Applicant Case Summaries – 2018

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.

2018: January February March April May June July/August September October November


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 offense 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

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

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.

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

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&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&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&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&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.

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

Ms. Catindig requested a TRP in her H&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.

April

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

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.

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

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.

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

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.

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

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.

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

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.

May

HAZEL SEVILLA / IMM-3726-17 / 2018 FC 424 / APRIL 19, 2018

An Officer arbitrarily imposed a requirement that a certain amount of work experience is necessary for work permit issuance and denied the applicant for not having the amount of experience he decided was necessary. The Court determined that an officer cannot just make up a work experience requirement that has no basis in the Immigration and Refugee Protection Act. His decision was seen to be unrestrained discretion due to the fact that he could not explain where this requirement came from. For instance, the National Occupational Classification, which lists qualifications to perform a job, did not state anything about work experience being necessary.

ODNOO ANDRYEI / IMM-4365-17 / 2018 FC 345 / MARCH 27, 2018

The applicant wanted her son who still resided in Mongolia to gain permanent resident status in Canada. However, in order to do so, she had to prove to the Officer that she had custody over the child and the Officer gave her 30 days to provide the relevant documents. Before the time elapsed, the Officer decided that she was unable to prove custody over the child. The judge in this case sided with the arguments of the applicant, and decided that when a deadline is given to submit documents, the officer cannot make a decision about the application before the given time has elapsed.

HAOCHEN WANG / IMM-3584-17/ 2018 FC 368 / APRIL 6, 2018

The applicant had two different passports: a public affairs passport for work and a private passport for personal use.  On his application, the applicant only disclosed personal travel on his regular passport, even though the Your Travels form stated specifically: “this includes all trips: tourism, business, etc”.  The officer judged this to be misrepresentation because the question in the form was unambiguous, and further, the applicant was both aware of his undeclared travel and that fact that he had two passports. The applicant tried to argue that the non-disclosure of his travel with his public affairs passport was simply an innocent mistake and that he did not intend to mislead, as he believed that immigration was personal and irrelevant to his employer.  In Court, the applicant maintained this argument and submitted that when assessing misrepresentation, an officer must consider whether the applicant had the intention to withhold important information. The Court rejected the applicant’s arguments and dismissed his application. The Court emphasized that there is no duty for the officer to accept all explanations and that the applicant’s explanations were not sufficient. Firstly, the Court had an issue with the fact that the applicant actually decided that travel with his public affairs passport was not important to mention. Secondly, the Court found that because he was fully aware of the non disclosed information, that his application could not be saved like in Jean-Jacques v MCI or Medel. Thirdly, it did not matter for the Court that he eventually submitted his public affairs passport, because the misrepresentation still occurred.

HARJINDER SINGH WARAICH / IMM 3946-17 / 2018 FC 307 / MARCH 16, 2018

The permanent resident status of the applicants was removed because they were found to have no real establishment in Canada. The applicants attempted to maintain their permanent resident status by being on the payroll of a Canadian company while they were stationed in India. They argued that their work in India had a “sufficient connection… to the ongoing operation of the business in Canada.” However, the court found that simply being on the payroll of a Canadian company, where the company has no operation, business activity or employees in Canada, fails to meet the requirement of a “sufficient connection”.  One applicant was a member of Immigration Consultants of Canada Regulatory Council, but this membership was considered to be merely one fact of many, and was outweighed by the fact that he lived in India, had no dependents in Canada, and worked for a Canadian company without real operation, business or employees.

THOMAS WILLIAM MCALPIN / IMM 1542-17 /2018 FC 422 / APRIL 19, 2018

This case raises the question of whether withdrawn charges could be considered credible and trustworthy evidence of a history of interaction with the law, and secondly, whether withdrawn charges could be considered evidence of a history of criminality. The Chief Justice of the Federal Court answered in the affirmative for the first question, and in the negative for the second question. The Chief Justice emphasized that it is never reasonably open to the Officer and the Delegate considering an application to use withdrawn charges as evidence of a history of criminality. With regards to the history of interaction, it is reasonably open to the Officer and the Delegate to use withdrawn charges as evidence, as long as there is no evidence to suggest that the police may have been motivated to fabricate such charges.

