Applicant Case Summaries

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.

2008: October November December

2009: February March May

2010: July

2011: November December

2012: January February March April May June July September October
November December

2013: January February March April May June September October
November December

2014: January February March April May June July/August September October

2015: April

2017: May June July October November December

2018: January February March April


2008

October

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.

November

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.

December

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.

2009

February

CALVERN XAVIER RODRIGUES V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) FEBRUARY 2, 2009

The court reiterated that in Noman v. M.C.I. [2002] 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.

March

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.

May

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.

2010

July

DR. HYUN JOO PARK IMM-5190-09 2010 FC 782 JULY 27, 2010

The following summary will explain the decision imposed on a case that was submitted for judicial review by Dr. Hyun Joo Park. Dr. Park was appealing a denial of her application for permanent residency, which was made by an immigration officer at the Canadian Consulate General in New York. The application was denied due to the criminal inadmissibility of Dr. Park’s husband.

Background

Dr. Park applied for Canadian permanent residency in April of 2008. Her accompanying family members included her husband, and two daughters. Dr. Park, the applicant, held a Research Associate position at the Hospital for Sick Children at the time of the complaint. Dr. Park is undoubtedly a highly educated and capable scientist who personally qualified for permanent residency with ease.

Dr. Park’s husband also has high status among the scientific and medical community. However, Dr. Song (her husband) was arrested and convicted of “drunken driving” in Seoul, Korea. Other than Dr. Song’s blood alcohol level being recorded as 65 milligrams of alcohol in 100 milliliters of blood, there was no other evidence rendering him impaired or erratic. There was no evidence of failure of any physical tests that may have demonstrated impairment.

Decision: Visa Officer

In the letter from the visa officer, Dr. Park was informed that her application was denied due to her husband belonging to a group of persons considered inadmissible to Canada. After much consideration, the visa officer decided that the Korean drunken driving conviction was equivalent to that of “Operation While Impaired” in the Canadian Criminal Code. This equivalence deemed Dr. Song inadmissible, and thereby caused the denial of Dr. Park’s entire application. Accompanying, or even non accompanying, family members can cause inadmissibility issues for those that would otherwise not face them. This is outlined in Section 42(a) of the Immigration and Refugee Protection Act. The immigration officer concluded the decision by informing Dr. Park that her husband would be eligible for a process of criminal rehabilitation in 2012, which is also when a new submittal for a permanent residency application was suggested.

Decision: Minister of Citizenship and Immigration

The issue at hand was whether or not Dr. Park’s husband was truly inadmissible to Canada, based on the process that immigration officers undergo to attempt to make equivalencies between international law codes. Based on the Korean Road Traffic Act, and the explanation of the event by Dr. Song, the immigration officer determined that Dr. Song’s offence, given the information, would constitute an offence under Canadian law. The court upheld the reasoning and decision of the immigration officer and dismissed the case.

Reasoning

The determination of equivalency between offences committed in a foreign country to those that exist in Canada is a question of law. The essential elements of both the offences being compared must be equivalent. Verification of equivalency is done by carefully analyzing the wording of the statutes, and further, by using evidence from experts in foreign law. Expert opinion is only considered for verification of equivalency purposes when it is available. Since the immigration officer was not provided with expert evidence, and therefore did not have the benefit of such opinion, a decision had to be made by considering the precise wording of the statutes and the circumstances of the offence. The Korean law, and Canadian law, regarding impaired driving, does not include a specific blood alcohol measurement. Consequently, since the immigration officer did not receive supplemental information or evidence from the applicant, the officer had to determine equivalency without, and the court found that there was no error in law during this exercise. The court maintains that they will not interfere with a decision unless there was an error in law, and the court did not find sufficient evidence for this to be the case in the Dr. Park application.

2011

November

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.

December

  1. 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.

2012

January

IRUM RAHIM TALPUR ET. AL. IMM-35-11 2012 FC 25 JANUARY 9, 2012:

During a Canadian immigration interview, the Visa Officer aimed to assess the technical skills of the principal Applicant. However, a lack of knowledge at a selection interview relating to what a Visa Officer believes a person with experience in a particular profession should know about their field, based upon the personal opinions of that Visa Officer is not a valid basis for the conclusion that an Applicant has not performed the duties required. The Officer is not in a position to question the Applicant’s technical abilities after accepting that the Applicant in question was certified and registered as a licensed physician in her home country, nor is the Officer in a position to determine whether the Canada immigration Applicant is truly competent as a physician and therefore whether the Applicant in question should be authorized to practice in Canada. Being satisfied with the Principal Applicant’seducation credentials, the only remaining task for the Visa Officerwas to verify whether she had at least one year of continuous full-time paid work experience as a general practitioner, pursuant to specified requirements, as this was indeed the case the Applicant’s immigration Canada application was allowed.

HWA JA KWON SUNG DING LEE IMM-609-11 2012 FC 50 JANUARY 13, 2012:

The Applicants, natives of South Korea, have three children in Korea and their fourth child, a daughter is a Canadian citizen and the mother of her own two children. Said daughter’s marriage ended due to the inconceivable behaviors of her husband, however this termination left the daughter alone as a student with no money and two young children. The Applicants’ (grandparents) came to the rescue of their daughter, moving to Canada, purchasing a home to serve as a safe environment for their daughter and granddaughters, learning English and most importantly provided a loving, stable and safe environment for their family. At the time of their Application for Canadian immigration the Applicants were effectively parenting their granddaughters because their daughter’s profession (nursing) does not allow her to be home on a regular basis.

The Officer under section 25 of the Act must take “into account the best interests of a child directly affected”. The Applicants for the Canadian permanent resident card continue to provide much needed emotional and psychological support to their daughter and granddaughters and this stability is recognized as a factor of primary importance in the well-being of these Canadian citizens. Based on the preceding facts it is evident that the departure of the Applicants would deprive their daughter and granddaughters of the emotional and psychological support, which the Officer concluded they needed. Permanent resident Canada application is therefore allowed.

NOLY DELA ROSA MERCADO ET. AL. IMM-2940-11 2012 FC 112 JANUARY 27, 2012:

The Canadian immigration Applicant, a citizen of the Philippines was applying to extend his stay in Canada due to the fact that he suffers from a life threatening allergy that he claimed could be treated most effectively at the time of reaction through the EpiPen method, as opposed to the alternative treatment method, which administers epinephrine via ampoule/syringe, the former of which is prohibited in the Philippines. The EpiPen method’s advantages include portability and ease of administration, convenience and rapidity, however the alternative method is not presumed to be any less effective or lifesaving in the case of an anaphylactic reaction than the EpiPen itself. Additionally, the likelihood of experiencing an anaphylactic life-threatening allergic reaction was deemed by the Officer to be no more probable in the Philippines than in Canada. Therefore in conclusion, the Applicant’s immigration to Canada application was dismissed.

February

JOAHANA AWAH AMBASSA IMM-3986-11 2012 FC 158 FEBRUARY 6, 2012 RUSSELL J.:

The Canadian immigration Applicant was HIV+ and as a native of Cameroon was unable to prove that she would be faced with lack of effective medical care or unusual, undeserved or disproportionate hardship in her native country due to her condition. The Applicant, who had no family in Canada, did have family in Cameroon, some of whom were supportive and who could care for the Canada immigration Applicant, which would not be the case if the Applicant in question were to immigrate to Canada. The Officer admitted that while the Applicant could face a level of hardship, this hardship in her home country was not at the level of unusual, undeserved or disproportionate hardship required for her Canadian immigration application to be allowed via the humanitarian and compassionate (H&C) type immigration to Canada application. The application was therefore dismissed.

JERONIMO JOVITO DE SOUZA IMM-4789-10 2012 FC 167 FEBRUARY 7, 2012:

Under subsection 78(4) of the Act, the Canada immigration Visa Officer must first look to the academic credential held by the Applicant, where there applicant has a credential, the Officer must determine whether the Canadian immigration Applicant satisfies the total number of years of full-time education as set out in the Act, if satisfied, the Officer must then award full points under the subparagraph. Where the Applicant in question does not satisfy the number of required years, the Officer should award immigration Canada points equal to the number of years of education required in the section.

The Applicant in this case did not have the required number of years of full-time education, 13 rather than 15 as his Higher Secondary Certificate was not a pre-requisite for the Applicant’s diploma. Therefore subsection 78(2) of the Act is to be considered if following the above approach and the Officer should reward the same number of points as the number of years in the subparagraph, 15. Therefore regardless of the fact that the Applicant’s 2 years of Higher Secondary Certificate education were not considered, he was still awarded full points under section 78 of the Act and therefore could not gain any further benefit by having his application decision returned for further consideration. The Applicant’s application for judicial review of his Canadian immigration application is therefore dismissed.

HARMINDER SINGH DHILLON IMM-4887-11 2012 FC 192 FEBRUARY 9, 2012 HARRINGTON J.:

The immigration Canada Applicant, although mentally sound and a high school graduate, is partially disabled, giving rise to the question as to whether his condition (post-polio residual paralysis in both lower limbs), will prevent said Applicant from being financially self-supporting. While the Applicant, a native of India, did indeed encounter difficulties in finding employment in his home country, this is due to the attitude of the society in which he lives, towards people with disabilities rather than the Applicant’s actual inability to support himself financially, for “one must not only be willing to work, someone must be willing to hire”. The thrust of this case is whether the Applicant will be able to financially support himself where he lives, and not whether his physical condition would prevent him from becoming self-sufficient in Canada, where human rights are seen as fundamental. The Applicant’s immigration to Canada application is allowed, giving said Applicant potential for a fuller and more fulfilling life in a new, human rights-based country.

VANESSA ARANGO ROMERO IMM-4224-11 2012 FC 265 FEBRUARY 27, 2012 RUSSELL J.:

In 2011 the Applicant, a citizen of Colombia, applied for a Canada work permit under the Live-in Caregiver Program (LCP). The immigration Officer was not confident in the genuine nature of the Applicant’s professional choice, nor did the Officer believe the applicant would leave Canada at the expiry of her Canadian temporary resident permit as her past immigration record showed the clear interest of the Applicant to remain in Canada on a more permanent basis. This negative decision with regards to the Canada work visa application of the initial Officer was returned for reconsideration given that the Applicant, although perhaps wishing to stay in Canada on a more permanent basis, has demonstrated through past stays in Canada, that she will not do anything illegal to achieve this end. The Applicant’s work permit for Canada application is therefore allowed.

INDERJIT KAUR IMM-4004-11 2012 FC 273 FEBRUARY 28, 2012 NOËL J.:

The Applicant, applying for immigration to Canada under the federal skilled worker category believes she was the victim of a breach of procedural fairness on behalf of the immigration Officer, due to the fact that she did not receive notice stating that her marriage would be a primary focus of inquiry. The Applicant did however receive notice requesting she complete a spousal questionnaire and that she bring wedding photos from her marital ceremony and reception to an interview. At the end of said interview, the Officer, in compliance with the rules regarding procedural fairness clearly expressed her concerns and provided the Applicant with ample time to respond to these concerns; however the Applicant chose not to respond any further in the matter. While there was express concern that the marriage between the immigration Canada Applicant and her spouse was entered into in bad faith, the Officer could not conclude misrepresentation had occurred based merely on unconfirmed doubt with regards to the genuineness of the marriage. The federal skilled worker application was therefore allowed.

March

NARINDER PAL GILL IMM-3364-11 2012 FC 304 MARCH 13, 2012 PHELAN J.:

The permanent resident Canada application of the Applicant was dismissed. While his immigration status was still in doubt, the Applicant in question built and acquired interests in two trucking companies in Canada. When the Canadian permanent resident application was dismissed, the Applicant argued the decision to be unreasonable and unfair as it did not take into account his commercial establishment in Canada. The Applicant was able to leave Canada and return to his home country of India despite his attempted proof to the contrary, but chose to remain in Canada and build up his businesses. The Officer concluded that the Applicant’s establishment in Canada was a matter of choice and not a matter beyond his control.

AL ISMAILI ET. AL. IMM-2466-11 2012 FC 351 MARCH 22, 2012 BÉDARD J.:

It is the responsibility of the Applicant to establish and fulfill the necessary criteria in order for said Applicant to be considered eligible for immigration to Canada as a federal skilled worker. Within his application the Applicant in this case did not provide sufficient information and detail about his job duties and responsibilities, and therefore did not meet his evidentiary burden and did not establish and fulfill the necessary criteria of the application in question. Immigration officers must assess applications based on the evidence that the Applicant in question provides, and not on their own personal knowledge or assumptions with regards to a given profession or otherwise. In addition, the Applicant provided no excuse or explanation for failing to provide sufficient evidence with regards to the duties carried out under his profession. The Applicants application for immigration to Canada under the federal skilled worker program was therefore dismissed.

RANJIT SINGH IMM-4293-11 2012 FC 360 MARCH 28, 2012 RENNIE J.:

The Applicant in this case was seeking a Canada work permit, however the Officer determined the Applicant’s language proficiency in English was insufficient in order to grant the Applicant a work permit for Canada. While this conclusion was both evident to the Officer and satisfactory in order to deny the work permit in Canada, the officer settled to rely on the difference in earning potential between India and Canada alone, and this in itself is not sufficient as a sole reason for refusing an applicant a temporary Canada work visa. While disparity in earning potential is a fundamental component of the analysis of an application for a Canadian work permit, it cannot be the only part of the analysis. However, as the Officer reasonably determined that the Applicant’s English ability was insufficient to grant a work visa for Canada, this conclusion does not change the negative result of the application.

April

PING GUAN PENG IMM-6144-11 2012 FC 396 APRIL 5, 2012 TREMBLAY-LAMER J.:

The Applicant, his wife and their unborn child were each issued a Canadian permanent resident visa, the latter two visas issues as dependant on the former. When the child was born in the United States due to a problematic pregnancy, the family in question was refused landing into Canada and resultantly returned to their home country, China. When their Canadian permanent resident card’s expired shortly thereafter, the Applicant communicated with the Visa Officer in Canada in order to have his application re-opened and the infant added, similarly to his wife, as another dependant.

At the commencement of the Canada permanent resident application, the Applicant was informed of the necessity to inform Canadian immigration authorities or consulate of any changes to his family composition before his arrival in Canada. Given that the applicant did not follow these instructions, and regardless of the additional time, effort and cost that the Applicant will incur in order to file an entirely new application, the Applicant will not in conclusion be able to proceed with the application he previously submitted but will rather have to file a new Canada permanent resident application.

MASHID AFZAL ET. AL. IMM-3288-11 2012 FC 426 APRIL 13, 2012 TREMBLAY-LAMER J.:

The applicant in this case was a victim of an immigration consultant who was not an authorized Canadian immigration consultant or Canadian immigration lawyer. The ‘consultant’ included fraudulent documentation within the Applicant’s file with regards to a standardized language test recognized by immigration Canada. However it is the duty of the Applicant in question to ensure when making an application, that the documents included are complete and accurate, therefore it is the Applicant who will be held responsible for the contents of an application, which he or she has signed. Therefore the request on behalf of the Applicant that she not be penalized for the misrepresentation initiated initially by the unauthorized Canada immigration consultant is dismissed.

LUIS ENRIQUE RODRIGUEZ ET. AL. IMM-5046-11 2012 FC 437 APRIL 16, 2012

In an application for a Canadian permanent resident card, the Canadian immigration Applicant in question did not declare that he had dependent children. Although this was later interpreted as a simple inadvertence, this inadvertence does not constitute a compelling reason to accept a humanitarian and compassionate (H&C) application. The question in this case is wheter the Canada immigration Visa Officer committed a reviewable error in his consideration of the evidence. Following the interviews, the Officer concluded that the Applicant in question and his children did not have a sufficient degree of ongoing relationship to warrant H&C consideration.

There was sufficient evidence before the immigration Canada Officer regarding the lack of relationship between the initial Applicant in question and the current applicants being his children who were left out of the orriginal application inadvertently, to support the Officers conclusion of refusal. Such evidence included the fact that the initial Applicant had immigrated to Canada and left his children– the current applicants– behind, that he had relinquished custody of them, and that, in recent years, he had visited the current applicants only infrequently. Accordingly, this conslusion is reasonable, a reviewable error was not committed by the Canada Visa Officer on this case and the applicant’s application was resultantly refused.

NEWN SHIN LI IMM_2346-11 2012 FC 484 APRIL 25, 2012

The Canadian immigration Visa Officer in this case found that the immigration Canada applicant did not meet the English language requirement according to the Labour Market Opinion (LMO) nor the work experience criteria for his profession of choice. Although the Applicant submitted academic records, which specified passing grades in English, the Applicant did not meet the English requirements according to the LMO and this according to the Officer. While these grades were not high, there was no evidence which could prove them to be inadequate for the requirements specified in the LMO.

