LEXBASE The International Information Network for Canadian Immigration Practitioners Vancouver Montreal 950-1111 Melville Street Lexbase distributes information concerning 425 rue St-Sulpice Vancouver, B.C. Canada V6E 3V6 three areas in the field of immigration: Montreal, Quebec Canada H2Y 2V7 Telephone: (604) 688-6583 Immigration Delivery System Telephone: (514) 288-5252 Facsimile: (604) 689-1327 Immigration Policy and Planning Facsimile: (514) 288-7479 E-Mail: [email protected]Immigration Jurisprudence E-Mail: [email protected]LEXBASE SENDING 2010 - FEBRUARY Over 5500 Canadian immigration practitioners in the public and private sectors are directly linked by the Lexbase network IMMIGRATION POLICY AND OPERATIONS 1. CIC’s INTERNAL OUTLOOK FOR 2010 (1) FEDERAL SKILLED WORKERS : “If intake of C50 FSW is higher than expected in 2010, this could result in a potential increase in inventory of C50 FSW applications. This could also impact the relative processing between C50 and pre-C50 FSW applications which could impact ongoing backlog reduction of Pre-C50 FSW applications in 2010. Projected intake at CIO for FY 09/10 is estimated at 70-75K cases, while currently funded to process 50K cases. As a result, CIO average processing time has increased to over 60 days (anticipated service standard = 10 days).” Mitigation strategies : “Pre-C50 backlog has been reduced by 33% from February 2008 to September 2009.” (2) PROVINCIAL NOMINEES : “Potential risk for the inventory to continue increasing in this category given the increase in application intake over the last several years.” Mitigation strategies : “Immigration Branch engaged in negotiations with P/T regarding nomination levels.” (3) CANADIAN EXPERIENCE CLASS : “If the trend of lower than expected intake in 2009 continues into 2010, CEC admissions will continue to be lower than anticipated.” Mitigation strategies : “Preliminary 2010 Levels Plan under discussion provides for a reduced operational target for 2010.” (4) LIVE-IN CAREGIVERS : “Continuing increases in TR and PR application intake and assignment of priority processing to this category may result in exceeding current workload capabilities resulting in longer processing times and increasing inventory levels.” Mitigation strategies : “Regulatory and Policy changes are currently being explored.” (5) SPOUSES, PARTNERS, CHILDREN AND OTHER : “If current application intake remains stable and lower acceptance rates persist overseas, authorization and visa issuance in 2010 might be lower than levels achieved in 2004-2008.” Mitigation strategies : “Preliminary 2010 Levels Plan under discussion provides for a reduced operational target for 2010.” (6) PARENTS AND GRANDPARENTS : “Parents and Grandparents inventory is currently at 106K (June 2009) which represents the 2 nd largest inventory after FSW. CPC-M operational target for sponsorship processing in 2010 is anticipated to be 12K. If sponsorship intake trends persist, this would lead to a further increase of inventory and network processing times.” Mitigation strategies : “CPC-M investigating imaging FC4 sponsorship applications and coding by mission to enable better alignment between available inventory and processing capacity.” [Lexbase note: compare inventory v. target] (7) TR OVERALL : “DFAIT has initiated discussions with CIC to either double the stock or flow of foreign students over the next 5 to 10 years.” Mitigation strategies : “Explore potential for additional VAC's in areas most affected (such as Mexico).” (8) CITIZENSHIP : “Lack of funding for the implementation of amendments to the Citizenship Act (C-37) will add pressures resulting in increased proof inventories and processing times. Inventories remain high at CPC-S and are now over 131K for Grants, and over 55K for Proofs in 2009/2010.” Mitigation strategies : none.
