Applicant Case Summaries – 2019

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.

2019: March April


2019

March

MARKO PISAREVIC // IMM-3715-18 // 2019 FC 188 // FEBRUARY 14, 2019

Mr. Pisarevic is thirty-eight years old and a citizen of both Bosnia and Herzegovina and Croatia. In his home country, Brcko in Bosnia and Herzegovina, he is an experienced lawyer with his own practice. Mr. Pisarevic applied twice for a Canadian study permit in order to attend a paralegal program in Alberta, proposing to finance his studies by selling his practice. He was denied. Though not specifically reasoned by the officer, several issues can be highlighted in the reconsideration of Mr. Pisarevic’s case. Firstly, the matter of how he proposed to fund his studies; by selling his practice in his home country, the officer had reason to believe that Mr. Pisarevic would have no professional incentive to return to Bosnia and Herzegovina. Notably, Mr. Pisarevic does not give an explanation to consider the contrary. Second, Mr. Pisarevic did not explain in his application how studying as a paralegal would advance his career, seeing as he was already an established lawyer in Bosnia and Herzegovina. With consideration for these two heavily weighing factors, additional elements including the lack of ties Mr. Pisarevic had to Canada and his previous travel to other jurisdictions, are unimportant. Subsequently, the Officer was considered reasonable in his conclusion that Mr. Pisarevic was unlikely to return to his home country once he had completed his studies. The application was therefore dismissed.

TIMOTHY DURKIN // IMM-3404-18 // 2019 FC 174 // FEBRUARY 12, 2019

Mr. Durkin is a long-standing permanent resident of Canada who holds British Citizenship. In 2013, he was indicted by a Grand Jury in Alabama, along with three others, for an alleged conspiracy to commit securities and wire fraud. Mr. Durkin returned to Canada just a few weeks before the United States indictments were issued, whether this was a coincidence or not is unknown. However, Mr. Durkin did not affirm that he was unaware of the ongoing FBI investigation before he left the US or the fact that a warrant had been issued for his arrest. In Canada, the CBSA did have a duty to inform Mr. Durkin of the information in its possession outlining his related United States criminal allegations, provided that it was needed it in order to make a meaningful submission to the Delegate. When this information was not provided, Mr. Durkin argued that his participatory rights were being infringed. However, the fundamental question of this case was whether Mr. Durkin had established that he lacked sufficient knowledge to respond to the allegations made against him by the United States law enforcement authorities.  

Mr. Durkin’s submissions to the CBSA were considered with a wary approach, as he provided a detailed description of his business history but gave no information for the period of time between 2009 and 2013, when it is alleged he participated in substantial fraud. Moreover, it is reasonably implausible that Mr. Durkin would have needed any information from the CBSA to understand the scope of the criminal case against him. Even if he was not entirely aware, much of the information Mr. Durkin claimed to have needed would have been publicly available. Simple queries to obvious sources in Alabama would also have produced what he says he needed. Subsequently, seeing as Mr. Durkin gave no evidence that he was honestly unaware the bounds of the criminal allegations against him and his convicted associates, the conclusion is drawn that he knew full well (or had means to know) about that aspect of the CBSA’s case. His argument that he was blind to that evidence was unconvincing, the only plausible exception being strategic, wilful blindness. In any case, the CBSA owed him no duty of additional disclosure and Mr. Durkin’s application was thus dismissed.

However, despite this circumstance, the assertive position of the CBSA regarding the disclosure of information is called into question. Specifically, the CBSA’s refusal to do so for no good reason, leading to unnecessary delays and reconsideration applications such as this one. In other cases, this may be a breach of procedural fairness. The CBSA’s rationale behind refusing to disclose the information to Mr. Durkin was that he would be entitled to later disclosure in the context of an admissibility hearing. However, this misses the point, as Mr. Durkin’s submission was for the purpose of possibly avoiding a referral for an admissibility hearing, it is also the only point in the process that a person can call upon the Delegate for leniency notwithstanding the person’s technical inadmissibility. Within an inadmissibility hearing, the only open issue is whether the grounds for establishing inadmissibility have been established. As such, in a situation where disclosure of information is actually needed to support a claim for leniency to the Delegate, the duty of fairness may require it.