In terms of the proof of work experience submitted by the Applicant in question, reference letters were provided, which speak highly of the Canada work permit Applicant as a chef with many years of experience and a particular skill set in Asian food preparation, his profession of choice. Both the evidence provided by the Canadian work permit Applicant and his cultural heritage (Asian) makes it difficult to comply with the Officers opinion that the Applicant would be unable to perform the work sought.

Procedural fairness demands that the Canada immigration Visa Officer give the work permit Canada candidate the opportunity to respond to the Officers concerns. The Officers failure to grant the Applicant the opportunity to respond to his concerns resulted in a breach of procedural fairness and consequently the Canada work visa application was allowed.

May

NESTOR DIAZ OVALLE IMM-3764-11 2012 FC 507 MAY 2, 2012

The Applicant in question applied under the skilled worker Canada program and was HIV positive. The Canadian immigration Applicant argues that the Visa Officer failed to consider the Applicants detailed plan for managing his medical expenses when refusing his Canada immigration application. The Officer instead relied on the opinion of a medical doctor who expressed his concern with regards to the amount of treatment and the cost of this treatment that the Applicant in question would require.

The Officer gave the Applicant the chance to submit a plan to offset the demand he might impose on Canadian services and in response the Applicant agreed to assume responsibility for all social services he would require in Canada and agreed that he would not look to the federal or provincial government to fund those services. The issue at hand was whether the Applicant would impose an excessive demand on Canadian resources; however the Officer did not address that issue in his reasons. The Canadian immigration Officer did not explain why, given the Applicants detailed plan to cover the cost of his medication, remained medically inadmissible to Canada therefore his conclusion was unreasonable and the immigration Canada application allowed.

AMARJEET SINGH V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MAY 3, 2012
The Applicant, a citizen of India, was denied a study permit in Canada while studying in the UK on a temporary basis. The Applicant had applied for studies in his field below the academic level he had obtained. It was unclear why the Applicant would not remain in the UK to complete his current program, as planned.

The Applicant had temporary residence in the UK and very limited ties to India indicate a strong likelihood that the Applicant was not likely to depart Canada at the expiration of his visa. The Applicant has strong family ties to Canada and is highly mobile since he is young, single, and without any dependents.

The Officer was not convinced that the Applicant would leave Canada at the end of his stay. Evidence submitted by the Applicant and, primarily, the Applicant’s failure to explain fully why his education required him to come to Canada, as opposed to being completed where he was in the UK, led the Officer to this conclusion. The appeal was dismissed.

SARDA SAMI V. CANADA (MINISTER OF CITIZENSHIP & IMMIGRATION) MAY 4, 2012
The Applicant was born in Fiji and is a Canadian citizen. Her husband, Dhindsa, is a citizen of India. In 2005, the Applicant submitted a sponsorship application to bring Dhindsa to Canada. CIC doubted the genuineness of the marriage based on incongruity between Dhindsa’s occupation as a Sikh priest and his marriage to the Hindu Applicant. The Applicant has submitted evidence she has visited her husband, photographs, and telephone records to demonstrate they have strengthened their marriage over the past seven years. The main issue in this case dealt with the applicant’s ability to submit additional evidence at different stages of the appeal process. Since the first appeal, the couple has maintained ongoing communication, cohabited numerous times, and shown financial dependence on each other. The appeal was allowed.

IRINA GRISCENKO IMM-871-11 2012 FC 614 MAY 22, 2012

The Applicant claimed to be self-employed with internationally recognized experience in her application for permanent residence. The Applicant has resided in Canada since September 28, 2010 on a temporary work permit. She is employed full-time as a Russian drama teacher at Discovery Academy in Toronto. The Applicant outlined ten years’ experience in Russian and Latvian drama choreography, stage management, acting, directing, and theatre education. She cited association with festivals and diplomas as evidence of world-class and internationally recognized experience.

The Officer concluded that the Applicant did not meet the criteria of a self-employed person based on her employment history. The Applicant had worked as a Russian drama teacher at Ventspils House of Arts in Latvia from 1993-2010 and as a full-time teacher at Discovery Academy in Canada since then.

Furthermore, the Applicant’s experience organizing festivals in Latvia does not constitute world-class experience. While such experience is of local importance, it is not internationally recognizable.

The Officer referenced a Google search in which he was unsuccessful in finding any information that would support the Applicant’s claim of world-class experience. The Court held that the Officer was reasonable to conclude that the Applicant had made unsubstantiated claims. The appeal was dismissed.

PREET DEEP SINGH DATTA 2012 FC 626 IMM-4032-12 MAY 23, 2012

The Canadian immigration Applicant was applying to obtain an injunction with regards to a federal Bill that has yet to be passed, therefore there is nothing to enjoin and nothing has yet occurred that is prejudicial to the Canada immigration application in question. The motion for injunction was therefore refused with costs of $750 payable to the respondent.

June

SOOK JUNG IMM-5113-11 2012 FC 693 JUNE 5, 2012

The Applicant in question applied as a dependent child as she is said to be battling depression. The Officer prudently reviewed the evidence presented to establish whether the Applicant’s dependency meets the criteria for a dependent child. The Officer perceived the absence of a letter from a medical specialist as a lack of evidence that the Applicant had pursued ongoing medical treatment since diagnosis, as the Applicant claimed status as a dependent child much later. Also, her condition was merely supported by a letter from Dr. S. Choe, who has been caring for the Applicant since 2005. In her letter, Dr. S. Choe confirms the Applicant has been depressed and homebound for two years. She also mentions that the Applicant experienced difficulty in finding a job due to her depression.

The Officer determined that the evidence presented did not satisfy this additional ground to be considered a dependent child. Especially considering that the Applicant had managed part-time work. The Court held that the Officer was reasonable in perceiving a lack of persuasive evidence that the Applicant met the criteria to be considered a dependent child. The appeal was dismissed.

SARABJIT SINGH SEKHON IMM-4657-11 2012 FC 700 JUNE 6, 2012

The Applicant in question applied for permanent residence following an offer for continued employment as a teacher at a school. The Applicant only appeared on the Employer’s payroll as of October 2010, when he was instructed to provide proof of employment. Additionally, his tax records showed an annual income of $33,523—which amounts to 24 hours a week—not full-time employment. The Officer expressed her concerns and the Applicant provided documentary evidence of income reduction based on time off due to illness and renovations at the facility, and an accounting error on the payroll. The Applicant even had parents corroborate his story by providing letters and photographs of the school.

The Officer rejected the accountant’s explanations and concluded that the evidence adduced did not verify that parents had paid tuition or that students had been educated in a proper classroom. The officer also remarked that the school’s address was in a residential area. The Officer never expressed her specific concerns about the school’s location and its ability to pay the Applicant’s salary. The Court found that the Applicant had addressed the Officer’s initial concerns and would have been unaware of any additional concerns. The appeal is allowed.

PHUANGPHEN GRUSAS IMM-5828-11 2012 FC 733 JUNE 12, 2012

The Applicant in question applied for a work permit for a cook position in a Thai restaurant. The position required three years’ experience as a specialized Thai cook in addition to formal certification as a cook. Though the Applicant was formally certified, the Officer found that the work experience she claimed to have was irrelevant to the position. An interview was conducted and the Applicant confessed that she had no experience as a cook, her restaurant experience was as a waitress. Naturally, the Officer decided that her experience as a waitress does not demonstrate she is qualified for the position as a cook. The job description in no way implies that her experience as a waitress would supplement the necessary experience as a cook. The Applicant requested that the Court recognize her formal credentials and other work experience as superseding her lack of experience as a cook. However, this is not the function of the Court. The appeal was dismissed.

July

HARKAMALJIT KAM NIJJAR IMM-238-12 2012 FC 903 JULY 19, 2012

The Applicants were suspected of marrying out of convenience in order to obtain Canadian permanent residence. The couple had conceived a child together and—had it not been for a miscarriage—would currently be sharing the responsibility for a sixteen month old child. However, the Officer discovered significant gaps and inconsistencies in the evidence adduced to support their marriage. Consequently, the Officer decided that the marriage was not genuine. The Court held that by overlooking important information, such as the conception of a child, the Officer had exaggerated these shortcomings. The Officer did not weigh the conception of a child against the gaps and inconsistencies in the evidence provided to support their marriage. The Court held that a reasonable decision regarding the genuineness of their marriage would weigh the conception of a child heavily into account. The appeal is allowed.

September

SHILPI SABLOK IMM-145-12 2012 FC 1069 SEPTEMBER 10, 2012

The Applicant claimed to be employed by a computer college run by her husband. The Officer conducted telephone interviews with the Husband and with the Applicant, and found that the information provided did not match. The Officer was unconvinced by the Applicant’s explanation as to why the information was incompatible. As the employer, the Husband would not have had any obvious motive to provide erroneous information.

The Officer believed that given her marriage to the employer, the Applicant had used unlimited access to office stationary to misrepresent her employment. Consequently, information obtained through the telephone interviews was more credible than the information provided in the supporting documents. The Applicant was given the opportunity to address the Officer`s concern in which ever manner she chose. The Applicant chose to submit additional documents which were then considered in comparison to the verbal information previously given by her Husband. The Court found that the Officer was reasonable in weighing the new evidence against that which had already been established. The appeal was dismissed.

JESUS OCTAVIO PEREZ ENRIQUEZ IMM-411-12 2012 FC 1091 SEPTEMBER 19, 2012

The Applicant had applied for a NAFTA work visa using a November 2010 employment offer from Mysteriously Yours Inc. The Applicant had previously worked as a management consultant with the company since January 21, 2008. He did not submit any documents to verify that his position as a management consultant was full-time. The only readable payslip demonstrated a maximum of six months of employment and did not include The Applicant’s role within the company. The Applicant submitted that he was laid off in January 2011 following the November 2010 employment offer. Overall, the Applicant had not been employed for a full year. Additionally, the 2010 offer of employment letter merely stated that the Applicant had worked for the company and that the permanent position was full-time. Therefore, it was reasonable for the Officer to believe that the Applicant’s prior position had been only part-time. The Officer found that there was no evidence that the Applicant had met the NAFTA work visa requirement of full-time employment for a full year. The Court upheld this decision, and the appeal was dismissed.

LI ZHI LI IMM-1444-12 2012 FC 1099 SEPTEMBER 20, 2012

The Applicant had applied for a temporary resident visa to visit his son who is a permanent resident. The Applicant`s property certificates appeared peculiar to The Visa Officer therefore, an investigation was conducted by the Anti-Fraud Unit. The certificates were found to be manufactured. The Officer held that the Applicant misrepresented his property holdings which had been presented as evidence of his ties to China. The Applicant`s son insisted that his father had submitted additional documents, such as hydro bills and the demolition agreement for one of the properties, to verify ownership. These documents remain undated, unsigned, and without a date of receipt. Furthermore, the Applicant did not keep copies of the documents themselves. The Court held that the Officer was reasonable in providing the Applicant with an opportunity to respond to his finding that the documents were manufactured. The Applicant did not provide a sufficient response to the Officer`s concern. The appeal was dismissed.

October

MOHAMMADREZA KHORASGANI ET. AL. IMM-2090-12 2012 FC 1177 OCTOBER 9, 2012

The Applicants had submitted counterfeit English test results in their application for permanent residence. In April 2012, nine cases which were substantially similar to the present case resulted in identical decisions made by Madam Justice Tremblay-Lamer. Like the previous Applicants, the Applicants in this case were Iranian citizens who had hired the same immigration consultant. The application was rejected once the Visa Officer identified the IELTS results as fake. The Court held that the submission of false English test results was not a genuine mistake on the part of the Applicants and therefore, did not merit an excuse. However, following the completion of the inadmissibility period, the Applicants may begin a new application for permanent residence. The appeal was dismissed.

BALJIT KAUR DHALIWAL IMM-1211-12 2012 FC 1182 OCTOBER 10, 2012

The Applicant had applied five times to sponsor her husband, Jaswant Singh Dhaliwal, to come to Canada permanently. Each application was rejected in turn based on a lack of evidence to support their marriage. The Officers believed that the couple had married out of convenience in order for Dhaliwal to gain access to Canada. The Applicant was now applying for a sixth time. The sixth application included the birth of the Applicant’s child in Canada, a change in circumstances since the fifth application had been submitted. The Applicant claims that Dhaliwal is the child’s father which has not been disputed. The Officer considered the birth of the couple’s child and decided that it did not constitute conclusive new evidence capable of overriding previous decisions. The Court upheld this decision, and the appeal was dismissed.

MARDON USMANOV IMM-1623-12 2012 FC 1238 OCTOBER 29, 2012

The Applicant in question applied for a study permit in order to complete a 24-week French as a second language program in Montréal. The Applicant is a citizen of Uzbekistan currently living in Russia. Documents were submitted to the effect that the Applicant had been accepted to the program and would be residing with his sister and brother-in-law during that time. The Officer was unconvinced that the Applicant would leave Canada at the end of his approved stay based on insufficient ties to Russia and a lack of rationality concerning his proposed studies. Considering The Applicant had been residing in Russia on a work permit and that he had said he was working as a tile installer, the Officer found the lack of proof of income demonstrated insufficient ties to Russia. The Officer had no such concern about the Applicant’s ties to Uzbekistan, where his father, brother and sister reside. Additionally, the Officer concluded that the Applicant’s intention of learning French to prepare him for a tile installation course was not realistic because a second language course would not prepare him for learning technical concepts. The Court upheld the Officer’s decision and consequently, the appeal was dismissed.

ZHENCHUAN XIE IMM-1881-12 2012 FC 1239 OCTOBER 29, 2012

The Applicant is a Chinese citizen who applied for a work permit for a position in a restaurant. He completed culinary studies in 2006 and has since worked as a Chef in China. The Applicant submitted a declaration explaining why he would not remain in Canada at the end of his authorized stay. The Officer was unconvinced that the Applicant would leave based on his lack of travel, his position being easily filled and his modest financial status. The Officer concluded that the Applicant’s ties to China were weak and that strong family ties to Canada gave him an incentive to stay.

In his declaration, the Applicant pledged to leave Canada prior to the expiration of his work permit. He declared that a return ticket to China would be provided by his prospective employer and acknowledged the consequences of staying in Canada illegally. The Applicant also cited family and his girlfriend as incentives to return to China. In reviewing the case, the Court found that the Officer did not weigh the Applicant’s declaration against the other evidence. The declaration was essential in determining that the Applicant would leave Canada at the end of his approved stay. The appeal is allowed.

November

GURPREET SINGH ET. AL. IMM-7785-11 2012 FC 1302 NOVEMBER 7, 2012

The Applicants in question had declared Gurpreet as a dependent child in their application for permanent residence. However, Gurpreet was deleted from the application because the Officer was unconvinced that he was the adopted child of Mr. and Mrs. Singh. A lack of family photos with Gurpreet did not help his case nor did the submitted adoption papers which had been registered only recently. While speaking with the Officer, Mr. Singh was given multiple opportunities to state that an adoption ceremony had taken place. Mr. Singh made no such statement and did not dispute the Officer’s claim that one had never occurred. Following the Officer’s removal of Gurpreet from the Application, Mr. Singh issued a letter stating that he would not protest the decision. Mr. Singh’s actions illustrate blatant acceptance that he was caught in a lie and had no defense. Consequently, the appeal was dismissed.

December

SUKHCHAINPREET SINGH SIDHU IMM-3327-11 2012 FC 1533 DECEMBER 20, 2012

The Applicant in question was found inadmissible for organized criminality following charges of drug trafficking. The Applicant argued that organized criminality was contingent on membership within a criminal organization, which he was not. The Officer rejected this claim and stated that the scope of organized criminality includes involvement of more than one individual in an organized criminal activity, which he had been by importing drugs across international borders. The Court held that the Applicant had bought a vehicle and a mobile phone, drove to the border, transported marijuana across the border, and delivered the marijuana to another vehicle, all in sequence of a drug smuggling operation. The Court considered the operation to be organized criminality and consequently, the appeal was dismissed.

THARSINI THIRUGUANASAMBANDAMURTHY IMM-1738-12 2012 FC 1518 DECEMBER 20, 2012

The Applicant was a 21 year old single woman from Sri Lanka. She had applied for a student visa four times prior and been refused each time. The Applicant had an aunt and grandmother in Canada. She had been unemployed since August 2009 and stated that her mother’s brothers would finance her expenses abroad. She sought to complete previous studies undertaken in Sri Lanka, at York University in Canada. She wished to obtain a Canadian degree to ensure employment within the Sri Lankan tech sector.
The officer noted that the Applicant’s uncles resided in Australia and the United Kingdom and suspected that she was merely trying to gain entrance to Canada. The Court held that transfers of funds from immigrants in wealthy countries to their family members in less developed countries are extremely common. Furthermore, the Officer’s concern was unreasonable based on the Applicant having provided proof of access to the funds required to support herself abroad. The Court also found that the Officer was unreasonable in establishing the Applicant’s weak ties to Sri Lanka based on the number of family members residing in Sri Lanka as opposed to the strength of the relationships between them. The appeal is allowed.

