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