SHAZAD ABDUL ET. AL. // IMM-4523-17 // 2019 FC 154 // FEBRUARY 6, 2019

Mr. Abdul was convicted in 2016 for one charge of sexual assault. Upon receiving the Certified Tribunal Record, Mr. Abdul became aware that the Transcript of his sentencing hearing for his 2016 conviction had not been seen by either the CBSA Officer when formulating the CBSA Recommendation, or the Minister’s Delegate when making the Referral Decision. Instead, when assessing the circumstances of Mr. Abdul’s 2016 conviction, the Officer had relied solely on the statement given to the responding Police Officer by of the victim of the offense.  It was not reasonable for the CBSA Officer and the Minister’s Delegate to fail in considering all relevant evidence pertaining to Mr. Abduls 2016 conviction, the Transcript being a significant part of such evidence. If the CBSA Officer intended to proceed solely on the basis of the victim’s statement, there was an obligation to inform Mr. Abdul of this; failure to do so was a breach of Mr. Abduls right to procedural fairness. Moreover, the CBSA Officer may not have intentionally relied on the one version of events provided in the victim’s statement, however, as the Transcript was readily available and obviously relevant to the analysis of the application, it was not reasonable to do so under the duty of fairness. The officer should not have made a recommendation to the Minister’s Delegate without reference to the full evidentiary record of Mr. Abduls 2016 conviction. Subsequently, the Referral Decision of the Minister’s Delegate, based on the flawed CBSA Recommendation, was equally unreasonable and Mr. Abdul’s application was thus allowed.

OGUNDEKO OLUGBENGA BABAFUNMI // IMM-2887-17 // 2019 FC 151 // FEBRUARY 6, 2019

Mr. Babafunmi had been convicted of refugee misrepresentation, giving a false name to enter the country. He submitted an application for Criminal Rehabilitation but was denied. However, Mr. Babafunmi’s application held great standing, with many supporting letters from the community and his church, financial documentation such as bank statements and tax returns, all supporting that he was a good member of society. Mr. Babafunmi had also lived in Canada for over 16 years, 14 of which were in Dartmouth where he had become a Godfather and had opened, maintained and continued two profitable businesses. He had obtained an open work permit in 2015. Finally, Mr. Babafunmi had also expressed genuine remorse for his past actions and regularly reported to the authorities.

Upon review, the Officer seemed to only provide a brief analysis of Mr. Babafunmi’s prior criminality and rehabilitation, based solely on the applicant’s prior conditions and refugee misrepresentations. There was no discussion of Mr. Babafunmi’s likelihood to re-offend, the most important factor in considering a rehabilitation application. Additionally, despite the officer noting that it is in the best interest of the Godchildren to be cared for by the primary caregiver, something which is not disputed, there was a failure to consider the importance of Mr. Babafunmi in their life, a consideration required by Baker and Kanthasamay. Furthermore, in the reply letter from the reviewing officer to Mr. Babafunmi informing him that he is still inadmissible, no reasons for the refusal outcome is given, nor are any details or other facts set out. Consequently, the failure by the officer to explain how the positive and negative factors of the case were balanced, as well as the lack of consideration regarding Mr. Babafunmi’s likelihood of reoffending, make is unclear why the decision to deny him was reasoned. Subsequently, the officer’s conclusion on criminality and rehabilitation fails to meet the Dunsmuir criteria. The application was therefore allowed.