2013

January

KEVIN DONALD STORDOCK IMM-3164-12 2013 FC 16 JANUARY 9, 2013

The Applicant requested to extend his Temporary Resident Permit indefinitely while his wife’s application for spousal sponsorship is processed. The Applicant had previously been convicted of a number of driving offences and possession of marijuana. He was issued a number of fines, which remained unpaid for several years. The Applicant was granted a Temporary Resident Permit in order to attend his brother-in-law’s wedding. However, the Applicant has remained in Canada since then and is currently requesting an extension to his permit in order to remain with his wife and daughter. When an Applicant has overstayed the limit of his Permanent Resident Permit, he must provide compelling reasons for an extension. The Applicant has not done so. He has merely stated his desire to remain with his wife and daughter. Unlike an H&C application, the Officer is not required to consider the best interests of the child in considering a Temporary Resident Permit. The Court held that even if the child’s best interest was taken into account, there was no evidence adduced to indicate how the Applicant’s presence in Canada would affect the child. This appeal was dismissed.

February

NADIA ZANCHETTA IMM-7573-12 2013 FC 195 FEBRUARY 28, 2013

The Applicant is a Canadian citizen who applied for sponsorship of her husband who is an American citizen. The couple has three children together who are Canadian citizens. The Applicant’s husband was convicted in New Jersey of burglary in 1995 and possession of a weapon in 1996. The husband has been living and working illegally in Canada since he entered as a visitor in 2005.

The Court held that the family situation would likely have outweighed the husband’s inadmissibility had it been based solely on his criminality. However, by intentionally misleading Canadian immigration authorities the husband demonstrated a blatant disregard for the law. Therefore, the Court would not award discretionary relief.

The Court found that the continued presence of their father would be in the best interest of the children. However, the best interest of the children was considered seriously but not dispositive since there was no evidence that the family could not live with the husband in the United States.

The husband attributed misrepresentation of his residential address and employment record to mistakes. However, the Court found that the husband lacked credibility and concluded that he had directly misrepresented material facts of his illegal stay and employment in Canada.

The Court concluded that the husband’s return to the United States would not cause disproportionate hardship since he was legally authorized to work in the United States. The appeal was dismissed.

March

KHATEREH MAHOURI IMM-5441-12 2013 FC 244 MARCH 7, 2013

The Iranian-educated Applicant applied for the Federal Skilled Worker program claiming she had medical credentials at the graduate level. She provided her diplomas and transcripts for her “Doctorate Degree of Medicine” and “specialty degree” issued by Shiraz University of Medical Sciences. The Applicant’s husband had submitted diplomas and transcripts for his “Doctorate of Medical Science” and “specialty degree” also issued by the Shiraz University of Medical Sciences. The Officer found that both the Applicant’s and the Applicant’s husband’s medical degrees and specialization degrees were at the bachelor’s level.

Despite the submission of degrees verifying that the Applicant and her husband were enrolled in Professional Doctorate Programs at the Shiraz University of Medical Sciences and the fact that the Applicant had passed her examinations in social medicine, there was no evidence that the bachelor’s level credentials were recognized at the graduate level by local authorities responsible for medical practice. The Officer concluded that the Applicant’s credentials did not satisfy graduate level criteria. The Court found that the Officer used proper discretion in reaching this decision. The appeal was dismissed.

SYED WAQAS ALI GILANI IMM-2969-12 2013 FC 243 MARCH 7, 2013. KANE J.

The Applicant was accused of marriage fraud following sponsorship by his wife. The CBSA conducted an investigation which led to the Applicant’s arrest following the discovery that the Applicant was not residing with his sponsor, but rather with his sister. It was also noted that his sponsor failed to advise authorities that she was married in her registration for the Ontario Disabilities Support Pension.

The Officer weighed the evidence adduced by the investigation against the Applicant’s assertion that he spent time at his sister’s home to help with her young family. The Applicant admitted to leaving his sponsor’s home temporarily in January 2011 following her miscarriage in November 2010 but claimed that the time apart was not intended as marital separation. Friends and relatives corroborated the Applicant’s story however; the Officer concluded that declarations made by individuals close to the Applicant were self-serving and unreliable. The Applicant’s account of his sponsor’s pregnancy and miscarriage was inconsistent with that of the sponsor. The Applicant’s phone bills were most likely issued to his sister’s home because he resided there. Additionally, the sponsor was unable to verify that she had made attempts to change her marital status on her Disability Pension registration.

The Court held that the Officer clearly addressed the concerns raised by the CBSA investigation in a letter sent to the Applicant and the Applicant made assertions in response. Therefore, there was no breach of procedural fairness. The appeal was dismissed.

ABU ASIM HAMZA IMM-3693-12 2013 FC 264 MARCH 12, 2013

The Applicant applied for the Federal Skilled Worker program under NOC 3112: General practitioners and family physicians. The Applicant submitted a written declaration detailing his work at his own clinic and an employment letter from Dr. Haroon, the Medical Superintendent at the Government Hospital of Karach. Dr. Haroon stated that the Applicant has been working at the hospital as a family physician, and that he has been performing the duties set out in the NOC. The Officer deemed the letter to be self-serving and found it insufficient without other supporting documents to establish the Applicant’s work experience.

The Court held that Applicants are not required to provide more than one employment letter to verify work experience. As long as a single employment letter covers the full scope of the main duties performed by the Applicant, an application can be deemed complete. Though the Officer was not unreasonable in having doubts as to whether the employment letter accurately portrayed the Applicant’s role, the Officer should have given the Applicant an opportunity to address her concerns prior to making a decision. The appeal is allowed.

TEJINDER SINGH IMM-2613-12 2013 FC 295 MARCH 22, 2013
The Applicant applied to retain permanent residency in Canada on the grounds that it would be in the best interest of his three children who live in Canada. However, the Applicant failed to comply with the residency obligations required for permanent residence status. He supplied a vague and lacking testimony to support his application. The Applicant’s testimony was notably insufficient regarding the details of his first marriage and the resulting children, his landing in Canada as well as his business dealings in both Canada and India. Additionally, the Applicant omitted to admit he is currently remarried since 2007 and has a son living in India despite numerous questions regarding his marital status and his children. Due to these issues, the Applicant’s testimony was considered to be neither credible nor trustworthy. The IAD felt that the Applicant’s children living in Canada would not be further negatively affected by their father’s continued absence as they have already experienced this for many years. The application was dismissed.

SAU LING TONG IMM-5918-12 2013 FC 312 MARCH 26, 2013
Officers reviewing applications are entitled to examine discrepancies in the evidence provided. The application in question was the Sponsor’s third time sponsoring a spouse from China. Given the Sponsor’s immigration application history, this was such a situation where the Officer was permitted to closely examine issues that in other applications would be seen as inconsequential. The Sponsor’s previous marriages were relatively short, being between 3 and 4 years in length. This lead to suspicions of whether the marriages were genuine or merely for immigration purposes. Adding to this suspicion was an inconsistency of why the Sponsor’s first marriage failed; documentation cited infidelity while the Sponsor explained it was because the couple disagreed on where they should live. In the application at hand, the Officer had suspicions on whether the Applicant was actually employed in Canada and on her intended residence upon arrival. When sponsoring a spouse for the purposes of permanent residency, the couple has the burden to explain the intricacies of their relationship; how they came to be and how coming to Canada is a part of their relationship. The Applicant and Sponsor explained their relationship in a manner which showed that the purpose of their relationship was permanent residency and not the continuation of their connection. Should any gaps be present in the information provided, the couple must supply sufficient explanations for their history discrepancies. Therefore, the application was dismissed.

April

EMAD AGEEB EKLADIOUS MANSOUR ET. EL. IMM-4492-12 2013 FC 343 APRIL 5, 2013
The Applicant applied for permanent residence under the NOC category 0711, Construction Manager. The Respondent argued that the Applicant had not provided any evidence in his application demonstrating work experience as a “Construction Manager” under NOC -0711. To support this claim, the Respondent provided case notes included in a CAIPS Notes entry. CAIPS Notes (acronym for Computer Assisted Immigration Processing System)is an automated system used to process immigration applications outside of Canada. The Applicant included in his application package a letter from his long standing employer explaining the evolution of his employment; from Civil Engineer to Construction Manager. The duties outlined in this employer’s letter clearly match and overlap the job task examples required under this job category. The Visa Officer who reviewed the Applicant’s application did not include this letter in his reasoning. The employer’s letter can be understood to be a job description. The issue was regarding form and not substance. The Applicant’s application was allowed.

JULIUS FRANCIS PINTO IMM-4585-12 2013 FC 349 APRIL 8, 2013

The Applicant sought permanent residence under the NOC category 0111, Financial Managers. He supplied a thorough job description and three references to support his application. The Applicant previously held the position of “Manager, Corporate Banking” at HSBC Dubai. The Officer responsible for reviewing the application rejected it and supplied a brief explanation for her reasoning. The Officer felt that the job description and tasks for a Manager of Corporate Banking did not match the NOC-0111 requirements even though there were some similarities. Later the Officer provided an affidavit giving additional explanations for the application’s rejection. The judge ruled this information inadmissible because it was unnecessary; the prior brief explanation was sufficient. According to the judge it was obvious the Applicant’s position at HSBC was not that of a Financial Manager. Therefore the Officer’s decision stood; the Applicant was rejected.

OLUDARE AYODELE KOMOLAFE IMM-4639-12 2013 FC 431 APRIL 25, 2013

The applicant is employed as a Quarry Supervisor in Nigeria. The Agent felt that the applicant did not complete the actions outlined in the lead statement for his occupation but did not explain on what basis this conclusion was founded. Three months later the Agent made an affidavit explaining her reasoning. Doubt was cast on its reliability and it was found to be inadmissible. When comparing the NOC 7372 (“Drillers and Blasters – Surface Mining, Quarrying and Construction”) with the tasks the Applicant claimed to have completed, several of them can be found to correspond to each other. It is the Agent’s responsibility to determine if the tasks of a worker and of a NOC Code are compatible and to provide his or her reasoning and not the Judge. Here, the Agent stated her conclusion and provided no explanation. The Judge references the Newfoundland and Labrador Nurses Union case ([2011] 3 SCR 708) to show how the lack of clarification by the Agent could be explained by the Judge or the court only if there are some indications or hints present. Seeing as here there were no indications as to the Agent’s reasoning, the flexibility afforded by the Newfoundland and Labrador Nurses Union case does not apply. The Application was allowed.

GRANT PETER KIMBALL IMM-8259-12 FC 428 APRIL 29, 2013

The Applicant is a 68 year old American Citizen. He was employed for a number of years as a Software Engineer in Canada. However, due to corporate restructuring, the Applicant found himself unemployed in 2010. After an unsuccessful 22 month employment search the Officer came to the conclusion that the Applicant was unlikely to establish himself economically in Canada. The Applicant did not provide details into the circumstances of his job search. Due to this lack of evidence the Applicant cannot claim he was denied certain rights associated with procedural fairness. Given the circumstances it is only logical to conclude that the Applicant is unlikely to find work given the length of his job search. The Judge drew a comparison to the Philbean case where a substituted decision based on the failure to engage in a successful job search was seen as reasonable. The Philbean case concerns an Applicant’s ability and willingness to find employment. Based on age, previous retirement, lack of steps towards obtaining certification and employment, and a lack of positive LMO for the Applicant’s husband the Philbean Application was denied. The Judge at hand therefore applied the same reasoning as the Philbean case. The Court’s role is not to be a substitute for an Officer and the Officer reviewing the Application’s negative decision did not lack reasoning, transparency or intelligibility. The Application was dismissed.

May

CARLOS SANTANA IMM-9085-12 2013 CF 477 MAY 7, 2013

The Court concluded that the Applicant did not commit an isolated criminal act but rather is a multiple offender given his series of previous convictions. These convictions include trespassing at night and possession of drugs and other illegal substances. The Applicant claims to no longer have ties to his home country of Venezuela but admits to having the necessary language base for the country. The Applicant did not submit proof that his psychiatric condition could not be treated in Venezuela. While the Applicant has not reoffended since 2008, he has not demonstrated his rehabilitation given his continued use of drugs and alcohol. In comparison to the facts outlined in the Khosa case, the Applicant’s level of establishment in Canada and its effect on his Canadian family are seen to be less important. The Application was dismissed.

LIDIA FAVELUKIS IMM-10500-12 2013 FC 480 MAY 7, 2013

The Applicant sought to remain in Canada on the grounds that it would be in the best interest of her grandchildren. The limited information submitted to support this claim included: the Applicant and her grandchildren are very close, they spend a lot of time together and the children do not want the Applicant to return to Israel. While the Officer’s decision may not have been as clear as it could have been, he did consider the presented elements and weighed the benefits of the Applicant remaining in Canada against the potential negative impact on her grandchildren. The conclusion was that while the separation of grandmother and grandchildren would be difficult, the effect would be lessened by the ease of travel between Canada and Israel; visas are not required to visit and the Applicant can return when desired. Given the limited number of submissions based on the interests of grandchildren, nothing more was required in the Application. The Application was dismissed.

HD MINING INT’L LTD ET AL. IMM-11316-12 2013 FC 512 MAY 21, 2013

The case assesses whether the Officer was reasonable in his positive LMO decision and it is the first time a positive decision under the Temporary Foreign Worker Program has been challenged. The Officer awarded positive LMOs and suspicion was raised whether the Officer was pressured by his superiors to award a positive LMO. The judge found that the Officer was not fettered in his decision. It was raised that the Officer’s assessment was potentially unreasonable with respect to the requirements of NOC 8411 (“Underground Mine Service and Support Workers”) and it was found that when comparing the NOC 8411 requirements against the job posting in question, there was no real deviation. There was a labor shortage and the Applicants’ claims that the job requirements were excessive were unfounded. Part of having a Temporary Foreign Worker Program is that it is temporary in nature with a plan to transition to a Canadian workforce. The transition here will occur after the expiration of the positive LMO and will be established to the satisfaction of a different Officer. The central concern is regarding if the Applicants failed to make reasonable efforts to hire Canadians. Due to the labor shortage in the mining industry and even though two firms were engaged in recruitment efforts, the low yield of Canadian applicants was reasonable. A small number of Canadian interviewees is not sufficient to raise such suspicions. The Officer completed his task properly which led the Judge to dismiss the Application.

June

KONSTANTIN ULYBIN IMM-5431-12 2013 FC 6269 JUNE 11, 2013

The Applicant is a Russian citizen with permanent residency status in Spain seeking to gain Investor status in Canada. The Applicant was convicted in Spain of offences relating to workers’ rights and gross negligence manslaughter. The Applicant claimed that the Officer erred in finding the essential equivalencies between his offences and those in the Canadian Criminal Code. The Officer sought an NHQ (National Headquarters) opinion to help him in his determinations. The NHQ opinion was not related to the Applicant which lead to a challenge in his meaningful participation in the decision making process. The Applicant did participate through his knowledge of the allegations and his submissions regarding his offences. While procedural fairness in visa cases is deemed to be on the lower end of the spectrum; it was deemed that there was no such breach. The Officer determined the Applicant was in a position of authority due to his ability to direct the commencement of work without the proper safety precautions in place. The Judge found that the Officer’s view was consistent with case law and the Spanish statutes. Criminal negligence occurs when a person’s behavior and actions are markedly different from that of a reasonably prudent person placed in a similar situation. The due diligence associated with criminal negligence was not ignored by the Officer. Despite the presented mitigating factors, the Officer was open to conclude that the Applicant took unreasonable risks. The Applicant did not satisfy his duty to prove that the Officer erred. The Application was dismissed.

JASPREET SINGH SANDHAR IMM-10810-12 2013 FC 662 JUNE 20, 2013

The case surrounds the genuineness of an arranged marriage organized by members of the couples’ extended family. The IAD concluded that the marriage was solely for the purposes of gaining status. The factors that led the IAD to this conclusion include: the agreement of the bride’s parents to marry their only child to a divorcé, the haste in the engagement and wedding ceremony, the high incompatibility between the couple and the lack of evidence of an on-going relationship since their wedding. The Judge was persuaded by the Gill case (2010 FCC 122) which outlined the necessity to not analyse arranged marriages through a western lens; such a marriage will automatically appear to be non-genuine. In response to the IAD concerns regarding the prior divorce, the bride’s family had knowledge of it and it was not a determining factor for the family. While the IAD focused on the incompatibilities of the couple, they omitted to highlight their important common bonds: language, religion, age and background. The Gill case states that the presence of a child easily determines the genuineness of a marriage. The Judge found that in no way is this the determinative factor. The application was allowed.