Transcript
LEXBASE
The International Information Network for Canadian Immigration Practitioners Vancouver Montreal 950-1111 Melville Street Lexbase distributes information concerning 425 rue St-Sulpice
Vancouver, B.C. Canada V6E 3V6 three areas in the field of immigration: Montreal, Quebec Canada H2Y 2V7
Telephone: (604) 688-6583 Immigration Delivery System Telephone: (514) 288-5252
Facsimile: (604) 689-1327 Immigration Policy and Planning Facsimile: (514) 288-7479
(1) FEDERAL SKILLED WORKERS: “If intake of C50 FSW is higher than expected in 2010, this could result in a potential increase in inventory of C50 FSW applications. This could also impact the relative processing between C50 and pre-C50 FSW applications which could impact ongoing backlog reduction of Pre-C50 FSW applications in 2010. Projected intake at CIO for FY 09/10 is estimated at 70-75K cases, while currently funded to process 50K cases. As a result, CIO average processing time has increased to over 60 days (anticipated service standard = 10 days).” Mitigation strategies: “Pre-C50
backlog has been reduced by 33% from February 2008 to September 2009.”
(2) PROVINCIAL NOMINEES: “Potential risk for the inventory to continue increasing in this category given the increase in application intake over the last several years.” Mitigation strategies: “Immigration Branch engaged in negotiations with P/T
regarding nomination levels.”
(3) CANADIAN EXPERIENCE CLASS: “If the trend of lower than expected intake in 2009 continues into 2010, CEC admissions will continue to be lower than anticipated.” Mitigation strategies: “Preliminary 2010 Levels Plan under
discussion provides for a reduced operational target for 2010.”
(4) LIVE-IN CAREGIVERS: “Continuing increases in TR and PR application intake and assignment of priority processing to this category may result in exceeding current workload capabilities resulting in longer processing times and increasing inventory levels.” Mitigation strategies: “Regulatory and Policy changes are currently being explored.”
(5) SPOUSES, PARTNERS, CHILDREN AND OTHER: “If current application intake remains stable and lower acceptance rates persist overseas, authorization and visa issuance in 2010 might be lower than levels achieved in 2004-2008.” Mitigation strategies: “Preliminary 2010 Levels Plan under discussion provides for a reduced operational target for 2010.”
(6) PARENTS AND GRANDPARENTS: “Parents and Grandparents inventory is currently at 106K (June 2009) which represents the 2nd largest inventory after FSW. CPC-M operational target for sponsorship processing in 2010 is anticipated to be 12K. If sponsorship intake trends persist, this would lead to a further increase of inventory and network processing times.” Mitigation strategies: “CPC-M investigating imaging FC4 sponsorship applications and coding by mission to enable better
alignment between available inventory and processing capacity.” [Lexbase note: compare inventory v. target]
(7) TR OVERALL: “DFAIT has initiated discussions with CIC to either double the stock or flow of foreign students over the next 5 to 10 years.” Mitigation strategies: “Explore potential for additional VAC's in areas most affected (such as Mexico).”
(8) CITIZENSHIP: “Lack of funding for the implementation of amendments to the Citizenship Act (C-37) will add pressures resulting in increased proof inventories and processing times. Inventories remain high at CPC-S and are now over 131K for Grants, and over 55K for Proofs in 2009/2010.” Mitigation strategies: none.
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2. THE 2010 “CIC TARGETS”!
We are grateful to Immigration Canada for providing the 2010 Targets under the Access to Information Act. We provide an
analysis of the choices CIC has made, for ‘who gets in, and from where’ in 2010. This is followed by a Lexbase chart setting out
the CIC target numbers for 2010, per category, per mission. Targets may be subject to slight revision during the calendar year.