April

QINGNING YANG // IMM-3587-18 // 2019 FC 402 // APRIL 3, 2019

Ms. Yang submitted an application for Canadian permanent residence but was refused on the basis that she failed to mention her previous study and residence in British Columbia. To assist her in completing the application, Ms. Yang had hired the immigration agency, Globenvisa, based in China, as well as retaining an immigration representative in Canada. Upon judicial review, Ms. Yang alleged that her procedural fairness was disrupted due to incompetent representation by the Canadian Representative. The Canadian Representative was notified of this, responding that from March 2017 onwards they had had no direct contact with Ms. Yang, they only had a limited retainer and that they were not consulted about the Agent’s response to the procedural fairness letter, which included fabricated information. Ultimately, the Canadian Representative claimed that they had no knowledge of many or all of the actions taken by the Agent which adversely affected Ms. Yang’s application. However, this does not excuse the conduct of the Canadian Representative, nor does it warrant that their conduct was competent. Despite their limited retainer, the fact remains that the Canadian Representative became Ms. Yang’s authorized representative under section 91 of the IRPA in March 2017, without such, the Agent would not have been able to lawfully act on behalf of Ms. Yang in relation to her application. Therefore, the Canadian Representative must bear responsibility. Nevertheless, Ms. Yang is not considered blameless in the matter; foreign nationals seeking to enter Canada have a duty of candor which requires disclosure of material facts and Ms. Yang had the opportunity to review and sign all documents prior to submission. Still, Ms. Yang’s failures do not diminish the responsibilities of her representatives.

Subsequently, the actions of both the Canadian Representative and the Agent in the Spring of 2018 were considered incompetent. The agent did not admit to Ms. Yang the misinformation mistake and inform her of the Procedural Fairness Letter, instead, attempting to deliberately mislead both Ms. Yang and the IRCC. Though the Canadian Representative may have been unaware of this, it was taken under their authorization and they must be held responsible. Consequently, the actions, or lack thereof, by the Canadian Representative in this matter constitute incompetence. As such, in consideration of the aforementioned points of misconduct and incompetence of the Agent and under the preview of the Canadian Representative, there is a reasonable probability that the original result would have differed if the correct steps had been made. Therefore, it was concluded that Ms. Yang’s procedural rights were breached as a result of incompetent representation by the Canadian Representative and her application was allowed.

ARADA BUNSATHITKUL ET. AL. // IMM-3479-18 // 2019 FC 376

Two half-sibling applicants sought reconsideration for their refusal of a Temporary Residency Visa (TRV). They had applied for the TRV in order to attend a summer camp in the Temagami region of Ontario in the July and August of 2018. Though the dispute regarding the 2018 summer term had passed, the Applicants wished to renew their applications to attend the camp the following year, in the summer of 2019. Importantly, the Applicants were offered a fully paid scholarship to attend the camp. The initial application was refused as the Officer was unsatisfied that the siblings would leave Canada at the end of their stay, arguing that the siblings had insufficient family and economic ties to Thailand to motivate their departure from Canada. There was also doubt over the sibling’s intention of coming to Canada purely to learn English at the camp, seeing as they had not attempted to do so while in Thailand where such opportunities are widely available. Moreover, despite the Officer being satisfied with the evidence that the camp and Mr. Connett (Camp Owner) would be covering the financial costs of the Applicants stay, concerns were expressed surrounding the fact that Mr. Connett had previously sponsored and adopted two children who attended the same camp. Lastly, the officer noted that even though the applicants were minors, they had no travel history and therefore had not demonstrated evidence of compliance with immigration regulations.