TSERING LHAMO IMM-7302-12 2013 FC 692 JUNE 20, 2013

The Applicant indicated that he had two biological children on his Application. DNA testing revealed that one child was the son of his wife and her former husband. The Applicant completed his Application in this manner because he was unaware that non-biological children can be included as family members. Being truthful is a requirement when completing immigration applications. However, a combination of being truthful and being not inadmissible doesn’t automatically result in a visa being granted. The Applicant argued that his lack of truthfulness should not induce an error in his application because his son is admissible to Canada, regardless of biological status. According to Section 11 of the Immigration Act, officers have discretion in their decision to grant a Visa and therefore it is speculative for the Applicant to submit that had he told the truth he would have been granted a visa. The application was dismissed.

July

SUMAN RAJ SAPKOTA IMM-8311-12 2013 FC 790 July 15, 2013

The Applicant was a member for 18 years of an organization that was known to be involved with the commission of crimes against humanity. The issue was that the Applicant remained a member of the group despite their continued human rights abuses. The applicant did not provide proof that he disapproved of the group’s actions. The initial decision was clear and meticulous thus leading to the application appeal to be dismissed.

MUHAMMAD NAVEED MANFA IMM-7940-12 2013 FC 799 July 18, 2013

The Applicant and his brother wanted to build an interfaith English school in their home country. The designated land was removed from the brothers’ property. When examining the application, the board deemed the removal of the plot of land to be the result of a simple land dispute. The examining board did not connect the removal of the land with potential religious and or political motivation. The appeal gave reason to the Applicant because an issue at the core of the application cannot be ignored. The application was allowed.

GABOR HORVATH ET AL. IMM-8700-12 2013 FC 788 July 15, 2013

When a court is reviewing a decision, it is highly important that the documentary evidence used to come to the previous conclusion is available. In the case at hand, the documents provided to the reviewing court had discrepancies and incomplete elements. With such incomplete information, the reviewing court could not properly dispose of the application for judicial review. This situation is a breach of natural justice. Given that the court was not in a position to draw a conclusion on the state protection analysis, the application was allowed.

DARLEY SANTANILLA ET AL. IMM-8790-12 2013 FC 656 June 14, 2013

The Applicant feared that if he returned to Columbia, he would be killed or harmed by FARC because he had resisted their previous attempts at extortion. There was evidence before the RPD in the form of a UNHCR report in 2005 stating that anyone deemed to hold opposing political views will be extorted of kidnapped. This report was specifically drawn to the RPD’s attention and the Applicant’s council requested that the RPD consider perceived political opinion as a nexus ground. There is no debate that the applicant had no actual political opinion, and this was not addressed in the Decision when they should have been. The UNHCR report contradicts the RPD’s conclusion on the lacking of a political nexus. The RPD failed to fully consider political nexus and abuse under section 96 of the Act and moved directly to section 97 considerations. The application is allowed.

MOHAMAD RASHID YOUSIF IMM-8790-12 2013 FC 656 June 14, 2013

The applicant received a doctor’s note that confirmed his story of being detained and abused by Syrian authorities. The respondent asserts that the note should be given less importance because the applicant failed to mention his visit to the doctor with an unclear reason why he did not mention it. The court disagrees based on the fact that the note is still a significant piece of evidence. The note’s authenticity was no questioned, and even though the applicant failed to mention the visit, the weight of the note should not be affected. The Board committed an error by assigning little weight to a crucial piece of evidence without justification. The application was allowed.

LUIS FERNANDO RAMOS AGUILAR IMM-9778-12 2013 FC 798 June 26, 2013

The Board believed the applicant’s testimony on facing imminent and targeted risk of death or harm by criminals for the reason that the applicant is Mexican. The Board must make a decision based on documentary evidence that Mexicans face higher risk by criminals than the rest of the general population. The conclusion cannot be simply based off the simple proposition that they face a higher risk. The Board failed to accurately describe the risk facing the applicant and how prevalent the risk is in Mexico. The Application is allowed.

October

NOUH HUSSEIN ABDAKKA HAMAD ET. AL. IMM-7176-12 2013 FC 827 July 29,2013

The applicant has a brother in Canada who is prepared to fund his and his family which he completes his two-year studies in Canada. The applicant applied for a temporary resident visa, as did his wife and children, and both were initially refused. The decisions were overturned for reconsideration based on the Officer’s several false decisions. The Officer concluded that the applicant was not truthful in his claims to come to Canada for the purpose of studying and had other intentions for entering Canada. The Officer’s notes in an interview were different than the notes taken by the applicant in the same interview. The applicant was under an affidavit, and the officer was not. Other evidence that the officer came across was based on speculation rather than evidence. The applicant is entitled to an intelligible decision that reflects the entirety of the case before the officer comes to a decision. The application is allowed.

IQBAL KHOWAJA IMM-5205-12 2013 FC 823 July 26, 2013

Issue of whether the Officer reasonably applied the NOC requirements to the applicant’s evidence. It is not expected that detailed responses be given to each application that has been declined. The applicant application was dismissed on the basis that they provided insufficient evidence that their job matched the main duties listen in NOC 0213 descriptions. In the absence of clarity, the Officer was unable to confirm the information that the applicant was a computer and information systems manager. Further reason for refusal could have been included in the Officer’s letter of dismissal to the applicant, however, the reason given was satisfactory enough. There was no breach of fairness and the Officer’s decision was reasonable. The application is dismissed.

MARIA LUISA RUEDA Y SOTOMAYOR 2013 FC 962 IMM-12757-12 September 18, 2013

The applicant’s (mother) removal from Canada had lead to medical, physical, mental and emotional instability. The applicant’s need to remain in Canada is based on the applicant’s daughter’s need for her mother to remain in the country. The applicant is requesting H&C for her own needs as well as her ability to meet the needs of her daughter in Canada. The applicant meets her daughter’s daily needs, which would not be able to be met if the applicant could not remain in Canada. If the applicant is returned to Mexico, the only option for the daughter would be institutionalization in Canada. The court viewed that the officer did not consider the evidence in its entirety and the challenges that would be faced upon the return of the applicant to Mexico. The application is allowed.

November

MARYAM ATTARZADEH NIYASARY IMM-3136-13 2013 FC 1035 October 11, 2013

The applicant applied for a multiple-entry temporary resident visa (TRV) that would allow her to visit her husband in Canada. The Immigration Officer did not believe that the applicant would return to her country of origin upon the expiration of her TRV, so her application was denied. The applicant had previously applied for a TRV and had been denied with a reasonable explanation by the officer. Upon this application, the officer failed to provide an explanation as to why the application was denied. Accordingly, the decision was deemed unreasonable and the application was allowed.

KULDEEP KAUR IMM-1462-13 2013 FC 1023 October 10, 2013

The applicant is for permanent residence in Canada. The “fairness letter” that was sent to the applicant states that their son’s educational documents have been verified to be fraudulent. This letter was sent on November 9th, but there was no response by the applicant since this letter was written. There was no evidence that the school board was contacted, and it is the board that issued the certificates. Other than that, there was no further evidence to show that the certificates were fraudulent. The applicant has not responded to the procedural fairness efforts. It is seen that the applicant has remained silent since the date that the letter was issued. The decision to declare the applicant inadmissible because of misrepresentation was influenced by the lack of response to the procedural fairness efforts. However, there were letters from the applicant that clearly stated that a response to the concern would be coming shortly. Despite that, the respondent concluded that the lack of response to the November 9th letter is reason for denial. There is confusion why the respondent was in a hurry to conclude a case of permanent residency. There are other documents that support the contention that the applicant’s son attended university, and therefore complete high school, yet the respondent considers that the misrepresentation includes material facts that could have induced an error in the administration of section 40 of the Act. Even though the respondent received the two letters for an extension of time, no response is given and a final determination was made. The decision of the respondent remains unexplained and there was unfair lack of communication with the applicant. The applicant was allowed.

HANAN FOUZI AHM EL ATTAR IMM-11342-12 2012 FC 1012 October 8, 2013

The record that the panel received stated that she only spent 211 days in the five-year period. The respondent’s council stated she was in Canada for 660 days, which is within the days allowed by the IRPA. The respondent filed an Appendix that submits summaries of evidence that she was in Canada for the proper amount of time according to the Act. The applicant argued that the appendix was inadmissible because it includes new evidence, which is not admissible on a judicial review application. The central issue is that the amount of days the respondent needed to have been in Canada to retain her permanent resident status contradicted the requirement of section 28 of the IRPA. There is no way of knowing how the division reached is conclusion even if the record supports the conclusion. That is why the decision must be set aside. The Minister’s application was allowed.

PARWINDER SADANA T-1568 12 2013 FC 1005 October 2, 2013

The applicant was a member of the Nexus program where he entered Canada through the Vancouver International Airport. Without declaring in his E311 Customs Declaration Form, he carried $10,000 Canadian in his carry-on luggage. This declaration is required under section 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17. The applicant blames ongoing emotional distress for his failure in reading this section. The applicant also stated that he mentioned to a CBSA Officer of his possession prior to its discovery, but there was no proof to this statement. Based on the fact that a traveller’s subjective intention is irrelevant when failing to report currency or goods, the decision to revoke the applicant’s Nexus card was reasonable. The application is dismissed.

December

JIA FENG WEN IMM-730-13 2013 FC 1159 NOVEMBER 14, 2013

The Applicant was included as an accompanying dependent on his father’s permanent residency application through the Quebec Investor Class. The Canadian High Commission in Hong Kong, to which the application was submitted, was not satisfied that the Applicant could be defined as a dependent child, despite filing documentation that confirmed he was a full time student and met the definition. In response, the Applicant provided both a transcript confirming his grades and a certificate confirming that he had studied Business Administration from September 2006 to July 2007 at Jiangmen Polytechnic College. The Applicant was then rejected based on a suspicion that he may have misrepresented his school attendance, but the Applicant was not provided an opportunity to explain the discrepancy and respond to the concerns about potential misrepresentation before the rejection was issued. The Judge agreed that the denial of the Applicant’s opportunity to respond to the suspicions constituted a breach in the duty of fairness and the application was allowed.

MAHMOUD SHAABAN IMM-11945-12 2013 FC 1104 OCTOBER 29, 2013

The Applicant applied for permanent residency in 2006 as a Skilled Worker with an employment offer from a Canadian company that was to remain valid until February 2013. An Immigration Officer evaluated the Applicant in 2009 and he was granted 0 points for his employment offer. In 2010, the Applicant requested that his application be reconsidered and the Canadian employer confirmed to the Officer his interest in hiring the Applicant. When the Officer contacted the employer in 2012 to confirm his interest in hiring the Applicant, the employer informed the Officer that the job offer was no longer valid. The Applicant argued that the communication between the Officer and the employer constitutes “extrinsic evidence” and that he should have been given an opportunity to respond to it. The judge found that the communication between the Officer and the Employer did not constitute extrinsic evidence and that it was proper and predictable of the Officer to confirm with the employers whether or not the job offer was still valid. The application was dismissed.

MOJTABA ESMAILI IMM-11086-12 2013 FC 1161 NOVEMBER 14, 2013

The case assesses wrongdoing on behalf of the Immigration Officer in providing a reasonable explanation for the rejection of the Applicant’s application. After the application was rejected, the Applicant’s representative, a consultant, contacted the Canadian Embassy in Ankara to seek reconsideration and an opportunity to provide further documentation, and to claim that procedural fairness had been breached in his case. The embassy did not respond to this communication. The Applicant initially relied on a consultant for assistance with his application, but requested an extension on his application after retaining advice from a law firm and learning of deadlines that affected his case. The judge agreed that an extension should be granted because the Applicant has an arguable case, the Officer provided no reason for rejecting the Applicant’s proof of employment, and because the Officer contributed to the confusion of the Applicant and his consultant by not responding to the consultant’s letter. The application was allowed.

OLGA CAUIA IMM-824-13 2013 FC 1125 NOVEMBER 6, 2013

The Applicant was issued a removal order due to a finding by the Officer at she undermined her credibility by knowingly misrepresenting herself on her initial Temporary Resident Permit application. Despite claiming on the initial application that she intended to return to Moldova and to her fiancée, when questioned by an Officer the Applicant stated that she intended to stay in Canada to help raise her sister’s baby and to escape the political unrest in her home country. When assessing the Applicant and her sponsor, the Officer found that the answers of the couple were non-committal and suggested limited knowledge of one another. The Officer found that the Applicant had limited knowledge of the sponsor’s finances in the period they claimed to have been a couple and that the Applicant and the sponsor did not discuss his children, among other inconsistencies. The judge ruled that these inconsistencies are significant in assessing the daily life of the couple, and the application was dismissed.

DOUGLAS GARY FREEMAN IMM-6304-12 2013 FC 1065 OCTOBER 23, 2013

The Applicant had been living in Canada under an assumed name for approximately 30 years after skipping bail and fleeing to Canada. He had been living in Canada and worked, was married, and raised children without legal status. He was extradited to the United States, but in 2008 his Canadian wife sponsored him to become a Canadian permanent resident. He was deemed inadmissible and his application was denied. There were issues of credibility in his case, as there was evidence of membership in the Black Panther Party despite his sworn denial of membership. While the Applicant had the opportunity to respond to the Officer’s concerns through written submissions, he was never afforded a face-to-face interview with Canadian immigration officials and the Officers assumed him to be a liar without ever meeting him. The purpose of an interview is to give Visa applicants a chance to persuade immigration officials of their position and to give the officials an ability to assess the applicant’s credibility. The judge found that the Applicant was subject to a breach of procedural fairness, but that the actions of the Officer did not demonstrate bad faith or an abuse of power. The application was allowed.

SIEW LAN CHU IMM-9123-12 2013 FC 1057 OCTOBER 22, 2013

The Applicant was denied Canadian permanent residence under the in-Canada spousal class due to contradictory evidence and inaccurate explanations. The couple provided inconsistent answers about a variety of aspects of their relationship, including their cohabitation before marriage, the circumstances of the marriage proposal, and the events following the marriage ceremony. The husband also did not know the wife’s first language. The Judge found that these contradictions were highly relevant and had a major impact on important matters, and the application was dismissed.

2014

January

FATMA AHMED ET. AL IMM-914-13 2013 FC 1083 OCTOBER 25, 2013

The Applicant was denied after applying for Temporary Resident Visas (TRV) for herself and her five children to join her husband, a PhD student at the Ecole Polytechnique de Montreal who had received his TRV as a student in 2011. The applications were denied as the Officer was not convinced that the Applicants would leave Canada at the end of their stay due to their rapidly decreasing bank balance and failure to demonstrate that they are well established in and have sufficient ties to Egypt, their home country. The judge ruled that the Officer’s decision was reasonable and the application was dismissed.

MANAV JALOTA IMM-3349-13 2013 FC 1176 NOVEMBER 19, 2013

The Applicant was denied while applying for a restoration of status after losing his study permits. The Applicant followed the Student Document Checklist, which does not require submitting any financial information, in his application to restore status. He noted on the application that he had funds for the semester and stated that he was willing to supply evidence of his financial status. The Applicant was denied and cited reason was a failure to submit proof of funds, previous transcripts, a college letter of acceptance, and an explanation of the period he was absent from study, although these documents were never requested. The judge found this to be a breach in procedural fairness, and found that the misleading checklist document is a distinct instance of a breach in procedural fairness. The applicant’s status was lost over concern he was not a genuine student, not for financial reasons, so it was reasonable that he addressed academic issues and not financial issues in this restoration of status application. The judge found that if the Respondent took issue with the documents provided, it was obligated to state those issues. The application was allowed.

FAHMEEDA NOREEN IMM-2035-13 2013 FC 1169 NOVEMBER 18, 2013

The Applicant was denied a visa despite the fact that she had obtained a nomination under the Saskatchewan Provincial Nomination Program due to concern that she would not become economically established in Canada. The Applicant planned to work as a teacher in Canada but did not have the English language score required to become a teacher, despite her English level being above the program minimum. The Applicant responded to this concern by providing updated and improved IELTS scores and a six point plan explaining how she would become economically established. Included in the plan was the assertion that she would work odd jobs, but she did not have a job offer of any kind and the Officer was not convinced that the Applicant could become economically established under this plan. Additionally, while the challenges of improving her English and becoming a teacher were addressed in the Applicant’s plan, she failed to provide a timeframe for the accomplishment of these goals. The Application was dismissed.

