Applicant Case Summaries – 2017

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.

2017: May June July October November December


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.