(1) LEXBASE GLOBAL ANALYSIS OF 2010 “CIC TARGETS” Globally, the federal economic class (composed of skilled workers and business immigrants) will be decreased from 83,680 people in 2009 to 80,055 people in 2010. However, the provincially selected equivalent (including Québec, and all live-in
caregivers) will be increased from 64,460 people to 81,575 people. This is in keeping with a predictable and stated trend over time of increasing provincial selection, and decreasing federal selection, of Canada’s “working people”. The combination of the federal and provincial targets are showing an overall global increase from 148,140 people in 2009 to 161,630 people in 2010. Conclusion: More “working people” for Canada in 2010. Globally, the overseas refugee targets are increased in 2010. The target for overseas refugees is increased from 11,345 people in 2009 to 13,180 people in 2010. Conclusion: More “overseas refugees” for Canada in 2010. Globally, the family class targets are reduced in 2010. The target for parents and grandparents is reduced from 19,034 people in 2009 to 16,200 people in 2010. Other family class is reduced from 46,475 people in 2009 to 39,615 people in 2010. Conclusion: Fewer “family class” for Canada in 2010. SUMMARY: Overall, the Government of Canada intends to INCREASE overseas immigration to Canada, from 224,994 people in 2009 to 231,225 people in 2010. There will be more “working people”, more refugees, and fewer family class.
(2) LEXBASE REGIONAL ANALYSIS OF 2010 “CIC TARGETS”
(i) The Africa and the Middle East Region Targets have been slightly increased in 2010 across all processing posts in Africa and the Middle East (except
Accra). This region benefits most of all in 2010, in terms of increased targets. In this Region, there is a significant increase in 2010 for overseas refugees, and parents/grandparents (except for Damascus, where the target for
parents/grandparents is reduced from 1,265 people in 2009 to 900 people in 2010, and from Tel Aviv, where the
target for parents/grandparents is reduced from 230 people in 2009 to 190 people in 2010). Overall, there will be more provincial selection activity in this region in 2010, and fewer targets for federal selection.
(ii) The Asia/Pacific Region In the Asia/Pacific Region, overall targets are slightly increased for Beijing, Colombo, Hong Kong, Kuala Lumpur,
Manila, and Tokyo. Targets are slightly decreased for Bangkok, Islamabad, New Delhi, Seoul, Singapore, Sydney, and Taipei. In this Region, looking at the combination of the federal and provincial targets are showing an overall significant increase in targets for “working people” from Asia, and a significant decrease in family class targets. The notable exceptions are Seoul, which has a reduced target in all categories except parents/grandparents, and Singapore, which is being provided with an overall decrease in target for 2010 but an increase in overseas refugees and provincially selected people.
(iii) The Europe Region In Europe, there are slight increases and decreases in the targets with two notable exceptions. Vienna reduces its
target from 1,765 people in 2009 to 1,120 people in 2010. And Warsaw increases its target from 1,065 people in 2009 to 2,300 people in 2010, which is allocated mostly to federally-selected “working people” (target increase from 450
people in 2009 to 2,005 people in 2010). In Moscow, the target for parents/grandparents is increased from 115 people in 2009 to 400 people in 2010. In Kiev, the target for parents/grandparents is increased from 242 people in 2009 to 440 people in 2010.
(iv) The Americas Region In the Americas, there are interesting target variations between 2009 and 2010. The big news is Buffalo. The
provincial target is dramatically increased from 8,975 people in 2009 to 17,755 people in 2010. Buffalo’s federal target for the economic class is reduced from 19,255 people in 2009 to 15,400 people in 2010. Santiago’s federal target for the economic class is reduced from 140 people in 2009 to 20 people in 2010. Similarly, Kingston’s federal target for the economic class is reduced from 1,150 people in 2009 to 300 people in 2010. Guatemala’s federal target for the economic class is reduced from 585 people in 2009 to 160 people in 2010. Havana’s target decreases from 635 in 2009 to 100 in 2010. Note that targets for provincially selected people are increased in Guatemala, Havana, and Kingston. Remember, one immigration “case” may have three people (a primary applicant, spouse and child). The “targets” represent the number of “people” (one visa given to each person).