RASHID SHAFIQ IMM-10241-12 2013 FC 1180 NOVEMBER 21, 2013

The Applicant was denied as a skilled worker on the basis that he did not meet the educational requirements for the occupation he applied to, Computer Information Systems Manager (NOC 0213). The Applicant was denied because he failed to provide evidence describing the courses he took to earn his degree. He did provide a letter from the University of Punjab stating that he met all requirements for the Bachelor of Arts, which the judge ruled can be interpreted as the equivalent of a statement confirming that he completed the full program of study. The application was allowed and the Applicant will be reconsidered.

MARYAM MORADI IMM-1379-13 2013 FC 1186 NOVEMBER 26, 2013

The Applicant was denied under the Federal Skilled Worker Program on the grounds that job titles are not evidence of having performed specific duties, as the Applicant did not provide employment letters that indicated she had performed specific duties. The Applicant had performed some duties that fell under the Accountant Occupation (NOC 1111), and had performed some duties that fell under the Bookkeeper or Accounting Clerk Occupation (NOC 1231). If an applicant has performed some of the duties under the Accountant occupation, this does not necessarily mean that the “pith or substance” of the work performed is in line with the Accountant occupation. The overlap in the positions was not sufficient for the Applicant to be defined as having experience in that position, so the Officer’s decision is not unreasonable. The application was dismissed.

February

KHUBAIB AHMAD AWAN IMM-9602-12 2014 FC 52 JANUARY 20, 2014

The Applicant studied for his Bachelor of Arts (B.A.) at Government College from June 1981 to April 1983, but he did not sit his final exams. While in military service in 1991, he took the exams as an external candidate and was granted a B.A. from the University of Punjab. The Applicant was only granted 20 points for his education and the reason outlined in his refusal letter stated that he did not complete his B.A. from Government College as indicated. This did not specify the real reason for the refusal, which was the lack of evidence that the Applicant had studied at Government college from 1981 to 1983 at all. Although the Officer did not express the legitimate reason for the refusal in the refusal letter, the Officer’s decision to deny the points was reasonable and the application was dismissed.

HAIBIN WU IMM-3208-12 2014 FC 53 JANUARY 20, 2014

The Applicant’s sponsorship application was rejected despite the fact that his second wife was pregnant with their second child. The Applicant had also applied to sponsor his first wife, and during his interview for his first wife’s sponsorship, he told the immigration officer that their marriage was genuine. At the time of that statement, he had already told his first wife that he wanted a divorce and was living with his second wife. There were also other unexplained inconsistencies in the evidence that led to the denial of the application. The judge ruled that both the inconsistencies and the Applicant’s willingness to lie in order to stay in Canada were reasonable grounds for the rejection.

MARI ANNA SLOAN [RESPONDENT] IMM-4396-13 2014 FC 31 JANUARY 13, 2014

The Applicant, a 54 year old Canadian citizen, was suspected of a marriage of convenience when she married a 28 year old Moroccan citizen in 2010 in Morocco after meeting online the previous year. The Officer suspected a marriage of convenience due to the lack of celebration of the marriage, which is an important part of Moroccan culture and there was little evidence of contact between them. The Applicant’s spouse seemed to be focused on seeking a future in Canada as opposed to spending his life with the Applicant. The Officer concluded that the couple met the onus on demonstrating that the relationship was genuine. The judge found that the Officer’s decision was reasonable and rationally supported, and the minister’s application was dismissed.

March

AJJAB KHAN AFRIDI IMM-5212-13 2014 FC 193 FEBRUARY 27, 2014

The Applicant, a three year old boy from Pakistan, was seeking a TRP in order to join his aunt, who was his legal guardian, in Canada so she could receive medical treatment. The Applicant’s ties with his birth mother had been cut and his birth certificate and passport names his legal guardians as his parents. His guardians, who are both Canadian citizens, were previously denied after attempting to bring the Applicant to Canada under the Family Class because the Pakistani concept of legal guardianship is not the same as formal adoption and the concept of adoption does not exist in Pakistan. For this reason, the province of Saskatchewan would not issue a “no objection” letter. The Officer rejected the Applicant because it was not clear that the Applicant would leave Canada after his TRP expired, and there was concern that it was not in the best interests of the child as he would be separated from his birth mother and three biological siblings, who were living with the Applicant and his legal guardian. The Officer was not convinced of the existence of “compelling reasons” or exceptional circumstances” to grant the Applicant a TRP. The Officer’s decision was reasonable and the application was dismissed.

GURJIT SINGH VIRK IMM-4008-13 2014 FC 150 FEBRUARY 14, 2014

The Applicant applied for a work permit, and was refused because he failed to demonstrate that he met the job requirements for his proposed employment and because the Officer was not convinced that he would leave Canada at the end of the two year authorization. With the refusal, the Officer noted that the Applicant failed to disclose a previous refusal, did not disclose relatives in Canada (which was not required of him), did not provide evidence of relevant education, did not provide evidence of his ability to communicate in English, and failed to provide evidence of his income or savings (although he did provide evidence of his income and landholdings). Although he did provide evidence of some of these claims, he did not provide anything to verify his English language skills, which was a requirement. The Officer’s refusal was reasonable because the Applicant was informed more evidence of his English language ability was required and did not provide anything. The application was dismissed.

PEDRAM SAMADI DINANI IMM-3600-13 2014 FC 141 FEBRUARY 11, 2014

The Applicant applied for a skilled worker visa under NOC 4012, Post-Secondary Teaching and Research Assistants, and was denied for failing to list the duties and responsibilities of his past positions as an Engineering Research and Teaching Assistant that match the descriptions in the lead statement of NOC 4012. He provided reference letters that clearly outlined his duties and responsibilities which matched NOC 4012, but the Officer denied his application because the reference letters did not specifically state that his tasks as a Graduate Research Assistant were assisting other members of the Engineering Faculty, which should have been obvious based on the reference letters. The judge concluded that the Officer was being unreasonable in denying the Applicant based on this reason and the application was allowed.

PRABHJOT KAUR SIDHU IMM-11988-12 2014 FC 176 FEBRUARY 26, 2014

The Applicant was denied for reasons of misrepresentation, but the Officer’s refusal letter and the GCMS notes do not contain details of the nature or extent of this claimed misrepresentation. The Officer stated that “the Applicant misrepresented her employment history by providing false information about her employment as a computer instructor with Data Soft Tech,” but without providing any further information about the misrepresentation this constitutes a breach in procedural fairness. The application was allowed.

SURJIT SINGH AUJLA IMM-4926-13 2014 FC 134 FEBRUARY 6, 2014

The Applicant was attempting to sponsor his adopted daughter to join him in Canada and was denied on the grounds that there was no genuine parent-child relationship. The Applicant challenged this characterization of their relationship. The Officer had a number of reasons for this characterization, including the Applicant’s wife visiting the child only twice since 2004, the daughter’s evidence of the relationship being emotionally detached, the Applicant’s lack of knowledge about his daughter’s interests, and the Applicant being described as “devoid of any expression of the love and affection that would reasonably be expected of a genuine parent-child relationship.” The judge ruled that it was not unreasonable for a denial to be reached as these conclusions are important considerations in assessing an application. The application was dismissed.

April

VARINDER SINGH BHAMRA IMM-11287-12 014 FC 239 MARCH 11, 2014

The Applicant was accepted as a member of the Saskatchewan PNP and submitted documentation to verify his employment. The Officer made a phone call to verify the employment, and the responding party denied that he knew the Applicant or that the Applicant had ever worked for him. The Officer made the decision that a misrepresentation had occurred, and the Officer’s conclusion was not unreasonable. The Applicant had the opportunity to resolve the assumption of misrepresentation by submitting other documentation to confirm his position at the company, so there was no procedural unfairness in the case. The Applicant also claimed that the CIC was required to determine why he was nominated for the Saskatchewan PNP through communication with Saskatchewan, but the CIC met their contractual obligations with Saskatchewan in this case, and the province decided not to intervene. The application was dismissed.

ELENDU GEOFFREY IMM-3567-13 2014 FC 228 MARCH 7, 2014

The Applicant applied for his wife to join him in Canada under the Spouse of Common-Law Partner in Canada Class and was rejected. On October 26, 2011, the Applicant and his wife were interviewed for their eligibility for the program, and the interviewer, Officer Médée congratulated the couple and confirmed that she intended to approve the application after the interview. The Officer did not submit a copy of the FOSS notes from the file to the Court and did not send the Applicant a written confirmation of his approval by mail, resulting in a gap in the Applicant’s file between October 26, 2011 and April 26, 2013. The evidence of a decision made after initial interview would have been in the FOSS records, so the court finds that a positive decision was made on that grounds on the grounds that the Respondents failed to provide evidence to contradict that the decision was made on that date. Officer Médée did not provide an affidavit or explain the failure to send a written confirmation or the delay between the interview and CIC’s refusal of the application. The application was allowed.

QIAN CHEN IMM-12395-12 2014 FC 240 MARCH 11, 2014

The Applicant applied for inclusion as a dependent child and was rejected. The Applicant was not a child of the marriage and was over the age of 22, so continuous enrollment in a post-secondary institution full-time since before she turned 22 was required for her inclusion as a dependent child. The Applicant stated that she had been enrolled in a post-secondary institution full time since 2009, but the certificate confirming her enrollment in Shenyang Open University indicated that she only started her studies in March 2010 in a two year part-time program. The Officer concluded that the Applicant misrepresented her educational history. The Officer was not obligated to give the applicant an opportunity to correct the inconsistency after she failed to support her claim with the necessary evidence, and the application was dismissed.

DALJEET KAUR IMM-2452-13 2014 FC 265 MARCH 19, 2014

The Applicant applied as a skilled worker with a valid job offer for a position as a bookkeeper, as outlined in NOC 1231. Her applicant listed one position, with the employer Cater Mart, that had relevant experience for NOC 1231. In the letter confirming her employment with Cater Mart, it stated that she was employed as a Senior Accountant but did not mention any of the main duties or responsibilities of the position. The Officer’s decision to reject on the basis that the Applicant failed to provide evidence that she had performed the duties of NOC 1231 was reasonable and the Applicant admitted that she failed to provide evidence to indicate she had performed the duties required on NOC 1231. The application was dismissed.

GENARO GONZALEZ IMM-2830-13 2014 FC 201 FEBRUARY 28, 2014

The Applicant and his future wife met in 2006 on a website, and after two years of no contact, the Applicant visited his future wife in Mexico in 2008. At some point after that visit, he asked her to marry him and they were married in Mexico. Since their wedding, the couple has been in regular contact and the Applicant has visited his wife in Mexico as often as possible. The couple displayed slight inconsistencies in their stories, such as the specific dates of when they fell in the love and when he proposed. The Tribunal was also concerned that telephone calls between the couple were of short duration, to which the explained they were using Skype, the income of both individuals and the cost of long distance calls does not seem to have been considered. The Tribunal was not satisfied that the marriage was not a marriage of convenience and it is clear that she presumed that there was bad faith and an abuse of the system. The Application was allowed.

May

ZI YANG IMM-3769-13 2014 FC 383 APRIL 24, 2014

The Applicant, Ms. Yang, was residing in Canada legally on a study permit and a work permit. When her work permit was set to expire, she applied in writing for an extension. Due to long processing times, she was advised that she should leave Canada and apply for a work permit extension at a port of entry. At the port of entry, the immigration officers found that she was trying to enter Canada illegally and she was issued a removal order. The judge ruled that the Officers mischaracterized the situation at the border, as Ms. Yang was trying to apply for a work permit at the border, not enter Canada to work without a permit. The application was allowed.

SABA KHOSH KHOOEE IMM-2346-12 2014 FC 279 MARCH 24, 2014

The Applicant applied for immigration to Canada identifying NOC 0711 (Construction Manager) and NOC 2151 (Architect) and was found eligible for NOC 2151. The Applicant received a letter stating that a clerical error has resulted in her being sent an incorrect refusal letter, and sent her an amended refusal letter. The Applicant argued that the decision confused her application for consideration under the two NOC codes, as on at least two separate occasions the wrong NOC code was referenced. The judge ruled that the decision was unintelligible and lacked transparency, and that the application was not handled with due care and attention. The Application was allowed.

ABBAS FARIBORZ MAZAREI IMM-977-13 2014 FC 322 April 2, 2014

The Applicants are a group of 63 individuals who applied for the Quebec Immigrant Investor Program and received their Certificat de selection du Quebec (CSQ). The Applicants then submitted their applications for permanent residence to the Canadian Embassy in Damascus, Syria, which the Applicants are arguing were subject to unreasonable processing delays. The processing delays were due to the fact that the Canadian Embassy in Damascus was closed due to civil strife in Syria, and all of the Damascus applications were moved to Ankara. The Tehran embassy was also closed, and moved their pending applications to Ankara as well. The result was a large backlog at the overburdened Ankara office, causing processing delays. The Applicants’ permanent residence applications were also preceded by over 500 other applications, and speeding up the Applicants’ processing time would constitute queue jumping. The Application was dismissed.

JOHAN EFRAIN MEJIA MEJIA IMM-5908-13 2014 FC 357 April 11, 2014

The Applicant applied for permanent residence visa processing at the Canadian Embassy in Bogota, but was refused after only providing payroll records for his employees for a period of 8 months. The Overseas Processing manual is clear that payroll records are essential and a period of 1 year must be covered, and his request to be reconsidered was refused. The application was dismissed.

June

CHARAN PREET SINGH SIDHU IMM-6868-13 2014 FC 419 MAY 2, 2014

The Applicant applied for a work permit under the Provincial Nominee Program, and claimed work experience as the manager at a gas station. A consulate employee conducted a site visit to verify the Applicant’s employment, and found that there were inconsistencies in the Applicant’s claim that cast doubt on the fact that he was a manager of the gas station. The judge found that it was within the Officer’s discretion to prefer the information provided by the Applicant’s co-workers during the site visit over the information on his application. The application was dismissed.

RAJESH CHAWLA ET. AL. IMM-1499-13 2014 FC 434 MAY 7, 2014

The application applied for permanent residence in Canada as a skilled worker and claimed work experience as a cook at a restaurant in Mumbai. The Officer phoned his place of employment to verify his work experience as he had no training as a cook and there were inconsistencies in his income tax statement. The Officer’s call was answered by Mr. Naresh, an employee who claimed to have worked at the restaurant for 9 years, and who told the Officer that no one by the Applicant’s name had ever worked at the restaurant. The Applicant was sent a fairness letter noting that their investigation indicated that he had never worked at the restaurant, but the letter did not provide details about the phone call. Had the Applicant been provided with the information about the phone call, he would have been able to dispute the facts and undermine the credibility of Mr. Naresh. The application was granted.

ALUTHWALA KARUNARATNA ET. AL. IMM-6699-13 2014 FC 421 MAY 5, 2014

The Applicants applied for permanent residence as a member of the family class, but did not indicate that they had been refused a Temporary Resident Visa (TRV) in 2008. The Applicants did refer to the refusal when they applied for a TRV again in 2009, which indicated that they were not trying to hide the information. The Officer also had access to the information about the past refusals. While leaving out the information about the TRV refusals may have been a misrepresentation, it does not constitute a material misrepresentation, which is a representation that would have induced an error in the assessment of the application. The application was granted.

GURPREET SINGH BAJWA IMM-1165-13 2014 FC 445 MAY 9, 2014

The Applicant and his family were issued permanent resident visas days after the Applicant was arrested and detained on charges of kidnapping and rape. The Applicant’s father never told Canadian immigration authorities about the charges his son was facing, and he and wife landed in Canada to prevent their visas from expiring while awaiting their son’s trial. The Applicant should have informed the Canadian High Commission of the criminal charges and was able to do so but elected not to. The Officer’s conclusion that the family had consciously chosen not to tell Canadian immigration authorities about the charges was reasonable. The application was dismissed.

July/August

LIWEN JIN IMM-6342-13 2014 FC 612 JUNE 25, 2014

The Applicant’s application to the Canadian Experience Class (CEC) was denied on the grounds that there was no evidence that she planned to return to Canada, such as a plane ticket to Canada or an offer of employment in Canada. These concerns were not shared with the Applicant in the fairness letter, which only asked for additional information proving she planned to settle outside of Quebec. The judge found that it was unreasonable for the Officer to expect that the Applicant would purchase an expensive plane ticket in advance of her application’s acceptance. The judge also found that the issue with the fairness letter constituted luring the Applicant into thinking the issue was one thing, only to be told that there was another issue of greater concern. The application was granted.

GURPREET SINGH KAHLON IMM-1100-13 2014 FC 578 JUNE 18, 2014

The Applicant’s application for permanent residence was rejected due to a failure to provide proof of funds. The bank records submitted prior to the refusal showed that the Applicant had $145. After the rejection, the Applicant applied for the GCMS notes on his file, learned the reason for his rejection, and submitted updated bank information showing that his bank balance was now approximately $16,000. The judge found there was no breach of procedural fairness by the Officer, who had no obligation to give the Applicant a chance to explain the discrepancy in funds. The application was dismissed.