The Officer’s decision can be argued as unreasonable from several standpoints. Particularly, it was unreasonable for the officer to want the same type of evidence of establishment in Thailand that might normally be expected of an adult applying for a TRV. Instead the officer should have held greater consideration for the fact that the siblings were children, their family ties were exclusively in Thailand, they were clearly not seeking employment in Canada, they had no history of attempts to immigrate to Canada aside from the 2018 application for a TRV, and that they would be fully financially supported by the camps scholarship. The lack of evidence that the siblings had previously attended programs in order to learn English in Thailand or had attended summer camps, should have not been difficult to assess by the Officer given the circumstance that they were children of a single parent who lived with their grandmother. There is no evidence in the record to suggest that they had the means to afford such opportunities, such was the purpose of the scholarship – it was unreasonable for the Officer to discount this. Moreover, the Officer seemed to disregard that the siblings would be abandoning their mother, other family, friends, and schooling if they sought to remain in Canada, as well as the fact that the siblings travel costs to return to Thailand were guaranteed. With regard to the sibling’s lack of prior travel history, this should have been considered only a neutral point, cohering with their child status. Lastly, though the application had included evidence of the siblings enrolment in school in Lopburi and that their mother had sole right of guardianship over them, the Officer unreasonably discounted this evidence on the grounds that their enrolment could be canceled at any time; this statement is something which would be true of any applicant attending an educational institution in their home country and is thus unreasonable.

However, a point made by the officer of inescapable inference is that Mr. Connett previously adopted who Thai Children and that this was a major reason in the refusal of the current sibling’s application. The prior adoptions in question occurred over a decade earlier and were fully compliant with immigration regulations. There was no evidence in the record of a pattern of similar behaviour that would be sufficient to support the theory, that the sibling’s attendance at the summer camp was for the oblique purpose of facilitating their immigration to Canada. The evidence instead holds strong that the camp, funded by the attendance of fee-paying children, supports scholarships for less privileged children each year. Subsequently, in light of the aforementioned factors, the Officer’s reasoning was found to lack justification, transparency and intelligibility and their decision of refusal was not defensible in the respect of the facts of the law. The applications were allowed for both applicants for the 2019 camp season.

NADINE AL ARIDIET. AL. // IMM-4176-18 // 2019 FC 381 // MARCH 28 ,2019

The Applicants were five family members from Lebanon living in Qatar. The principal applicant, Ms. Al Aridi, sought a study permit and the other four members of her family sought Temporary Residency Visas (TRVs). They were refused due to concerns that Ms. Al Aridi would not pursue her studies in Canada and that the family would not leave Canada once her studies were complete. The Officer also expressed concern that the family sought to access Canada’s social and health care benefits; however, there was difficulty in understanding how these concerns arose directly from the requirements of the IRPA.

The family provided evidence addressing each of the statutory and regulatory requirements necessary for the issue of Ms. Al Aridi’s study permit and the TRVs; including providing proof of acceptance to the Collège La Salle and her Certificat d’acceptation du Québec, as well as a study plan and details of her prior education and employment. Notably, transcripts from Ms. Al Aridi’s education and proof of official language proficiency are not items required by the IRPR. However, the Officer stated Ms. Al Aridi’s course of study to be unreasonable, claiming that it would not improve her academic credentials and her employment prospects. These statements made by the Officer were not supported by any evidence and were speculative. Furthermore, the Officer stated that the families establishment in Lebanon and Qatar was relatively weak, giving no reason for discounting their financial position, ownership of properties in Lebanon, the presence of extended family or the long-term, stable employment of Mr. El Danaf.

The burden rests with the family to establish that they have met the requirements of the IRPA to be issued a Study Permit and TRVs, however, the outcome decision made by the Officer must be based on evidence, something which seems lacking in this case. The Officer outlined nothing more than the disbelief of the families intentions, arguing a general concern with their credibility. Accordingly, the Officer was therefore required to provide the family with an opportunity to address such concerns, failure to do so breached the applicants’ right procedural fairness. The application was allowed.