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THE AMERICAS
Federal Economic Class
All Quebec, PN, LCP
FC Priority, DR, HC
Parents
Grandparents Overseas Refugee
Bogota 4,283 to 3,230 735 to 120 1,315 to 1,510 710 to 800 173 to 100 1,350 to 700
Buenos Aires 514 to 360 155 to 105 140 to 130 150 to 75 69 to 50 0 to 0
Buffalo 32,923 to 37,445 19,255 to 15,400 8,975 to 17,755 3,830 to 3,580 863 to 710 0 to 0
Caracas 1,081 to 1,250 455 to 600 500 to 440 80 to 130 46 to 50 0 to 30
Guatemala 1,498 to 1,245 585 to 160 190 to 270 595 to 780 98 to 30 30 to 5
Havana 1,454 to 520 635 to 100 35 to 70 705 to 320 69 to 30 0 to 0
Kingston 2,520 to 1,775 1,150 to 300 10 to 60 1,210 to 1,255 150 to 160 0 to 0
Lima 1,464 to 1,230 170 to 305 620 to 575 605 to 330 69 to 70 0 to 0
Mexico City 1,427 to 1,235 470 to 230 605 to 465 300 to 390 52 to 150 0 to 0
Port of Spain 2,130 to 1,975 710 to 710 30 to 65 1,045 to 860 345 to 340 0 to 0
Port au Prince 2,358 to 2,435 45 to 200 1,305 to 1,020 835 to 1,060 173 to 150 0 to 5
Santiago 278 to 190 140 to 20 35 to 50 80 to 105 23 to 15 0 to 0
Sao Paulo 1,953 to 2,110 1,130 to 810 545 to 1,045 255 to 205 23 to 50 0 to 0
WORLD
224,994 to 231,225
83,680 to 80,055
64,460 to 81,575
46,475 to 39,615
19,034 to 16,200
11,345 to 13,180
3. “CHINA STRATEGY: AN OUTLINE”
Jean Roberge to Anne Arnott - July 31, 2008: “I have been collecting data on the subject but, as you surmised, the everyday
demands have interfered. This is a first draft of an outline. The Ottawa perspective is missing. I have heard, for instance, that
our approach on VACs is not necessarily shared by all. Your comments and views are welcome.”
“THE IRPA PERIL: The coming into force of IRPA has decimated the SW movement from China. Posts like Hong Kong and Beijing are drawing down their inventories with a much lesser number of new cases coming in. (This section must be
accompanied by table and graphs vividly showing the perceived decline.)”
“POPULATION ON THE MARCH: Historically, Chinese emigrants have been a feature of every period, be it of upheaval or growth. As the SW route now appears much more difficult, would-be emigrants have turned to the TFW program, the Students program and the FC1 movement in large numbers. (Here also, Data Warehouse should be tasked to supply table and
graphs supporting this thesis)”
“FRAUD: Snakeheads and fraudulent documents continue to be a feature of this movement. Hence, important antifraud work with all MIO offices will continue. The intent of the individual is to live in Canada. The method is irrelevant: pretending to be a chef or a spouse are only tactics towards the ultimate goal.”
“A VIABLE NETWORK: The existing network of posts, complemented by VACs in most major population centres, is a viable strategy for the future. Expanding the VACs system to cover more Chinese cities, as required, alleviates the need to consider opening costly new missions.”
“THE ROAD AHEAD: Existing posts should be harmonized by increasing the range of their activities. At the same time, we should study whether it would be appropriate to have specialized processing for Chinese permanent residence cases. We would envisage concentrating the FC movement in Hong Kong while the SW cases would be processed in Beijing. Business immigration cases would flow to Hong Kong.”
4. SOCIAL & ECONOMIC OUTCOMES OF SECOND GENERATION YOUNG ADULTS
BRIEFING NOTE TO THE DEPUTY MINISTER: “You have asked for further information on the socioeconomic attainments of second generation young adults. Research findings and surveys conducted on second generation youth suggest that, on average, second generation socioeconomic attainments exceed that of the children of Canadian-born parents.
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“In general, educational attainments of second generation visible minority groups are the highest of all generation groups, and
exceed those of their non-visible-minority counterparts. However, within the second generation visible minority population,
variations exist between groups.”