KAILASH NATH MAHAPATRA IMM-5436-13 2014 FC 516 MAY 28, 2014

The applicant was convicted of an offense abroad in 1997, when the victim of his crime was 13 years old. The court considered the equivalency of consent, as consent was not an element of the crime in the jurisdiction where he was convicted but under Canadian law it is possible for a victim to consent to this particular act. Under Canadian law, consent is not possible when the victim is 13 years of age, so the equivalency of consent was not an issue in this case. The judge found that the Applicant being found guilty beyond a reasonable doubt by a jury was sufficient evidence for his refusal. The application was dismissed.

SANDRA ELIZABETH MOLINA IMM-496-13 2014 FC 530 JUNE 2, 2014

The Officer consulted online sources to find information about the Argentinean school system to aid her in decision about the Applicant’s Humanitarian and Compassionate Grounds application. The Applicant did not rely on her children’s learning disabilities or the difficulties they may face in the Argentinean school system in her H & C submission, so the Officer’s findings, from websites that the judge considered unorthodox and not standard sources, were superfluous. The application was dismissed.

September

CIJIA GAO IMM-3457-13 2014 FC 821 AUG 25, 2014

The Applicant worked in Canada and applied for permanent residence under the Canadian Experience Class (NOC 6211), as a Retail Sales Supervisor at Safeway Ltd., but the officer was not satisfied that the applicant had performed any of the essential duties as outlined in the job description. NOC 6211 does not list any essential duties. This decision cannot stand because NOC 6211 requires that “some or all” of the duties are met. It is unreasonable for the officer to reach this conclusion based on the evidence available. The application was allowed.

NHUT VO IMM-3683-13 2014 FC 816 AUG 21, 2014

This is the Applicant’s third attempt at sponsoring a woman (his fiancée) for permanent residency in Canada. Previously, the Applicant had been in a Common Law marriage. When this ended, the Applicant applied to sponsor a fiancée in 1995 but the relationship ended and the application was withdrawn. The Applicant married his second wife in 2004, sponsored her from Vietnam in 2005 and the couple divorced soon thereafter. The Applicant was married a third time to Ms. Le in 2007, and the sponsorship application for Ms. Le is the one in question here. The sponsorship was refused because of the Applicant’s marriage history, as well as a lack of evidence of future plans together. The Applicant appealed, asking the Court to re-weigh the evidence and re-conclude. It was clear that the Board carefully assessed all evidence and found the refusal reasonable. The application was dismissed.

SEYEDJASEM HOSSEINI IMM-6326-14 AUG 29, 2014

The Applicant requested to defer his removal from Canada because of significant risk to his life as a returnee to Iran as a failed refugee claimant. It is noted that an elevated standard of review applies with respect to a stay motion arising from a refusal to defer an applicant’s removal, as if it is granted, it will grant the relief sought in the underlying judicial review application. The Applicant was convicted by the Iranian Revolutionary Court for offenses against the security of the state and was sentenced 5 years imprisonment. The Enforcement Officer rejected the Applicant’s argument that he would be subject to varying degrees of ill treatment, which is proven by documentary evidence. Although the RPD found the Applicant’s story not credible, this does not dismiss further evidence submitted. The application for stay was granted.

October

WILMER OMAR PORTILLO ET. AL. IMM-5004-13 2014 FC 866 SEPT 12, 2014

Mr. Portillo, Ms. Requena, Ms. Pascascio and Ms. Harris are all citizens of Belize, and all were hired to work as Food Service Counter Attendants (NOC 6641) at select McDonald’s locations across Canada. The employers (who own and operate McDonald’s franchises) used Actyl Group Inc. to find and screen applicants, and then interviewed the Applicants via video or teleconference. The Officer refused all 4 applications, and cited different issues with each Applicant’s application: Mr. Portillo had “no good proof of experience for the required job,” Ms. Pascascio had “no proof of experience for the required job.” Ms. Requena did not seem “well established in Belize” and the Officer said he was “not satisfied that PA meets the requirements.” Ms. Harris did not seem “well established in Belize” and the Officer said he was “not satisfied that PA meets the requirements.” In question is the entitlement of the Officer to evaluate and consider whether the applicants had such experience as part of the decisions the officer was required to make. It does not make sense for the Officer to say he does not think the Applicants meet the requirements when the employer is sure that they do. Therefore, the Officer’s decisions are unreasonable. The applications were allowed. The Food Service Sector of the Temporary Foreign Worker program was suspended, but no further relief pertaining to this was requested by the Applicants. Applications were re-submitted for consideration by a different Officer.

RAJENDRA GOVIND DURVE IMM-1332-13 2014 FC 874 SEPT 15, 2014

The board considered several factors to determine whether Mr. Durve’s one-man business met the requirements of an on-going operation in Canada. The Applicant states that work where one is self-employed and follows his business is difficult to exist “fully” “in Canada,” as the interpretations of the stipulations suggest. It is unclear what the Applicant does for his business in Canada while he is abroad, and his travel patterns do not suggest that Canada is his home-base. The Applicant holds no place of permanent residency in Canada, but rather lives in India with his mother. The legislation is intended to permit permanent residents with businesses that have a real and hopefully beneficial connection to Canada to retain their permanent resident status while they pursue their business outside of Canada. It was concluded that the Applicant is not self-employed by this business full-time. It is noted that there is a need for determining how to apply the residency requirements for permanent residents with small/one-person Canadian businesses. It is concluded that the onus is on the permanent resident to provide clear and cogent evidence that his business is Canadian and that his work done outside of Canada is for the benefit of this business. The application is dismissed. This type of inquiry is a question of fact to be determined by the nature and the degree of the applicant’s business activities in each individual case.

JAMIE LEANNE DUNNE IMM-833-14 2014 FC 835 SEPT 2, 2014

The Applicant is a 23-year-old citizen of Ireland who came to Canada when she was 7 years old as a dependent of her mother. She has not been to Ireland since her arrival to Canada. She is a permanent resident of Canada, but she is not a citizen. All of her immediate family lives in Canada (except for her biological father, who lives in the United States of America), including her 3-year-old daughter. Her immigration status became jeopardized when she was convicted of robbery on February 2nd, 2012 as well as assault causing bodily harm on October 2nd, 2012. On October 11th, 2012, the Applicant was issued a deportation order on grounds of criminal inadmissibility under subsection 36(1) of the IRPA for her conviction of robbery. Applicant appealed to the Tribunal, seeking relief under paragraph 67(1)(c). It is noted that it is not the Court’s role to re-evaluate evidence. The Tribunal considered the seriousness of her offences, the possibility of Applicant rehabilitation, her remorsefulness, her familial support, the length of time the Applicant has lived in Canada, her family in Canada and the dislocation deportation would be to this family (specifically to her daughter), the best interest of her child and the degree of hardship that deportation would cause. It was concluded that the Applicant’s convictions fall on the serious side due to their violent nature that was added to by aggravating behavior (posted to social media). It was concluded that it would be best for the daughter to remain with the Applicant, but the biological father does not oppose to both the Applicant and the daughter returning to Ireland together. It was concluded that the decision is harsh, but the Tribunal made considerable effort to thoroughly examine all evidence. The application was dismissed.

2015

April

EURO RAILINGS LTD. V. CANADA 2015 FC 507 April 21, 2015

The Program Officer refused a positive Labor Market Opinion (LMO) citing an absence of a labor shortage for the occupation and that based on labor market information there was no demonstrable shortage of workers for the occupation in the region. The next day the Applicant presented submissions that there were in fact labor shortages for the occupation and that the occupation was listed as being part of a need in Canada according to the Federal Skills Trade Program. According to procedural rights, the Applicant has a right to be given reasons that are logical, ones that are based on the information presented to the reviewing officer. Here, the Applicant did not receive an intelligible explanation for why the LMO and the provided evidence were rejected. The judicial review was granted and a partial award of $2500 was ordered. The application was sent back to be decided by a different officer.

2017

May

SNEZANA TOSIC-KRAVIC IMM-4416-16 2017 FC 452 MAY 5, 2017

In her sponsorship application, Ms. Tosic-Kravic failed to disclose non-special benefit income she was receiving in the form of EI payments. The officer denied her application without an opportunity to address the EI payments. However, the officer requested documents from the CRA that made it evident that she was receiving the payments. Since Ms. Tosic-Kravic had indicated this income on previous occasions, the officer did not have to give her another opportunity to address the errors.

HAPPYBEN SHAILESHBHAI PATEL IMM-2917-16 2017 FC 472 MAY 9, 2017

Ms. Patel was denied a Canadian work permit due to her failure to disclose two previous visa refusals from the United States. Those applications were denied in 2015 because her connections to her home country of India were not deemed to be strong enough to guarantee that she would leave the US once a visa expired. Though she claimed that a language barrier led to the mistake, Ms. Patel was assisted by someone speaking English. Because of this error and the circumstances surrounding it the officer processing the application could not determine with certainty that Ms. Patel would leave Canada at the end of the visa’s validity.

NEHARIKA VERMA IMM-4058-16 2017 FC 488 MAY 10, 2017

Ms. Verma never had implied status due to the fact that her work permit application was returned to her and therefore never technically existed. Because of her lack of implied status, Ms. Verma did not meet the one year, full-time work experience requirement for Canadian Experience Class eligibility. The officer was justified in denying the application.

ZHIWEI PENG ET. AL. IMM-4811-16 2017 FC 537 MAY 31, 2017

Mr. Peng holds a multiple-entry visa valid for seven years. He believed that this visa allowed him to stay in Canada for indefinite periods of time within the seven years of the visa’s validity. However, unless an officer adjusts that period, visitors may only stay for a period of six months at a time on this type of visa. Mr. Peng and family travelled to Canada with eight suitcases and after having sold their house and car in their home country. Mr. Peng had also left his job back at home. Mr. Peng’s wife was in possession of a study permit valid through June 30th, 2017 but had not yet applied for post-graduation work permit and was not authorized to stay in Canada past the expiry of the permit. It appeared to the officer that they would not leave Canada after their authorized period ended. The Minister’s Delegate issued an exclusion order and was justified in this action.

June

TAVORA SEA PRODUCTS CO. LTD. IMM-2227-16 2017 FC 546 JUNE 2, 2017

Tavora Sea Products CO. LTD. was applying for a LMIA. The officer in the case sought an opinion from a former Loblaws fish department manager. Without disclosing this opinion to the company and allowing them to respond to it, the officer determined that the company had not made reasonable efforts to train/hire Canadians. This determination was deemed to be procedurally unfair. A waiver for the breach of procedural unfairness was denied despite what the officer had determined about the company’s efforts.

IRINA VASILYEVA IMM-4139-16 2017 FC 551 JUNE 6, 2017

Ms. Vasilyeva was applying for permanent residency. The officer requested a copy of her husband’s military book from his service in the Russian military and a certified translation. However Ms. Vasilyeva either did not provide all information requested in the time allotted or some of it was lost. When the officer received the book, he had concerns about its authenticity. The book, having been issued 24 years prior to the officer seeing it, did not have any visible damage or normal wear and tear. He also expressed concern regarding the corners of the book and how they appeared to have not been cut in a manner standard for a government. The officer denied Ms. Vasilyeva’s application without notifying her of his concerns regarding the military book. Ms. Vasilyeva then contended that the officer breached procedural fairness by not alerting her to his concerns. The officer called this a red herring, citing the failure to produce all documents requested as the main reason for denying the application. It was determined, however, that procedural fairness was indeed breached by the officer by not notifying Ms. Vasilyeva of his concerns and allowing her to respond to them.

KELROY SONNEL JOHNSON IMM-2432-16 2017 FC 550 JUNE 6, 2017

On May 24th, 2016, Mr. Johnson was told by an officer that he needed to come into the immigration office for an interview regarding his application for the Spouse or Common-Law Partner in Canada Class. He was told the interview would address his identity. He was given less than three hours’ notice of the interview and was told that his wife did not have to come with him. She did, however, join him and the couple was interviewed both separately and together. The couple gave inconsistent answers to a number of questions and the application was denied. Mr. Johnson was not notified that the purpose of the interview had changed or that the interview would lead to an immediate determination on the status of his application. The couple was not given adequate time to prepare for this type of interview. It was determined that officer had breached procedural fairness and it is uncertain whether this breach was simply technical.

BABAK AGHEVLI IMM-4621-16 2017 FC 568 JUNE 9, 2017

Mr. Aghevli was involved in selling drugs in a trafficking organization in Vancouver and his inadmissibility finding was based on this involvement. He argued that the Board did not have adequate evidence proving that he was aware of the scope of the trafficking network. Without this evidence, he argued, the Board could not determine that he knowingly took part in the activities of a criminal network, as defined in section 37 (1)(a) as the concerted activity of three or more persons. The Board pointed to the sheer amount of cocaine that Mr. Aghevli’s superior was receiving and the fact he only sold on weekends to show that common sense would have told him that there were more people involved in the network. They also pointed out the fact that Mr. Aghevli shared a cell phone with another street level supplier and that he disclosed this information to an undercover cop.

JOVO BARAC IMM-4957-16 2017 FC 566 JUNE 9, 2017

Mr. Barac had served as a Captain, First Class in the Bosnian Serb Army (BSA), which was found to have committed serious human rights abuses by the Minister of Public Safety. The officer was given an organizational chart of the ranks of the BSA. The officer found that Captain, First Class was within the top half of ranks in the BSA, making a person of this rank inadmissible due to the actions carried out by the BSA. The officer was justified in finding Mr. Barac inadmissible despite not analyzing his precise roles and responsibilities in his military position.

NOUH HUSSEIN ABDALLA HAMAD ET. AL. IMM-4115-16 2017 FC 600 JUNE 16, 2017

Mr. Hamad was attempting to come to Canada to study at Centennial College. In his “affidavit on purpose of visit” he stated that he wished to develop his “analytical, organizational and management skills”. His explanations for ties to his home country were vague and explained that he hoped to get a job in Nigeria. Mr. Hamad is 37 years old and has a well-established career as a head business analyst and personal assistant to a managing director. It was determined that he most likely already possesses the skills that he was seeing to acquire in Canada. For this reason and the vagueness in his affidavits, the visa officer was justified in determining that Mr. Hamad did not provide enough proof that he would leave Canada at the expiration of his visa.

THOMAS FRANCIS BYRNE IMM-5044-16 2017 FC 640 JUNE 30, 2017

Mr. Byrne previously held a work permit for his position as Owner/Operator of Dairy Queen Collingwood, a business for which he held shares in. Upon renewal of his work permit, his application was denied when the reviewing officer drew upon the permit requirements that exclude self-employment when calculating the period of work in Canada. According to the officer, Mr. Byrne’s title of Owner/Operator, and his shares in the company, sufficiently indicated that he was self-employed. While Mr. Byrne argued that the officer should look beyond his title, the visa officer was justified as the title of Owner/Operator, as well as the IRCC guidelines, confirm that Mr. Byrne should be considered self-employed.

July

ABDULRAZZAG SALEH S ALOMARI IMM-5278-16 2017 FC 727 JULY 26, 2017

Mr. Alomari, a Saudi Arabian citizen, had previously lived in Canada on a student visa that was valid until November 30, 2015. After his visa expired, Mr. Alomari had not yet met the educational requirements to reapply for another study permit. Instead, he overstayed in Canada until July 10, 2016 when he returned to Saudi Arabia. Mr. Alomari applied for a TRV on December 10, 2016 after his wife and sisters received a scholarship from the Saudi Arabian government to continue their academic studies in Canada, if accompanied by an adult male. Mr. Almori’s application was denied, following the officer’s belief that due to Mr. Almori’s prior disregard of his student visa requirements, he would be unlikely to abide by the new TRV requirements. The officer did not take into consideration Mr. Alomari’s statements that he now understands the legal methods of overcoming visa issues, and as such would not breach any of the TRV requirements. For this reason, the officer’s decision to deny Mr. Alomari’s TRV application was not justified. However, there is no practical purpose in returning to this matter for reconsideration as the TRV was for required for January 2017, and Mr. Alomari has provided no additional statements regarding the status of his wife and sisters.

CRAIG ANTONIO WILLIAMS IMM-4342-16 2017 FC 707 JULY 24, 2017

Mr. Williams was denied spousal sponsorship when the reviewing officer noticed that he was not aware of his wife’s education and career goals. The officer found that this indicated that the marriage was not legitimate. Mr. Williams believed his wife was attending school to be a veterinarian, a field she used to work in prior to coming to Canada. However, Mr. Williams’ wife had since changed her career plans and was studying to become a certified chef. She did not believe she had told her husband these plans yet, which accounted for the misunderstanding. Despite this, Mr. Williams demonstrated a thorough understanding of his wife’s education and career history. This was a single inconsistency in an application that had already been approved by a different officer, and the officer who denied the case failed to indicate why this one factor outweighed all the other significant aspects of their application. The officer was not justified in his decision, and the application should be revisited by another officer.

