIMESHKUMAR SONI // IMM-4639-19 // 2020 FC 813 // AUGUST 25, 2020
Ms. Soni used a travel consultant to fill out her application which she simply signed and dated without reading, unaware that it was inaccurate. Her legal counsel described this as an honest mistake for failing to review the forms, and Ms. Soni provided a short letter from her travel consultant accepting responsibility for the errors. Despite reading Ms. Soni’s updated information and the evidence from her legal counsel and travel consultant, the Officer’s concerns still remained. The Peace Bridge Officer articulated similar concerns over Ms. Soni’s truthfulness on April 11. Less than a week later, Ms. Soni swore the Statutory Declaration and retained Canadian counsel to address these concerns in detail. Ms. Soni argues that the Officer failed to engage sufficiently with her explanations given under oath, while the Officer argues that Ms. Soni lied twice, and the Officer had the legal right to refuse her work permit application on that basis alone. Ms. Soni’s migration history included several incidents of dishonesty such as not disclosing her employment prospects to the Border Officer on March 26 and several factual discrepancies between her TRV application and her work permit application. The Officer was entitled to take into account Ms. Soni’s lack of accuracy or completeness in communications with immigration officials when assessing whether Ms. Soni would leave Canada by the end of the period authorized for her stay. For these reasons, Ms. Soni’s application was dismissed.
CARMEN AZUCENA CABELLO MUNIZ // IMM-3077-19 // 2020 FC 872 // AUGUST 31, 2020
When asked “have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?” Ms. Muniz responded no on her eTA application. She subsequently received a procedural fairness letter due to her misrepresentation based on her answer. Ms. Muniz responded by explaining that she misunderstood the question and confirmed that she had been refused a PGWP and a visitor record, and attached the refusal letters accordingly. The GCMS notes disclose that Ms. Muniz’s experience with Canada’s immigration system weakens her claim that she misunderstood the question, nor did Ms. Muniz explain how she misunderstood the question. The Officer therefore rejected Ms. Muniz’s claim of misunderstanding. Ms. Muniz argues her omission was not material because the Officer had access to this information through their own internal databases, which is what prompted the procedural fairness letter, and thus her omission could not mislead the immigration system. However, information on previous refusals is material to the issuance of a visa, and this did not relieve Ms. Muniz of her duty of candor. Applicants like Ms. Muniz cannot rely on the immigration system to catch their errors, even if they are made innocently. The application was therefore dismissed.
BALRAJ SINGH RANDHAWA // IMM-5375-19 // 2020 FC 905 // SEPTEMBER 17, 2020
The Officer set out to conduct an equivalency analysis between India and Canada for Mr. Randhawa’s offence of dangerous driving. In doing so, the Officer stated that it is an offence to drive in a dangerous manner causing bodily harm or death under Canadian law and although the equivalent wording in Indian law regarding dangerous driving is not available, the documentary evidence suggests this would be a criminal offence in Canada that is punishable by 10 years in prison. However, the Officer did not conduct a fair equivalency analysis. In order to do so, the Officer must at least describe the constituent elements of both the Canadian offence and the Indian offence, and refer to the specific applicable provisions which requires a comparison of the definitions of those offences. In sum, the Officer must look at the essential ingredients of the two offences and be satisfied that they are comparable. In the absence of a review and comparison between the essential components of an offence abroad and its equivalent offence in Canada, the Officer’s equivalency analysis was incomplete and insufficient. In assessing Mr. Randhawa’s application, the Officer referred to the offence of dangerous driving without knowing the essential elements of the comparable offence in the Indian Penal Code. The Officer did not even provide a description of the offence of dangerous operation of a vehicle in Canada. In other words, nothing in the Decision explains how the Officer reached his conclusion on the equivalency between the two alleged offences. The Officer also failed to analyze the actus reus and mens rea of the offence and disregarded the fact that Mr. Randhawa’s dangerous driving was caused by being threatened by a group of assailants which caused him to flee quickly in order to escape the threat. The Officer therefore overlooked a crucial and essential component of the offence of dangerous driving causing bodily harm in Canada, and the application was allowed.