May

BROCOR CONSTRUCTION LTD. v. ESDC // IMM-3009-18 // 2019 FC 420 // APRIL 8, 2019

Brocor Construction Ltd. was refused a Labour Market Impact Assessment (LMIA) on the grounds that their application requirements for the position of “Heavy Equipment Operator” were too strict. Employment and Social Development Canada (ESDC) argued that Brocor’s mandate of 3-5 years of previous experience was excessively strict compared to industry standards. They concluded that Brocor’s provisions for this position could potentially discourage qualified individuals from applying and that ultimately Brocor was not making sufficient effort to hire Canadian citizens or permanent residents; the ESDC noted that Brocor had rejected 196 applicants because they did not meet the criteria. In defense, Brocor argued that their position requirements were necessary to ensure the hiring of a worker with enough self-sufficiency to perform adequately in this particular position. However, Brocor failed to provide evidence to support this reasoning. The precedents set by Frankie’s Burgers v. Canada and Fredy’s Welding Inc. v. E.S.D were applicable in reaching the decision of this case: that while an employer must be given some latitude in its hiring practices, even within the TFW program, this has its limits and cannot be extended to the point where it becomes inconsistent with the standards set by other regulations.

It was argued that the E.S.D formed the basis of their denial on the fact that Brocer’s LMIA application lacked a transition plan; according to current regulations, a transition plan technically isn’t required and thus this would amount to a fettering of the E.S.D’s decision. However, the judge in this case did not find that the E.S.D drew negative inference from this fact, or that a lack of a transition plan genuinely affected the E.S.D’s denial of the LMIA. Consequently, no fettering of this denial was found, and thus, it cannot be said that the ESDC’s denial of a LMIA to Brocer Construction was unreasonable.

YE JUNG KIM // IMM-5132-17 // 2019 FC 526// APRIL 15, 2019

The applicant was a foreign student applying for a Post-Graduation Work Permit (PGWP) , however, the student’s study permit was set to expire on August 31st, 2017, a date that would be prior to the completion of his degree. A Post-Graduation Work permit (PGWP) may only be granted to those who hold a valid study permit at the time of application and those who have completed the requirements of their studies in Canada. The logical solution to the applicant’s problem would have been to apply for an extension of his study permit and then apply for a PGWP after he had completed his degree. However, the applicant applied for the PGWP in his original circumstances, and was consequently denied. There was no evidence that the applicant was unable to take the above mentioned or similarly alternate course of action. Thus, the denial of the Post-Graduation Work Permit was upheld in this case. 

PERPETUA WAMBUI KARANJA // IMM-1360-18 // 2018 FC 965 // SEPTEMBER 28, 2018

This case dealt with the validity of a foreign marriage and divorce in Canada. Mr. Waicigo was married for the first time in Kenya in 1988 under the customary laws and rite of the Kikuyu nation. His first wife voluntarily abandoned him in 2000 and Mr. Waicigo consequently sought a customary divorce. The elders met and dissolved his marriage on their authority per Kikuyu custom. He was officially given the elders’ blessing and permission from the chief to remarry. When Mr. Waicigo then wished to marry another woman, he was informed that he needed a court-issued divorce certificate. Mr. Waicigo began proceedings for this but when the marriage fell through, he abandoned the process. Later, when Mr. Waicigo and Ms. Karanja, the applicant, wished to marry, Mr. Waicigo sought a new lawyer. This lawyer unfortunately victimized Mr. Waicigo and provided him with a fake divorce document; this fact is beyond question. Ms. Karanja claims the registrar of marriages in Kenya informed her that her fiancée did not need a divorce certificate. According to Kenyan law, a divorce can either be judicial or extra-judicial; it permits the elders to dissolve a marriage extra-judicially if satisfied of willful desertion by a spouse, which was Mr. Waicigo’s situation. A judicial divorce was only required in the case that either spouse contested the extra-judicial marriage, which was not Mr. Waicigo’s situation.  Mr. Waicigo believed he was divorced when he married Ms. Karanja in 2015. These special circumstances – Mr. Waicigo’s victimization and the nuances of Kenyan custom law – permitted Ms. Karanja’s application to be allowed despite the initial shakiness of its legality.