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
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.