November
ANKUSH KUMAR // IMM-5875-19 // 2020 FC 935 // SEPTEMBER 28, 2020
Mr. Kumar was required to upload proof that he met the requirements of the job being offered to him; however, he failed to provide evidence under the mistaken belief that this requirement only applied to regulated occupations. Instead of providing proof, Mr. Kumar uploaded a letter from his Counsel which stated that Mr. Kumar was not required to provide proof of meeting the requirements of the job offered to him since his occupation as a cook was not a regulated profession. Nevertheless, Mr. Kumar was required to demonstrate that he met the job requirements. Moreover, his failure to provide required documentation did not stem from misleading information in the online checklist or a technical limitation that only permits an Applicant to upload requested documents. Rather, Mr. Kumar’s online form clearly flagged the application as incomplete until Mr. Kumar uploaded a document to prove that he met the requirements of the job being offered. After all, the application’s incomplete status is what motivated Mr. Kumar to upload his Counsel’s letter in order to resolve the flagged application. The Officer’s concerns with Mr. Kumar’s ability to meet the requirements of his job could have been alleviated if Mr. Kumar had submitted proof of his English language proficiency or completion of secondary education; however, such documents were not before the Officer. Mr. Kumar’s failure to provide evidence to meet these specific requirements of the LMIA provided sufficient justification to refuse his work permit application. The application was therefore dismissed.
JIN YUAN YE [RESPONDENT] // IMM-6601-19 // 2020 FC 924 // SEPTEMBER 23, 2020
Mr. Ye and the Minister disagreed over whether Mr. Ye should be released on his own recognizance. The Member concluded that Mr. Ye’s payment of a $5,000 deposit coupled with the imposition of a series of standard conditions provided an alternative to detention. The Minister’s counsel objected out of concerns that Mr. Ye’s $5,000 deposit came from funds that were obtained by illegal work. Mr. Ye’s reported savings of approximately $8,000 had been obtained in Canada where he worked without authorization after the issuance of a removal order. Therefore, Minister’s counsel argued that the funds Mr. Ye had saved were unlawfully obtained and could not be used to provide the proposed $5,000 deposit. Despite concerns about how the funds were obtained, the Minister’s counsel did not argue that the proposed quantum or source of the deposit would fail to promote Mr. Ye’s compliance. The Member was not convinced that Mr. Ye’s savings had been unlawfully obtained and further noted that Mr. Ye paid the deposit using a credit card that he had access to with a limit of approximately $6,000 which could have been used to make the $5,000 deposit. In addressing the plan that Mr. Ye be released on his own recognizance with a $5,000 deposit, the Member notes that Mr. Ye is a homeowner with children, he is responsible for paying the mortgage on his home, his wife does not earn an income, and he had approximately $8,000 worth of savings. In light of this evidence relating to Mr. Ye’s financial means and responsibilities, the Member concluded that it was doubtful that Mr. Ye is in any position to abscond and lose the $5,000 deposit. The Minister’s application was therefore dismissed because the Member concluded that Mr. Ye’s $5,000 deposit was a meaningful incentive to promote his compliance with the conditions of release.
December
VIKELA KITA // IMM-4417-19 // 2020 FC 1084 // NOVEMBER 23, 2020
Ms. Kita provided proof of sufficient funds for her program of study by declaring her savings of over $30,000 USD, demonstrating that she had already paid part of her tuition, stating that her accommodation costs would be covered by staying with family, and displaying her husband’s income as a skilled tradesman. Despite Ms. Kita’s evidence of sufficient funds, she was not able to provide proof of the origin of these funds. Ms. Kita argues that the unknown provenance of her funds is an irrelevant factor, as the IRPR only requires proof of sufficient funds, not evidence of the origin of funds. However, the fact that section 220 only requires proof of sufficient funds does not necessarily render the origin of the funds irrelevant. It was therefore reasonable for the Officer to take into account Ms. Kita’s unknown provenance of funds in determining whether she and her husband would leave Canada at the end of their stay. Furthermore, the Officer stated that Ms. Kita’s husband, Mr. Rrezhda was refused a U.S. visa and did not declare it. Ms. Kita has not alleged or shown that this statement was inaccurate, and she has not provided any details about Mr. Rrezhda’s refused U.S. visa. Other factors that the Officer considered when evaluating Ms. Kita’s application include the purpose of Ms. Kita’s visit, the limited employment prospects in Albania, Ms. Kita’s personal assets and financial status, and Ms. Kita’s unemployed status. During the two years prior, Ms. Kita had been working as an assistant at her mother’s store. Ms. Kita claims that she plans to return to this job after completing her college program in Canada, however her application indicates that Ms. Kita moved from Korce, where her mother’s store was located, to the distant city of Tirane where her husband works in June 2018. This information is relevant to whether Ms. Kita and her husband were travelling to Canada for a temporary purpose. The Officer was reasonable in considering Ms. Kita’s unemployment when determining whether she would leave at the end of her authorized period of stay and return to Albania. Ms. Kita’s application was therefore dismissed.