“Chinese and South Asians are the most likely to have university degrees or higher and to be employed in high skilled
occupations, where a university degree is necessary for the position. Second generation youth of Caribbean and Latin American origin obtain lower levels of education, and are less likely to be employed in highly skilled occupations.”
“Results from the 2003 PISA assessment show that in countries including Canada, Australia, New Zealand and Sweden the second generation population tends to meet or exceed the average level of mathematic and reading proficiency of children of native-born parents. However, in France, Austria, Belgium, Switzerland, Norway and Germany the second generation population tends to perform at levels significantly lower than their peers of native-born parents. In 2005 riots erupted in France's suburbs due to the socioeconomic inequality (e.g. high unemployment rates and poor living conditions) faced by immigrants and their French born children. Many feared that Canada may face similar issues concerning the inter-generational integration of immigrant communities. However, research on second generation outcomes indicates that this may not be the case.”
• “Research findings and surveys conducted in this area indicate that educational attainments and occupational status of the
second generation are either the same or greater than that observed for children of Canadian-born parents. These achievements are often attributed to high educational and labor market aspirations instilled by the foreign-born family of origin.”
• “Educational attainments of visible minority immigrant offspring are the highest of all generation groups, and exceed those
of their non-visible-minority counterparts. However, within the second generation population, variations exist among visible minority groups.
o In general, with the exception of Caribbean and Latin Americans, findings show that second generation youth are
more likely than children of Canadian-born parents to obtain a Bachelor's degree. o Children whose parents were from Africa, China, India, West Asia/Middle East, United Kingdom, Eastern
Europe, or "other Europe" have significantly higher rates of university completion than children of Canadian-born parents.
o Second generation Chinese and South Asian youth are the most likely of all groups to be attending school, to have a university degree and other post university degrees.”
• “Research suggests that parental education plays a key role in the educational success among children of immigrants.
Statistics Canada found that the influence of the father's education matters more for immigrant children from Western country origin groups than for non-Western groups. Mother's education seems to play a greater role in the educational success of children from the United Kingdom and China.”
5. International Region Summary Report
(1) The Permanent Resident Visas: “Hong Kong appears to be headed for another record-setting year as they attempt to meet their largest federal investor target ever of 1,000 decisions (a 25% increase over 2008). While their target appears achievable, two important caveats should be noted: The target is being reached with a significantly decreased approval rate. The 2009 approval rate to date is 48% of decisions made compared with an approval rate of 77% in 2008. Despite this being the largest federal investor target ever achieved by any mission, Hong Kong's inventory of federal investor cases far exceeds this target and is growing at a much faster rate. Hong Kong's current federal investor inventory is 5,500 cases (3,500 of which were received in the past 12 months). Hong Kong's decreased approval rate is due almost entirely to the increased withdrawal/refusal rate of applicants who applied under the Simplified Application Process (SAP) and who do not submit completed applications (final decision rendered at paper screening). The decrease is not due to any change in how the cases are examined by Hong Kong and rates of fraud from verification checks remain stable with no noticeable increase this year over last. Hong Kong estimates that the average federal investor case requires about three times as much effort to complete as do skilled worker, provincial nominee and Quebec cases.”
“The overseas assessment and processing inventory, including FC4 sponsorship applications at the Mississauga Case Processing Centre - As of July 31, 2009 the inventory was 921,095, representing a decrease of 1.4% from the end of 2008. The inventory of Federal Skilled Workers decreased by 6%, to 586,014, from the end of 2008 to July 31, 2009 while the inventory of Federal Investors increased by 40% to 47,208.” “The inventory of Provincial and Territorial Nominees increased by 10% to 29,346 and of Quebec Skilled Workers by 10% to 34,068.”