June

KATERINA KOMLJENOVIC / IMM-704-17 / 2018 FC 460 / APRIL 27, 2018

The applicant, a 37-year-old citizen of Croatia, was found to be illegible for the Post-Graduate Work Permit due to the fact that she was enrolled at a private degree-granting institution and not a public institution as per the requirement of the Minister. She challenged her illegibility for the Post-Graduation Work Permit by arguing that this decision was contrary to her right to security under Section 7 of the Charter as it resulted in financial loss. The applicant showed adequate due diligence as she was informed by both her educational institution and the IRCC that her that her educational institution and program were suitable for a PGWP. Regardless of these facts, her constitutional argument failed as the court deemed her financial loss to be insufficient to find that she suffered psychological harm and thus that she was deprived of her right to security protected by section 7. The doctrine of legitimate expectations, which is a procedural fairness doctrine established in common law, was overridden in this case by the clear intent of Parliament that the Post-Graduate Work Permit be given to postgraduate students from public institutions.

RAYMOUND ANTOUN / IMM-5076-17 / 2018 FC 540 / MAY 24, 2018

This case clarifies how establishment in Canada and humanitarian factors are assessed for determining whether a renewal for a permanent residency card should be allowed. The applicant succeeded in convincing the Immigration and Appeal division that he had sufficient establishment in Canada due to the fact that his family works and lives in Canada even though he does not work or live in Canada. This argument failed in the Federal court, as the justices sided with the Minister that such an approach to assessing establishment in Canada minimizes the residency obligation which is central to the successful integration of permanent residents, the actual objective of the act. The applicant’s effort to find work in Canada, along with the fact that he was sending money to his family in Canada, was unable to serve as exceptions for the obligation that the applicant actually reside in Canada to retain his permanent residency card. The fact that he did not seek jobs in Canada outside of the field of civil engineering or pursue further education to make him more marketable worked against his favor. The Federal Court also disagreed with the Immigration Appeal Division’s assessment that emotional family hardship would be caused to the applicant if his application was dismissed. There was no evidence of hardship warranting humanitarian relief because the applicant chose to live apart from his children and his children successfully integrated in Canada without issue.

BRENDAN GANNES // IMM-4350-17 // 2018 FC 499 // MAY 10, 2018

The applicant has had permanent resident status in Canada since his arrival at the age of 3. His permanent resident status was removed after he was convicted of possession of cocaine and marijuana for the purposes of trafficking as well as possession of a loaded prohibited firearm.   In response to this, the applicant tried to restore his permanent resident status through humanitarian and compassionate grounds and also applied for a Temporary Resident Permit. The Officer rejected both requests and the applicant challenged both decisions. No issue was found with the officer’s decision to reject the renewal of the applicant’s permanent resident status, but the officer’s decision to reject the applicant’s Temporary Resident Permit application was deemed to be outside of his authority pursuant to s.24(1) of IRPA since the applicant was no longer a permanent resident.  The applicant’s request for a Temporary Resident Permit will be determined by another Officer who has the authority to make decisions regarding Temporary Resident Permit applications from foreign nationals.

AI YANG // IMM-4079-17 // 2018 FC 496 // MAY 9, 2018

The applicant was ordered to leave Canada and voluntarily complied with the order. Despite complying with the order, she was not given her destination of choice as is required by s.238 of Immigration and Refugee Protection Regulations. The Officer did not approve this choice of hers because he/she considered her to fall within the exceptions of s.238(2). An Officer is allowed to reject a foreign national’s choice of destination if he/she is a danger to the public, a fugitive in Canada or another country, or seeking to evade the cause of justice in Canada or another country. It is a rule of procedural fairness that the applicant is advised of the case against her, able to respond to it and have her submissions considered carefully, but since none of this happened, the officer’s decision was rejected. The reasons given by the Officer for why he/she considered the applicant to fall within the last of the three s.238(2) categories were extremely brief and did not make reference to any evidence or deal with any of the applicant’s submissions. The Applicant argued that an admissibility hearing was also required but this was not deemed to be part of the content of the duty of procedural fairness owed by Officers pursuant to s.238(2). The applicant’s appeal was allowed.