CHINUA RODRICK IBE-ANI // IMM-4080-19 // 2020 FC 1112 // DECEMBER 2, 2020
Mr. Ibe-Ani was found inadmissible because he provided a copy of a United States B1/B2 visitor’s visa with his application but did not disclose that it had been revoked. Mr. Ibe-Ani claims that this was an innocent misrepresentation because he was not aware that his U.S. Visa had been revoked. In responding to Question 2(b) which asks, “have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?” Mr. Ibe-Ani answered yes, indicating that he had previously been refused Canadian study permits on July 31, 2018, and November 26, 2018. He also provided a copy of his U.S. Visa that was issued on July 7, 2017, and due to expire on July 4, 2019. On April 8, 2019, the Applicant received a procedural fairness letter alleging that there were reasonable grounds to believe that the Mr. Ibe-Ani had not answered Question 2(b) truthfully, because he had provided a copy of a recently issued U.S. visa which he knew was invalid and had been revoked shortly after it was issued. Mr. Ibe-Ani responded the same day, explaining that he had not been aware that his U.S. Visa had been revoked. Mr. Ibe-Ani indicated that he was aware of other issues such as a problem with a U.S. Visa for his mother’s employee, and an issue with his younger sister’s visa picture, but both issues had ultimately been resolved because the domestic employee eventually obtained a U.S. Visa and his sister’s visa had been cancelled on a without prejudice basis. These external issues however do not address the true concern of Mr. Ibe-Ani’s application: the revoked U.S. Visa that he had provided. Knowledge of Mr. Ibe-Ani’s misrepresentation was in his control, and the evidence demonstrates that he was specifically alerted to a possible problem with his U.S. Visa, but there is no proof that he took any steps to verify its validity. The Officer provided Mr. Ibe-Ani with an opportunity to address the concerns regarding the U.S. Visa, but in the end, the Officer was not convinced by the explanations offered. Therefore, the application was dismissed.
MAHINTHAN SIVALINGAM // IMM-4633-19 // 2020 FC 1078 // NOVEMBER 20, 2020
The Officer evaluating Mr. Sivalingam’s application concluded that, because of Mr. Sivalingam’s criminal inadmissibility, he was not eligible to be included in his wife’s application. However, the Officer’s decision fails to recognize that Mr. Sivalingam’s inadmissibility could be overcome through H&C relief. The Respondent argues that any error of this sort is not material to the deferral decision, because the filing of an H&C application is not a bar to removal. The present matter could be characterized as raising such special circumstances, because the Mr. Sivalingam’s March 2016 request for H&C relief was never addressed on its merits and was rejected on the erroneous basis that Mr. Sivalingam was already a permanent resident. Therefore, Mr. Sivalingam’s reopening application represents a request for consideration of an unaddressed application for H&C relief. The Officer’s error in recognizing the possibility that the unaddressed request for H&C relief could overturn Mr. Sivalingam’s inadmissibility represents a material error which undermines the reasonableness of the Decision. Furthermore, the Officer is concerned that Mr. Sivalingam did not pursue his reopening application in a timely manner because his wife received permanent residence status in March 2018 but Mr. Sivalingam did not seek to reopen her application until May 2019. Despite Mr. Sivalingam’s claims, the Officer does not believe that he applied long after his wife because he only found out that he had been excluded from his wife’s application in early 2019. Mr. Sivalingam argues that the Officer erred by ignoring evidence and engaging in speculation. The Officer’s conclusion could represent a basis to find that the present case does not represent special circumstances warranting a deferral. However, there is no basis to conclude that the original request for H&C relief was not made on a timely basis. If the Officer had not erred by failing to recognize that H&C relief could overcome Mr. Sivalingam’s inadmissibility and had proceeded to assess whether his case presented special circumstances warranting a deferral, the Officer may have arrived at a different result. The application was therefore allowed.