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(2) Study Permits: “Student intake in Delhi was far higher than any month in recent history.” “Delhi cases finalized to date for university students are up 32% over last year, with all the growth at the M.A and PhD levels. PhD students finalized are up 57%. Delhi approval rates are rising steadily, primarily due to the Student Partners Program with the Association of Canadian Community Colleges and the increase in the high end university component. Approval rates are
now well over 50% for the first time in many years, if not ever. The approval rate for university degree students is 87%. The considerable education loan fraud Delhi has detected is a negative feature of Study Permit applications there. However Delhi is communicating to SPP partners about who is facilitating it. By detecting this fraud Delhi will reduce the number of Study Permit holders who are actually in Canada for purposes other than study or who are lacking adequate funding support.”
(3) Temporary Resident Visas: “Using Delhi's program as an example, several months ago Beijing and Shanghai began steps to implement a Business Express Program that would offer select multinational companies priority processing of temporary resident visas at Visa Application Centres (VACs), for staff travelling to Canada for business. In addition to benefitting from quicker processing, companies would submit applications with fewer supporting documents than is normally required. Surprisingly, Beijing and Shanghai have not found any takers for this program and consequently have put it on hold. Working in coordination with the Mission Trade Section, Beijing and Shanghai identified a list of eight Canadian and multinational companies who regularly send business visitors to Canada that might benefit from the proposed program and for whom there were no program integrity issues. Establishing contact with an appropriate person in each company proved to be a difficult task. Once Beijing and Shanghai managed to contact the companies concerned, not one asked to register in the program. The failure to generate interest may have been due to the difficulty in identifying the appropriate contact. However, a more likely explanation is that companies are quite satisfied with the current level of service. The processing standard is five to eight working days within the mission not including VAC submission and return time. However the vast majority of cases are actually processed in three working days, including VAC time, if submitted at the Beijing or Shanghai VAC and five days when submitted in Guangzhou and Chongqing. Although it would have been easier for companies to prepare applications for submission with reduced documentary requirements, processing under the program would have been shortened by only one day, the maximum possible. Companies would have been required to take the additional step of sending an email before the applications were submitted. Should any companies on the list express an interest in the program in the future, Beijing and Shanghai remain open to implementation.”
6. Internal Policy Discussions
(1) EXCESSIVE DEMAND ON HEALTH SERVICES IM-2009-384 JULY 20, 2009 Robin Oprean Designated Immigration Officer Buffalo - “Can an applicant who has been assessed M05 for excessive
demand on health services request that a Declaration of Ability and Intent be considered? In this case, the medical officer says ‘I am of the opinion that the new material does not modify the current assessment of medical inadmissibility…’ but then goes on to present additional information for us to consider and suggests that admissibility is dependent on these factors. Please advise.”
Roseanne Da-Costa: “Given the nature and treatment of some medical conditions, such as HIV, the assessment of excessive
demand is based exclusively on drug costs. Consequently, we cannot dismiss the submissions of the applicant with respect to ability and intent to cover the costs of drugs needed to treat the health condition. Since the MOF's assessment of the applicant's medical condition was unchanged by the submissions of the applicant, the issue is whether the applicant has satisfied you, via the submissions of his counsel with respect to ability and intent, that treatment for the medical condition will not cause excessive demand on health services. This will require your review of the applicant's current financial status - current income and prospective/expected income for the period assessed by the medical officer (5 or 10 years). In this case, the without proof of an extension, you would be looking at coverage through the Trillium Drug Program. You need to be satisfied that the applicant has both the ability and intent to purchase private medical insurance and to pay both for the insurance and the deductible ($9,341). Any information provided by the applicant with respect to how he currently handles his drug costs could assist you with your determination.”
(2) NO LOCAL KNOWLEDGE TO APPLY TO THE DOCUMENTS IM-2009-329 JUNE 18, 2009
Kai Kristian Liebelt, Designated Immigration Officer, Berlin – “What should be done if the eligibility-relevant employment is well documented but our office is not familiar with the documents provided (i.e. employment related documents for the
position of a professor in Iraq). Should we (a) Close the file at the PPS stage and transfer the file to another office for program integrity purposes? If so, what CAIPS code should be used at the PPS stage as "4" is to be used by Sydney only? (b) Make a positive eligibility decision at the PPS stage and then transfer the file to another office?”