July/August

BRYAN SKIE SUMALDE RAYMUNDO // IMM-4963-17 // 2018 FC 759 // JULY 19, 2018

The applicant, a citizen of the Philippines, applied for a student visa to study at a Canadian college’s International Business Program. Having previously studied marine transportation, the applicant was hoping to build on this education by studying International Business, a program that would allow him to develop skills necessary to succeed in forming his own marine transportation business back in the Philippines. The Court disagreed with the Officer’s conclusions regarding this application and ultimately allowed his application. The Officer concluded that the applicant’s proposed studies in Canada were not a logical continuation of his previous studies, but the Court could not find any justification for this judgment made by the Officer. As the applicant was planning to be hosted and supported financially by family in Canada during his stay, the Officer was unsatisfied that the applicant had good reason to return to his home country. The court, on the contrary, pointed out that as the applicant’s child and wife remained in the Philippines, his return to the Philippines is likely after the completion of his studies in Canada.

HAJDAR KRASNIQI // IMM-4740-17// 2018 FC 743 // JULY 17, 2018

The applicant, a citizen of Kosovo, sought a Temporary Resident Permit but was refused on the basis of having a prior criminal conviction of being in possession of fraudulent documents. The applicant challenged this decision on two grounds.

Firstly, he argued that the decision maker did not take into consideration the minister’s specific guidelines for issuing Temporary Resident Permits in his/her decision. The Court disagreed with the applicant that the decision maker was obliged to take these guidelines into consideration, and reaffirmed the decisions in Palermo and Vaguedano that since guidelines are not listed in the statute (IRPA) itself, that the decision-makers are not obliged to take them into consideration as they are not law. The court also stated that to force the decision maker to follow these guidelines would be to remove their discretion entirely.

However, the court agreed with the applicant’s second argument that the decision was unreasonable due to faulty analysis of the facts of the applicant’s situation, and ultimately allowed the application. The applicant argued, and the court agreed, that the decision-maker confounded the applicant’s criminal conviction with his unlawful immigration activity; the applicant overstayed his visa in the U.K and worked without authorization. Such an error of confounding these two separate issues meant that the decision maker’s analysis did not properly analyze the necessary factors involved in an analysis of an applicant’s criminal inadmissibility. Examples of these factors include how much time had elapsed since the offense and whether the applicant has a pattern of criminal behavior. Moreover, not granting the applicant a Temporary Resident Permit would have potentially forced the applicant’s Canadian wife to move to Kosovo, which would have burdened her with substantial hardship. The court found it unreasonable that the decision maker showed a significant lack of appreciation for the substantial hardship.

 HARJIT SINGH // IMM-5341-17 // 2018 FC 744 // JULY 17, 2018

The applicant’s spousal sponsorship application was refused on the grounds of criminal inadmissibility, he was subsequently issued a deportation order. The applicant was charged with driving with over the legal limit of alcohol in his blood. The impaired driving charge was eventually dismissed, and the applicant pled guilty to the remaining charge, which the Crown chose to prosecute by summary conviction. The Court found that the Officer’s choice to refuse the application on grounds of criminal inadmissibility erred for several reasons. Firstly, the applicant was entitled to have his prior clean criminal record considered, and no reference was made to this clean record in the Officer’s decision. Secondly, the Court also took issue that the Officer’s decision did not reference the applicant’s deep remorse, which is considered to be an indication of rehabilitation. Lastly, the Court found that the Officer seriously downplayed the consequences of separating the married couple. The applicant’s wife, a Canadian citizen with health problems, would have been forced to choose between following her husband to India, a country with limited health care, or remaining in Canada to benefit from Canada’s health care system.

AMRINDERJEET SINGH GARHA // IMM-5630-17 // 2018 FC 757 // JULY 18, 2018

The applicant was deemed inadmissible and issued an exclusion order, meaning that the applicant was ordered to leave Canada for a year. The applicant challenged the order by contending that the delegate did not take into account the Public Policy established by the Canadian Department of Immigration, Refugees, and Citizenship. However, the Public Policy in question was introduced for the purpose of permitting an expedited process for the immigration of the spouses of Canadian citizens and permanent residents. As such, the court disagreed with the applicant that this Public Policy had to be taken into consideration by the delegate since it applied to spousal sponsorship, and not removal orders resulting from criminal inadmissibility. The delegate’s decision was deemed to be entirely reasonable and in accordance with the law.

