Applicant Case Summaries – 2020

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 foregn 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.