 

October

ANNA ONA OYITA / IMM-1090-17 2017 FC 770 / AUGUST 16, 2017
Mrs. Oyita has lived as a temporary resident in Israel since 1995. In February 2019 she applied for her TRV before her visitor visa was about to expire in April 2017. The officer cited that the reasons for which Mrs. Oyita had been on an extended visitor status in Israel for over 20 years were unclear. He was furthermore concerned about the doctor’s letter stating that Mrs. Oyita’s reason for the visit was her cousin’s ill-health, in contrast to her cousin’s letter that mentioned no health issues. The officer concluded that the applicant does not wish to return to Nigeria, and is alone in Israel. While Mrs. Oyita claims that there is no evidence showing that she illegally visited or overstayed in Israel, there was nonetheless a lack of clarity. Furthermore, Mrs. Oyita takes issue with the officer’s reference to a refused spousal sponsorship application for permanent residence in 2009, as she believes it should not prevent her from moving forward. It was decided that nothing was unreasonable in the officer’s consideration of her previous application, and the application was dismissed.

GAGANDEEP KAUR / IMM-780-17 2017 FC 782 / AUGUST 24, 2017
A visa officer decided that Mrs. Kaur had insufficient English communication skills. Mrs. Kaur argues that the visa officer did not give her an opportunity to address the legitimacy of the IELTS test scores and that she was indeed proficient in English. Furthermore, she argued that she had trouble hearing the visa officer through the glass barrier of the interview booth, and that he spoke quickly and disinterestedly. However, the respondent replied that this concern was not raised during the interview, nor was the officer’s behavior addressed on the record. The officer expressed his concerns about Mrs. Kaur’s English and ability to effectively perform her professional responsibilities, yet did not give her the opportunity to address his credibility concerns. After both parties referred to the Canadian Government guidelines, it was decided that the officer’s analysis of the applicant’s English was unconcise, and that despite his statement that Mrs. Kaur had almost no grasp of the English language, his GCMS notes show the opposite. The officer’s decision was deemed unreasonable, and the application was allowed.

MAHVASH RAHIMI / IMM-1015-16 2017 FC 758 / AUGUST 4, 2017
Mrs. Rahimi’s spouse is Mr. Vajar, whose aunt married Mr. Amirabadi (who was living in Canada as a permanent resident). Since Mr. Vajar’s aunt died, the question as to whether Mr. Amirabadi is a qualifying relative arose. The officer found that there was no qualifying relative in this situation, since Mr. Amirabadi is no longer legally related by marriage to his now deceased wife. There is thus no longer a legal connection (by marriage) between Mr. Vajar and Mr. Amirabadi. Under the Canadian law, a marriage is no longer valid when a spouse dies. This application was therefore dismissed.

XUE LI [RESPONDENT] / IMM-1214-17 2017 FC 805 / SEPTEMBER 6, 2017
On January 24th, 2005, Mrs. Li’s spouse, Mr. Gao, was arrested for negotiable instrument fraud. On April 7, 2008, the admissibility hearings were suspended, as the Gao family made claims for refugee protection in Canada. By May 12th, 2014, Ms. Li was deemed inadmissible to Canada by the ID for misrepresentation of the IRPA for failing to disclose on her application for permanent residence that Mr. Gao had been accused of embezzlement while employed with the Bank of China. Furthermore, she failed to even mention that her husband had worked for the Bank of China for 14 years, and admitted to knowing her husband was wanted by Chinese authorities in 2005. An exclusion order was thus issued against Ms. Li. Mr. Gao consequently returned to China, where he was convicted of instrument fraud and sentenced to 15 years in prison. Mrs. Li remained in Canada and appealed the ID’s decision to the IAD. Due to the large scale of Ms. Li’s misrepresentation and to the deliberate exclusion of her husband’s employment with the bank, the IAD was unable to find that the H&C relief was justified. The minister’s application was allowed.

MANMINDER SINGH MATTU / IMM-592-17 2017 FC 781 / AUGUST 24, 2017
Mr. Mattu failed to disclose his sham [fake] marriage, which he justified by stating that the marriage was never legitimately carried out and was subsequently annulled. Mr. Mattu was in Canada and, after two months of living with his wife, filed for divorce. His wife told CIC that Mr. Mattu had used her to gain status in Canada. The IAD found that Mr. Mattu’s failure to disclose the sham marriage on his spousal application warranted questioning from an immigration officer, who deemed his marriage as valid. Mr. Mattu argues that his sham marriage was never valid because the ceremony was not carried through according to Sikh law and, because he and his wife were members of the same village and thus “brother and sister,” the marriage was void. Mr. Mattu’s expert, Mr. Lall, admitted to not fully verifying the customs of the village and was furthermore not practicing law at the time.
The reasonable findings that this first sham marriage was invalid include a witness who testified that guests were paid to attend the sham wedding ceremony and that an unidentified man performed the palla ritual, meant to be performed by the father of the bride. Mr. Lall then stated that under the Indian Law, if the custom deems Mr. Mattu and his ex-wife “brother and sister” the marriage is indeed void. Moreover, the Divorce Agreement holds proof that the village did not recognize Mr. Mattu’s marriage. While the IAD’s credibility findings are reasonable, the witness’ failure to give reasons for the credibility finding in clear terms amounts to a reviewable error. The application was thus allowed.

November

LAMBER SINGH IMM-1670-17 2017 FC 894 OCTOBER 6, 2017
Mr. Singh is an Indian citizen who has been legally employed as a construction worker in Singapore on a work permit since 2009. In November of 2006, Mr. Singh was offered a position as a farm worker in Chilliwack, British Columbia for a two-year period. The Officer was not convinced that Mr. Singh would leave Canada after two years, based on his absence from his family in India while working in Singapore, his switch of professional positions, and his lack of work prospects in India. After the Officer stated his decision, Mr. Singh submitted a request for reconsideration. Documents submitted by Mr. Singh included a list of annual visits to his family in India between 2010-2016 (each visit ranging from 1-4 months), proof of employment as a farm field supervisor in India from 2003-2009, and a detailed explanation of his desire to re-enter the agricultural sector. However, the information provided by Mr. Singh did not bring the officer to alter his refusal, as he claimed to be unconvinced of Mr. Singh’s ties to India.
The Officer gave little consideration to the fact that Mr. Singh had visited his wife and daughters each year between 2010-2016 (except for 2011) for extensive time periods, that almost of all his family members reside in India (while none live in Canada), that he recently inherited land in India from his father, and that he has a home, two vehicles, and substantial savings in India. While these factors should have been addressed in the Officer’s assessment, the Officer failed to mention them.
While proof of family in an applicant’s country of origin is not enough information to verify that the applicant will return there at the end of his work permit, the Court found Mr. Singh’s ties in India to be unquestionably significant. Additionally, the Officer failed to disclose details provided by Mr. Singh regarding the land transfer from his father to himself and furthermore, had no evidence of Mr. Singh having any conflict with Singapore’s immigration laws. While the Officer also claimed Mr. Singh’s decision to switch from construction to farm laboring to be suspicious, Mr. Singh had a prominent employment history within the agricultural sector in India for over six years: his construction work in Singapore was a result of the limited jobs within the agricultural field in Singapore. By moving to Canada, Mr. Singh would be returning to his original field. The Officer’s decision proved to contain unreasonable evidence and was inappropriately justified. Mr. Singh’s application was therefore allowed.

ELIO LEBLANC IMM-728-17 2017 CF 811 SEPTEMBER 8, 2017
Mr. LeBlanc claimed a child to be his daughter: however, DNA evidence proved her to be neither adopted nor biological, and she therefore had no IAD H&C eligibility. Following the DNA test, the Officer concluded that the applicant was not the girl’s biological father, and thus she was inadmissible for the visa that Mr. LeBlanc was trying to obtain. Mr. LeBlanc claimed the child’s birth to be an indication that he is indeed the father, as shown by a traditional Haitian celebration of birth. The applicant asked the Court to approve the child’s birth as valid evidence of him being the father.
While the birth may have been documented, the fact that the accurate DNA test proves both individuals to be unrelated, the evidence that the girl is neither the applicant’s biological nor adopted daughter is valid.
Furthermore, the girl does not fall into the family category of Article 117 of the Immigration and Refugee Protection Regulations. The SAI’s decision of refusal was thus legitimate. Application dismissed.

December

GUNES FIDAN PENEZ / IMM-318-17 / 2017 FC 1001 / NOVEMBER 6, 2017

Ms. Penez is a citizen of Turkey with a degree in Tourism. In late 2016, she was accepted to Capilano University in Vancouver to study Tourism Management for International Students. She was scheduled to begin school in January 2017, but her application for a study permit was refused less than a month beforehand. The Officer was not convinced that Ms. Penez would leave Canada at the end of her studies. Two days later, Ms. Penez reapplied and explained her intentions to the Officer, but her application was refused for the same reasons. The Officer’s decision letter was short and supported by his claim that Ms. Penez’s anticipated studies in Canada were unreasonable in light of her previous qualifications, academic and professional background. The Officer also stressed the fact that Ms. Penez had been unemployed from 2008-2014, and has held irregular employment since. Furthermore, the Officer noted that Ms. Penez did not explain the fact that she was pursuing studies in Canada in the same field, and at a lower level. Ms. Penez described her wish to study in Canada as being a positive contribution to helping her reach her goal of managing her own hotel in the future, and that she intended to return to Turkey. She showed proof of ties through her husband, who works full-time in Turkey, and her large family who resides there and owns over a dozen properties. Furthermore, she had already studied abroad, and returned to Turkey at the end of her authorized stay. Ms. Perez stated that the Officer’s claims were illogical, as he was unconvinced that she was a genuine student because of her wish to continue studying within her field of profession. It was unreasonable for the Officer to find that the Applicant was not a student on this basis, that should have if anything been compelling, and for his failure in seeing her rationale in furthering her studies in Tourism. Furthermore, there was no suspicion of the applicant staying illegally at the end of her authorized period of study. In fact, all clear evidence pointed to the contrary of the Officer’s claims. The Officer was unable to provide an explanation as to why he preferred his conclusion over this evidence, and his reasons proved to be arbitrary. Ms. Perez’s application was thus allowed.

 

AN YUCHEN / IMM-1931-17 / 2017 FC 1029 / NOVEMBER 9, 2017

Mr. Yuchen’s first Permanent Resident card was valid until the end of 2010. In January 2011, he was issued a second card, which he applied to renew in 2015. The Case Processing Centre then sent a request for additional documents to the e-mail listed on his application, which belongs to his daughter. The electronic request stated that Mr. Yuchen’s application would be abandoned if he failed to submit the requested documentation in 180 days. In February 2017, he inquired about the status of his application, to which an Officer replied that it had been deemed abandoned for non-compliance with the e-mail request. The applicant argued that the fact that he inquired about his application status in 2017 was proof that he did not receive the e-mail request two years before. However, the GCMS notes that Mr. Yuchen asked for immediate review of his application based on his need for “urgent travel on November 30, 2015.” The applicant did not explain this request, but it suggested that at the time of the e-mail request, he would have been frequently monitoring his daughter’s account, which evidence shows as having functioned at all relevant times. On a side note, this situation brought the Respondent to require e-mail recipients to acknowledge receipt of its e-mails. Mr. Yuchen’s application was dismissed.

ORTIZ RODRIGUEZ, HAROLD / IMM-515-17 / 2017 CF 922 / OCTOBER 17, 2017

Mr. Rodriguez submitted a rehabilitation request for a crime committed in Colombia, after having been deemed rehabilitated of a conviction of the same nature that occurred in the United States. The Officer was not in favour of the request, based on the fact that Mr. Rodriguez had failed to share his criminal history with Canadian authorities. The Officer expressed her decision briefly and stressed the fact that the applicant had committed the same crime in both Colombia and in the United States, without considering the documentation showing proof of Mr. Rodriguez’s previous criminal rehabilitation approval. The Officer should have properly assessed the applicant’s previous approved rehabilitation application before making a negative decision. Consequently, Mr. Rodriguez asked that the Officer clarify her reasons, and to acknowledge a positive determining factor that she had ignored. The court found the Officer’s decision to be unreasonable, and Mr. Rodriguez’s application was allowed.

 

MICHELLE ANN WILLIAMS / IMM-227-17 / 2017 CF 1027 / NOVEMBER 9, 2017

Mrs. Williams moved to the United States in 1985. In 1998, she plead guilty to possessing a credit card without the consent of the cardholder. Mrs. Williams failed to pay her restitution, and was willingly deported from the United States. She arrived in Canada in 2000 on a visitor visa and married her husband, Brett Fowler, in 2009, whose medical condition requires regular treatments and assistance from her. The Officer acknowledged a letter from Mr. Fowler’s cardiologist highlighting the importance of Mrs. Williams’ presence to her husband’s health, but stated that he did not consider this to be sufficient grounds to exempt Mrs. Williams from her inadmissibility to Canada due to her serious criminality and failure to repay her restitution. Furthermore, the Officer found that the applicant could maintain contact with her family in New York and Trinidad and Tobago, and dismissed her Canadian reference letters as being normal, as relationships form during any extended stay. The Officer then noted that the applicant’s previous employment as a house cleaner in Toronto provided her with limited financial or professional ties to Canada, and that she could build these back in Trinidad and Tobago. The Officer described the Applicant’s description of difficult conditions in Trinidad and Tobago as general, and that would not impact Mrs. Williams. The Officer dismissed the fact that Mrs. Williams had no convictions in Canada as “expected” and outweighed all humanitarian and compassionate considerations in making his decision. The Officer’s decision does not sufficiently explain why Mrs. William’s conviction that occurred almost two decades ago outweighs the H&C factors, and failed to weigh the offense against H&C considerations. As the Officer was unable to explain the reason for his emphasis on the seriousness of the offense and disregard of the H&C factors, the application was allowed.

2018

January

SERGEY REZVYY / IMM-2891-17 / 2017 FC 1114 / DECEMBER 6, 2017

Upon seeking to extend a study permit that was granted to him in 2013, Mr. Rezvyy untruthfully claimed to have never been arrested nor convicted of a criminal offense. He had indeed been charged for breaking and entering as well as sexual assault, though he claimed that his initial answer resulted from him having misunderstood the question as to whether or not he had been arrested/convicted. The immigration officer who initially assessed Mr. Rezvyy’s application for a work permit was in no place to refuse it, as his charges had been stayed and no inadmissibility hearing had yet been carried out. Furthermore, Mr. Rezvyy claimed that the officer would have likely had (GCMS) notes suspecting him of misrepresentation, though the court was unaware as to whether such notes were used. Therefore, a new hearing was required in order to evaluate regulation 179, as well as to determine who had the power to act on the issue. Mr. Rezvyy’s claim that he made an innocent mistake was dismissed: he explained that he believed he would have to answer “yes” if asked if he had been arrested only if the situation included time in jail or legitimate conviction. The officer refused this explanation, as did the minister’s delegate, who sent it to the minister. Mr. Rezvyy had also contradicted himself by claiming to have disclosed his charges to an officer in a 2016 interview. Mr. Rezvyy was issued an exclusion order and left Canada due to his inadmissibility, and requested that the minister issue him a post-graduate open work permit that would allow him to return. Mr. Rezvyy was able to return at the expense of the minister, and his new permit was allowed.

 

NAHEED KARIM VIRANI / IMM-1945-17 / 2017 FC 1083 / NOVEMBER 30, 2017

After an immigration officer is convinced that a foreign national was convicted of an offence in accordance with s.36(1)(a) of the IRPA, and takes action in accordance with s.44(1), they are meant to prepare a report under section 44. Mr. Virani wished for his application to be considered on humanitarian and compassionate grounds, and submitted a request to the Minister. While the officer had the option of taking no action, he also failed to reply to the counsel regarding Mr. Virani’s request that the Minister conclude that no action should be taken. The officer briefly justified his decision as based on Mr. Virani’s inadmissibility under paragraph 36(1)(a) of the IRPA. The officer’s decision was seen as unclear, especially given his failure to acknowledge Mr. Virani’s request. Mr. Virani’s application was thus allowed.