 YANLI YANG / IMM-4-17 / 2018 FC 780 / JULY 25, 2018

 The applicant, a 67 year old national of China, was seeking family class immigration to Canada. The sponsor was the applicant’s biological daughter. The officer refused the application on the ground that she was no longer legally the mother of the sponsor, as she decided to let her brother adopt the sponsor at the age of 7. For this reason, the officer found that the applicant did not fall into the family class provisions in section 117 of the Immigration and Refugee Protection Act. The court, however, stated that the officer did not properly apply Section 25 of IRPA, which states that since the family class rules cannot accommodate the large variety of possible family circumstances, there can be humanitarian and compassionate reasons for admitting people who are inadmissible under the general rules. For the Court, the present case was a textbook example of a humanitarian and compassionate reason. The mother decided to let her daughter get adopted by her brother and his wife following her divorce with the sponsor’s biological father. She made this decision because she feared the stigmatization that would surround her daughter as a child of divorced parents. The officer did not properly consider the substantial evidence that this sort of stigmatization was real in China and the evidence from the sponsor’s statement that she maintained a strong emotional bond with her biological mother. Accordingly, the court found that the officer made an erroneous finding of the facts of the case and did not apply Section 25 of IRPA purposively.

 KAKHA CHANTLADZE / IMM -5208-17 / 2018 FC 771 / JULY 25, 2018

 The applicant’s spousal sponsorship application was denied on the ground that he did not primarily live with his wife between 2015 and 2017. The applicant was living apart from his wife because he had pursued employment opportunities in another province. For the purpose of a spousal sponsorship application, a one-year period of cohabitation must be established. Once this period has been established, breaks in cohabitation are accepted if the married couple has the intention to live together as soon as possible and can provide evidence of their continued relationship. In this case, the officer erred in not taking into account the fact that the applicant had already lived with his wife for more than a year. Moreover, there was substantial evidence that they remained in a conjugal relationship, such as the fact that they had joint bank accounts, that acquaintances vouched for their ongoing relationship, and that they continued their relationship through visits. The officer’s decision to deny the application on this ground was rejected by the court and the application was ultimately allowed.

September

YURIY SHEKHTMAN // IMM-5473-17 // 2018 FC 964 // SEPTEMBER 28, 2018

If a temporary resident of Canada loses their status, they may apply for restoration; however, eligibility for restoration requires the application to be submitted within 90 days of the status being lost. In the case of Mr. Sheckhtman, disputes surrounded whether the terminated status was considered ‘lost’, and the 90-day countdown started, at the time when the decision refusing his request for extension was rendered by the Canadian immigration authorities, or at the later time when it was communicated to Mr. Sheckhtman. Under the first interpretation, Mr. Skeckhtman’s application would have been considered late, and consequently denied. However, there was no evidence to reasonably determine that the Refusal Decision had been sent by the Canadian immigration authorities on a set date, there was only the evidence of it being received by Mr. Sheckhtman. As a result, the judge concluded that the only equitable interpretation of the 90 day period requirement, was that loss of status does not take effect until communicated to the individual and that this communication is the responsibility of CIC. Mr. Sheckhtman’s restoration application was therefore remitted back to CIC, with instructions to determine that was submitted within the regulated 90-day period – application allowed.

October

ERIC APPIAH // IMM-1412-18 2018 // FC 1043 // OCTOBER 17, 2018

For Mr. Appiah, his refusal for a study permit sixteen years prior may not have seemed relevant to his later application for a work permit; however, due to his failure to disclose this information, Mr. Appiah was liable for misrepresentation. Mr. Appiah submitted that it was an honest mistake and there was no intention of withholding information, that he did so only because he forgot about the study permit and should therefore reasonably be excused from the misrepresentation rule. However, the innocent misrepresentation exception is narrow and only excuses withholding of material information under extraordinary circumstances. An applicant must have honestly and reasonably believed they were not misrepresenting a material fact, knowledge of the misrepresentation must be considered to have been beyond the applicant’s control, and the applicant must have been reasonably unaware of the misrepresentation. In some cases, exceptions have been granted where information given in error could be corrected by reviewing other documents submitted as part of the application, suggesting that there was no intention to mislead. However, the Court does not allow exceptions under circumstances where the applicant knew about the information, yet contended that they honestly and reasonably did not know it was relevant for the application; such information is within the applicant’s control and it is their responsibility to complete the application accurately. Subsequently, in the case of Mr. Appiah, despite his claims of an honest mistake being plausible, the Court could not determine this for certain. As such, the officer was not concluded as unreasonable in his refusal judgment, and the application was dismissed.

TREVOR CLIVE MONTGOMERY SMITH // IMM-305-18 2018 // FC 1020 // OCTOBER 11, 2018

Mr. Smith is a citizen of Bermuda and the father of Canadian born triplets. Whilst applying for an electronic Travel Visa (Eta) Mr. Smith responded ‘no’ to an online application question when he should have responded ‘yes’. The question related to Mr. Smith disclosing that he been charged with criminal offenses in both the United States and Bermuda. A procedural fairness letter was sent to Mr. Smith advising him of the potential misrepresentation and providing him the opportunity to explain. Mr. Smith claimed to misunderstand the question, arguing that because his US charge was dismissed and his Bermudan charge was expunged, that in his mind, they were not relevant for disclosure. The officer believed that Mr. Smith’s incorrect response was not due in any part to the question being vague or misleading, subsequently rendering him with an inadmissible status for misrepresentation. Under judicial review, this decision was considered reasonable and Mr. Smith’s application was dismissed.

ANDREI COJUHARI // IMM-568-18 2018 // FC 1009 // OCTOBER 9, 2018

Mr. Cojuhari came to Canada from Moldova in 2010 under the Live-In-Caregiver Program and was on track to become a Canadian permanent resident until a DUI charge in 2012 made him inadmissible. Despite this, Mr. Cojuhari continued his attempted to gain permanent residence, extending the application to his daughter who was previously ‘locked in’ as a member of the Family Class but whose age now required a fresh application. With the knowledge that his DUI offence made him inadmissible, Mr. Cojuhari appealed for an exception, putting forward several factors, including: that this was the only mark on his record, his immediate guilty plea and completion of all sentencing through paying his fine, the fact that he was given a lenient sentence, that he had not gone to the party with the intention of driving after drinking, that he was applying for record suspension, that he had otherwise fully complied with Canadian immigration law, and that he lived a stable life with friends who speak warmly of him in their letters of support. Additionally, Mr. Cojuhari highlighted that since the incident he had given up driving completely. Nonetheless, he was denied Permanent Residence. The Officer’s notes appeared only to consider that this was Mr. Cojuhari’s only conviction, that he has a close relationship with his Canadian-living niece, and that his daughter would not be able to join him as a dependant. Turning then to a Temporary Residence Permit (TRP), Mr. Cojuhari was again rejected, solely due to lacking persuasion that a record suspension for his DUI offense would be granted. The decision to deny Mr. Cojuhari conflicted with the eligibility analysis of the IRPA under Section 24; however, the guidelines do state that officers should only issue TRPs “in exceptional circumstances and when the need of the individual to enter or remain in Canada is compelling…”. Problematically these guidelines do not mirror Section 24 of IRPA, and it falls to the question under the Statute, which is whether a TRP is ‘justified’? Subsequently, the guidelines were concluded to be over-restrictive and Mr. Cojuhari’s application was allowed.