 

KURTIS OMERO DOUGLAS / IMM-1652-17 / 2017 FC 1148 / DECEMBER 14, 2017

Mr. Douglas is a citizen of Jamaica who entered Canada in 2012 under a false name and with fraudulent documentation. Since his arrival in Canada, Mr. Douglas has married, had a child of his own, and treats his wife’s child from her first marriage like his own. In March of 2013, Canadian Border Services were informed of Mr. Douglas’ identity and situation, being that he had been deported from the United States and back to Jamaica following a robbery conviction in 2012. Mr. Douglas was arrested and detained based on his newly found inadmissibility to Canada due to foreign criminality, and misrepresentation. It was ordered that Mr. Douglas be deported back to Jamaica, though his documentation did not arrive until October of 2015. Two months later, he was charged with unauthorized use of credit cards and identification documents; after which he applied for permanent residence under the “In Canada Spousal Class.” In January of 2017, Mr. Douglas was finally convicted on the 2015 charges but received a conditional discharge. In March 2017, Mr. Douglas submitted an application on humanitarian and compassionate grounds and asked for his deportation to be deferred, as he had pending permanent residency and because his removal would negatively affect his family. While it was acknowledged that Mr. Douglas’ wife and children rely on him entirely for both financial and emotional support, the Officer concluded that Mr. Douglas should nonetheless be deported, and suggested the children visit their father overseas, and that he apply for a spousal sponsorship from outside Canada. The officer’s conclusions failed to address the Douglas’ financial situation that would prevent them from frequently visiting one another, and that it would be rather difficult for Mr. Douglas’ Canadian spouse to sponsor him from outside the country. The officer’s decision was deemed unreasonable, and Mr. Douglas’ application was allowed.

 

JASKARAN SINGH ET. AL. / IMM-1637-17 / 2017 FC 1150 / DECEMBER 14, 2017

Mr. Singh was convicted of driving under the influence in 2014, and applied for spousal sponsorship. The officer did not consider Mr. Singh’s two completed rehabilitation programs to be sufficient for the applicant to be exempt from the Act. While the officer acknowledged that Mr. Singh was unlikely to reoffend, he noted that both Mr. Singh and his spouse were born in India and that Mr. Singh’s family remained there. Furthermore, the officer noted that Mr. Singh would easily be able to reintegrate into Indian society, particularly due to his familiarity with the culture, ability to find work despite his status, and fluency in Hindi. The officer voiced his suspicions that Mr. Singh had worked in Canada without a permit and that his knowledge of immigration regulations were limited. Furthermore, Mr. Singh’s application for a work permit was refused in 2016 due to his inadmissibility, though he was issued a Temporary Resident Permit the following year. As the TRP is valid until 2020, the officer justified his decision by stating that Mr. Singh would not be required to leave immediately, and could apply for records suspension or rehabilitation. Based on these grounds, Mr. Singh was refused permanent residence. Mr. Singh noted that the officer’s statement that he was illegally employed was false, as his study permit allowed him to work in Canada. Despite this, the officer reinstated the fact that the Singhs would easily be able to establish themselves in India should they leave, and furthermore, neither Mr. Singh nor his wife were asked to leave Canada. Mr. Singh’s TRP allows him to remain in Canada for three years, after which he will be able to apply for rehabilitation. He may thus very well be able to reapply for permanent residence in the future; therefore, his application was dismissed.

February

MELANIE ABULOC / IMM-2387-17 / 2017 FC 1113 / DECEMBER 7, 2017

Ms. Abuloc is from the Philippines and applied for a TRV to visit Paulo Relva, her boyfriend who is 22 years her senior. She is currently unemployed, though has declared to have $3000 CAD, and has an 8-year old daughter in the Philippines. She has never been married. In Ms. Abuloc’s application for a Visa, her daughter’s present address is shown to be the same as her parents, whereas the applicant’s different address is shown to be a hotel. In a statutory declaration, Mr. Relva stated that he was “romantic partner” of Ms. Abuloc and that he would be financially supporting her during her stay in Canada. As Ms. Abuloc’s daughter was not discussed, the officer was not convinced that she would be a reason for the applicant to return to the Philippines, as she was living with her grandparents. The officer came to the conclusion that Ms. Abuloc saw the economic benefits to staying in Canada as outweighing the existence of her child, and dismissed the application.

NNENNA JUDITH DIMGBA / IMM-1994-17 / 2017 FC 14 / JANUARY 9, 2017

Ms. Dimgba was accused of providing a fraudulent letter of employment, an action that would result in being banned from Canada for five years. The officer who accused him claimed to have verified the legitimacy of Ms. Dimgba’s employer, though there was no recorded proof as to whether he ever made this investigation. The officer argued that, as the applicant’s phone number was the same as her employer’s, her letter was self-serving. Ms. Dimgba later explained this to be due to her position as head of HR and administration of her company, which brought her phone number to the paper’s letterhead. Moreover, the officer possessed the company’s documentation that clearly provided the Managing Director’s phone number. The officer had made no attempt to investigate why Ms. Dimgba’s number appeared on the letterhead, and failed to give her an opportunity to present her point of view (a requirement in decision-making). The applicant asserted that had the officer genuinely doubted her employment, he could have easily contacted the Managing Director. As the officer failed to make a small effort that would have, in essence, clarified the situation, his conduct was deemed unfair and the application was allowed.

HONG YAN LI / IMM-4872-16 / 2017 FC 1151 / DECEMBER 14, 2017

As part of her parents’ sponsorship application, Ms. Li showed that she was employed in Vancouver with Oxford College, a company being criminally invested for providing false employment records to clients. This company helped their clients achieve Canadian permanent residence, and Ms. Li was found to be one of them. In her application to sponsor her parents, Ms. Li listed Oxford as her employer from January-March 2009 and gave proof of weekly income that met the financial requirements for eligibility. But the CBSA detected misrepresentation, as Ms. Li’s citizenship application in 2012 showed that she was in fact in China from January-March 2009. Ms. Li was required to be honest in her sponsorship application, but failed to do so. While Ms. Li argued that her misrepresentation should only affect her own application to acquire immigration status, Section 40(1)(b) of the IRPA shows that if the individual sponsoring others makes a misrepresentation, they render the sponsored individuals inadmissible. Exempting Ms. Li from the consequence of providing false information to the IRCC would be exempting her from moral and legal obligations required for the sponsorship, and furthermore, the applicant gave no excuse for her purposeful misrepresentation. The application was refused.

AMANDEEP / IMM-2079-17 / 2018 FC / JANUARY 11, 2018

Mr. Amandeep’s relationship with his current wife began in 2012, and the two started living together as of 2014. In 2015, Mr. Amandeep listed himself as “single” on his permanent resident application, and claimed the concept of common law relationships to be inexistent within his and his spouse’s culture. In December of 2015, the two married. A month later, Mr. Amandeep’s spouse received a letter requesting information on her relationship, as she had applied for permanent residence under the Common-Law Partner in Canada class. The officer stated that Mr. Amandeep had failed to mention his spouse on his application, and found proof that the two had been cohabiting before landing in Canada. After analyzing and considering all information and evidence, the officer rejected the application.

CONCHITA FERRARO / IMM-2790-17 / 2018 FC 22 / JANUARY 10, 2018

It is essential that a given applicant show proof of a genuine marriage, and not one that was carried out for the main purpose of acquiring IRPA status. However, in the case of Mrs. Ferraro, the IAD ignored the positive evidence of her marriage, in contrast to her husband’s negative credibility, and came to the conclusion that while the marriage was genuine for her, it was not for her spouse. The IAD failed to even mention reference and support letters from both friends and family, the ongoing documented exchanges between Mr. and Mrs. Ferraro, and photos of the couple. The IAD’s disregard towards the evidence that Mr. Ferraro was in a genuine marriage was deemed unreasonable, and the application was allowed.

 

 

March

<strong>FAHRAD AMIR HOSSEINI / IMM-165-17 / 2018 FC 160 / FEBRUARY 9, 2018</strong>

Throughout his professional career in Iran, Mr. Hosseini has held a senior level position with subsidiaries for the financing of WMD (weapons of mass destruction). The visa officer argued that as activities that facilitate the Iranian government’s weapons of mass destruction are a threat to Canada, he had reasons to believe that Mr. Hosseini had contributed to WMD programs, and that he would continue to do so, should he be employed within his field of expertise while in Canada. Mr. Hosseini argued that the officer did not appropriately conduct the analysis required by the IRPA that would assess his employment under the Special Economic Measures Regulations (SEMA) for Iran. In deeming Mr. Hosseini inadmissible solely because of his affiliation with the SEMA, the officer’s judgment of him as posing a threat to Canada was inapt. Furthermore, Mr. Hosseini had outlined his employment history in a letter, which included work in a private equity company for the majority of his career. While evident confusion arose in terms of names of the various companies and which ones were linked to or listed by the SEMA, the officer stated that Mr. Hosseini worked for an entity that had been listed in the SEMA Regulations. It appeared that the officer’s finding was a simple Google search for an SEMA list, which resulted in a hit on Mr. Hosseini’s employer, as it contained all of the words from a SEMA-listed company. Moreover, the record showed that Mr. Hosseini’s company closed four years before the SEMA-listed company. As the officer’s decision was shaped by one Google search, it was found to be invalid, particularly given the confusion regarding the companies. The officer’s conclusion that Mr. Hosseini was inadmissible based on the belief that his employment in Canada would bring him to contribute to Iran’s WMD was unreasonable, and furthermore implied that some Canadian corporations are contributing to the development of Iranian WMD. Thus, Mr. Hosseini’s application was allowed.

<strong>SIVATHAKARAN ARIYARATHNAM ET. AL. / IMM-4114-16 / 2018 FC 162 / FEBRUARY 12, 2018</strong>

In Mr. Ariyarathnam’s case, the officer relied on an Immigration Appeal Division decision made 12 years earlier, for the purpose of finding him inadmissible on the grounds of criminal liability. The decision letter declares that Mr. Ariyarathnam was a member of an organized crime group, which would outweigh any H&amp;C considerations. The immigration officer failed to refer to the IAD decision where the police officer acknowledged that Mr. Ariyarathnam had not been involved in any criminality since his final conviction in 2000 (Canada grants pardons for offences close to 20 years old). While the IDA took into account that the applicant was still a gang member for three years after his (pardoned) convictions, the officer still relied on these convictions, that had already been used over a decade prior, to find Mr. Ariyarathnam inadmissible. The officer relied on the IAD’s 2004 decision, without properly assessing its evidence, and concluded that the safety of Canadians outweighed the applicant’s serious H&amp;C issues, which included his 12-year-old son living in Canada. The officer stated that organized crime issue never received final adjudication, and thus that it was within the Minister’s discretion to pursue one avenue over another. Mr. Ariyarathnam argued that potential inadmissibility was not mentioned when he was applying for his sponsorship. Based on his notes, the officer failed to give the interests of the applicant’s child proper attention, and vaguely stated that the interests had been taken into account. The officer then claimed that the child has been able to live without his father’s presence. The officer’s main concern, being that Mr. Ariyarathnam’ presence would jeopardize the safety of Canadians, is ultimately unfounded and shows no evidence of threatening Canadian society in any way. Furthermore, the initial appeal to the IAD, which was brought to the officer’s attention, had been allowed on H&amp;C grounds; the officer, however, made no inquiry as to what this was about. The fact that the officer ignored the interests of the child, deemed the H&amp;C considerations insufficient in light of the unfounded “danger” posed by the applicant, never reviewed the evidence of the gang membership and ignored the pardon granted to the applicant by Canadian authorities, is ultimately unreasonable. The government had chosen not to pursue the matter of Mr. Ariyarathnam’s involvement in organized crime, yet the officer came to conclusions based on a panel that had been used for a different purpose, and in the past. By failing to accept the legal effect of a granted pardon, the officer failed to acknowledge that it ever happened. Furthermore, there is nothing to support the officer’s conclusion that the applicant is of danger to the country, other than his brief reading of an IAD decision made by a police officer that the applicant was involved in a gang in the 90s. As the officer had no reasonable grounds to support his unfounded decisions, the application was allowed.

<strong>MYRLA CATINDIG / IMM-2019-17 / 2018 FC 92 / JANUARY 30, 2018</strong>

Ms. Catindig requested a TRP in her H&amp;C application, should her application alone be refused. It is unclear as to whether or not the officer assessed her request, as he failed to mention whether a TRP was to be issued, or whether he even performed any assessment. As the officer did not appropriately consider Ms. Catindig’s request, the Court decided that a different officer, who would perform a full assessment of Ms. Catindig’s application, should make the decision. The application was allowed.

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April

<strong>ANA MILENA DEVIA TUIRAN / IMM-1991-17 / 2018 FC 324 / MARCH 21, 2018</strong>

After getting married, Mrs. Tuiran applied for permanent residency, using her husband as a sponsor. While waiting for her application to be processed, she attempted to return to the United States, but was refused entry by officers who noted that she had no return ticket, and were unconvinced by her reasons for travel. The following day, Mrs. Tuiran was found to be inadmissible to the United States, and was banned from entering the country for five years. In 2017, Mrs. Tuiran applied for a TRV in which she answered “yes” to the question as to whether she had ever been denied entry or ordered to leave a country, but only referenced two refused TRV applications from 2015. Mrs. Tuiran was then deemed inadmissible for failing to mention that the American visa submitted with her TRV application had been cancelled. Mrs. Tuiran claimed to have been unaware of the cancellation of her US visa that occurred when she was refused entry to the States, and contended that the officer failed to consider her mistake upon making his decision. However, as Mrs. Tuiran had applied for Canadian and international visas before and was highly educated, it was difficult to conceive that she had no idea of her visa cancellation, unless she had resorted to “willful ignorance.” Furthermore, as Mrs. Tuiran was present at the cancellation of her visa, the officer deemed her inadmissible for misrepresentation, and the application was dismissed.

<strong>GRACE UDODONG ET. AL. / IMM-1047-17 / 2018 FC 234 / MARCH 5, 2018</strong>

When a Temporary Resident Status applicant seeks to be reinstated to a temporary resident class different than their current (temporary) class, they must meet the initial requirements of their stay. In this case, the applicants should have requested and been granted restoration of their visitor’s status: however, they asked for restoration of worker/study status. Because they applied to restore their permits within the visitor class, they were required to fulfill the initial requirements of their stay as visitors, not the worker class. Because the stated intention was study, the officer concluded that the applicants failed to meet the initial requirements of their status as temporary visitors. Entirely due to the applicants’ expressed intention, the applications were dismissed.

<strong>PAULO CESAR CANO GRANADOS / IMM-3200-17 / 2018 FC 302 / MARCH 15, 2018</strong>

In 1998, Mr. Granados was convicted of assault causing bodily harm. Instead of being referred for an inadmissibility hearing during his 9-month jail period, a warning was issued to Mr. Granados, who was again convicted of serious criminality in 2016. A deportation order was issued for Mr. Granados in 2017, but the appeal was declined by the IAD who had no jurisdiction to decide upon it. Tran has no impact on the results in this situation, as by law, individuals who are inadmissible due to serious criminality cannot benefit from an IAD appeal and furthermore, Mr. Granados would have been aware of his potential deportation based on the fact that he had been notified in advance. Essentially, the Minister provided Mr. Granados with the choice to reoffend and be deported, or not to reoffend and remain in Canada back in 1998. Mr. Granados reoffended again in 2016, and thus brought an admissibility hearing upon himself. His application was thus dismissed.

<strong>MICHAEL ROBINSON [RESPONDENT] / IMM-3767-17 / 2018 FC 159 / FEBRUARY 9, 2018</strong>

In 2002, Mr. Robinson was convicted of DUI in the United Kingdom. In 2008, when he applied for a Canadian work permit, he was accused of misrepresentation by the Minister when he replied negatively to the question: “Have you or any of your family members in Canada ever been convicted of or charged with any crime or offence in any country?” Both the ID and IAD recognized Mr. Robinson’s failure to disclosure the accurate information as an innocent mistake, and rejected the Minister’s appeal. However, neither the ID or the IAD provided reasons for their finding that Mr. Robinson made a mistake, nor did they provide evidence in support of it. Their lack of reasoning or explanation of their decision was ultimately a legal error, and the Minister’s application was allowed.

<strong>BARINDER SINGH SIDHU [RESPONDENT] / IMM-3817-17 / 2018 FC 306 / MARCH 16, 2018</strong>

This case brings attention to the duty of candour, and to how much an applicant should voluntarily disclose as a dependent of another principal applicant. In this situation, the respondent was an adult both at the time of completion and entry, and was aware of his father’ conviction and life imprisonment sentence. The father’s initial appeal was denied less than three months before he planned to enter Canada, as he was on parole. While Mr. Sidhu denied knowing the content of the form, he had evidently signed it, though it had been prepared by travel agents and was in English. At the airport in Vancouver, both Mr. Sidhu and his father completed a form in Punjabi; though Mr. Sidhu did not know how his father had answered the given questions, and was not asked by an immigration official whether his father had been convicted. Mr. Sidhu’s form did not include questions on the criminal history of his family: only his father was required to disclose criminal information on dependent applications (being Mr. Sidhu). The IAD therefore concluded that the respondent had no specific duty to provide information on his father at the airport, and the application was allowed.