November

KHURRUM SHAHBAZ GILL // IMM-1636-18 // 2018 FC 1202 // NOVEMBER 29, 2018

Upon request, all visa applications may be reconsidered following a refusal at the officer’s discretion, though it is not required. The first stage of a reconsideration request is for a ministers-delegate, typically a CBSA immigration officer, to determine whether or not the case should be proceeded with. If yes, the second stage of the actual reconsideration is undertaken. In the case of Mr. Gill, his application for reconsideration was submitted on the grounds that he was not previously aware of a fatawa(ruling on a point of Islamic law, given by a recognized authority) which had deterred his application approval, supported by the fact that his family had moved out of the area, and therefore he could not provide this information in his interview. The officer deliberated the application for reconsideration; unsure of certain aspects, the officer sent a procedural fairness email to provide Mr. Gill with a chance to greater explain his circumstance. Mr. Gill soundly provided the supporting documents along with rational explanations from himself and third parties. Even so, the officer concluded that the applicant was not adequate for actual reconsideration (second stage of the process). A dispute, however, arose due to contradiction from the officers handling of the case; specifically, whether it reached the first or second stage of the reconsideration process. The officer had indicated that the new information was insufficient to ‘reopen the application’, but also stated that he had ‘weighed the reasons’ within the application. Sending the procedural fairness email implied that the case had reached the second stage, and the original application was actually undergoing reconsideration; this was an error of the officer if he did not intend to address the received information. Notably, this stage requires the officer to explain the reconsideration outcome decision based on the supporting evidence; however, within the officer’s notes, there is no mention of the procedural fairness email and no explanation as to why the initial refusal should remain unchanged. As such, it was decided that the officer did not carry out the necessary analysis required for second stage reconsideration and Mr. Gills application was thus allowed.

ANTONIO EDUARDO DA SILVA FELIX // IMM-1950-18 // 2018 FC 1132 // NOVEMBER 8, 2018

Since 1960 (aged 8) Mr. Felix had been a permeant resident in Canada, living the majority of his life in the downtown Toronto area. During his time in Canada, he had married, had 4 children, 16 grandchildren, one great-grandchild, and a large extended family, most of whom also live in the Toronto area. Yet on October 20, 2013, Mr. Felix was removed from Canada and deported to Azores, Portugal, where he remains today. Prior to his deportation in March 2013, Mr. Felix submitted an application to remain in Canada on Humanitarian and Compassionate grounds, but his application was refused by an officer. Mr. Felix had suffered most of his life with addictions of alcohol and drug use. He had accumulated over 30 criminal convictions, including assault with a weapon, carrying a concealed weapon, theft, and numerous narcotic-related charges, though he was shown to not have used illegal drugs since 2012. Mr. Felix also suffered from several serious health problems, including Hepatitis C which requires antiviral treatment, speech difficulties, severe osteoarthritis which greatly hindered his mobility, major depression combined with anxiety and panic attacks, and incontinence of both urine and stool. In Canada, Mr. Felix required great assistance from his family, particularly his sister, when accessing healthcare. In Portugal, Mr. Felix had no family or friends available to provide similar assistance, he was also no longer able to speak Portuguese, remembering very little of his childhood there. Furthermore, Mr. Felix also was shown to be living in deplorable conditions in Portugal, in a moldy, bug infested rooming house with no electricity or heat, filled with individuals using illegal drugs. Mr. Felix’s application also specified that while publically available, healthcare in Portugal is under-resourced and unable to meet the needs of the majority of deportees, particularly those like Mr. Felix who have mental and physical health problems. Moreover, Mr. Felix had already made attempts to access healthcare for his Hepatitis C in Portugal but had not been provided with treatment.

Despite this evidence, in the review of Mr. Felix’ application, the officer put forward the document from the World Health Organization specifying that all residents of Portugal have access to health care. The officer concluded, “I do not have information indicating why the applicant was prevented from seeing a doctor in Portugal to care for his Hepatitis C, in the context where the majority of healthcare seem to be accessible for all citizens and for which the cost seems to be paid by the state.” The officer is thus criticized for having disregarded Mr. Felix’s vulnerability and ignored the reference to significant barriers that prevent Mr. Felix from accessing adequate health care in Portugal. Conversely, the officer is reasoned to have held some consideration referring to the points that Mr. Felix benefitted from the support of his family, that after deportation he was living in a place that was not safe, and that the applicant had submitted several documents explaining some of the deficiencies in the Portuguese medical system. However, the fact that the officer is shown to have considered these points of evidence in the decision, further argues their failure in appreciating the barriers Mr. Felix was subject to face accessing his needed healthcare in Portugal. The officer’s decision was subsequently rendered unreasonable and the application was allowed.