Jennifer Gelinas Program Advisor-Permanent Resident Program Delivery - “where there is no local knowledge to apply to
the documents, I suggest using online search engines to at least corroborate the university where the applicant states he
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worked exists. I would also rely on experience in reviewing SW files/documentation - level of detail presented, coherence of the work history, comparison to NOC description, etc. While local knowledge is important and familiarity with local documents certainly assists in the review, it is not the only or most critical element in the review of the file. I do not think there is a need to transfer the file at the final determination of eligibility stage. This option is still available during processing if absolutely necessary, but I recommend processing the case in Berlin. You could seek advice from Damascus, if that is where the Iraqi expertise is, but this does not seem like a case in which a file transfer is really necessary.”
(3) REQUESTS FOR EXTENSIONS OF 120 DAY DEADLINE IM-2009-328 JUNE 24, 2009 Jennifer Gelinas, Program Advisor - Permanent Resident Program Delivery - “Good afternoon Burke, Thank you for your
comments and questions.” “Unrepresented applicants are not aware of the possibility of extension and [deleted] may well just give up once the 120 day deadline is reached and they don’t have a complete application as per our checklist. Represented applicants will know extensions are possible, will request them and will get them in the same situations as the unrepresented would have, had they known they had the option.” “Requests for extensions must be considered. Nevertheless, the applicant
guide is quite clear that applicants unprepared to meet the deadline should not apply. The deadline is reiterated in the letter
from the CIO to applicants. Applicants have been given notice from the outset, as well as a reminder, that they have 120 days
to submit their application. Representatives should pay heed to this notice as well. Extensions should not be considered an
option, but rather an exception.” “Our collective goal should be to [deleted] enforce the 120 day deadline. The legal
authority for requiring applicants to produce evidence and documents is in subsection A16(1). Although the subsection does
not mention a specific time frame, notices of this requirement routinely contain deadlines.” “Here in Buffalo (and we
suspect, at most missions once they start again to receive full applications rather than SAPs) approximately 30% of applications are returned as non-R10 compliant (gaps in addresses/employment and failure to address organization memberships being the most common reason). No file is created and no record is kept of these returned applications. This instruction will have workload implications across the network. Now we will have to create files for everybody, request the missing information, make notes in the file, manage BFs, place attachments on file, and so on.” “All files are created at the
CIO. After a positive preliminary determination of eligibility, files are transferred to visa offices. The opportunity to save
work by not creating files for incomplete applications has already passed. Please note as well that applicants who are
selected must undergo medical exams. We will be contacting them at least once before requesting passports, RPRF, etc. This
will be an opportunity to request any evidence or documents that are missing and required to determine admissibility.” “The application guide says that applicants should be prepared to submit all of the documentation, including police certificates, within 120 days. However, it also says that the police certificates must not been more than three months before the submission of the application. Our applicants are dealing with police authorities all over the world who have varying processing times. The typical applicant is going to have a very difficult time trying to coordinate the timing of the application for police certificates getting translations when necessary and the submission of the application to the visa office within the 120 day deadline but with police certificates that are not more than 3 months old!” “Admittedly this could be a problem for
some applicants, particularly at your office. Once again though, the guide puts applicants on notice before they apply that
they must be prepared to submit police certificates. Applicants can apply for police certificates before they submit their
applications to the CIO. We will amend the guide to this effect. This will make it easier for those who are referred to visa
offices to meet the 120 day deadline. They will have more than 120 days to apply for and receive all of the required
certificates. This will mean though, that some certificates will have been issued more than three months prior to receipt at the
visa office. Although the certificate may be up to 7 months old, assuming the applicant requires the entire 120 day period to
submit everything to the visa office, it would still be less than 12 months old, which is acceptable as a rule of thumb for visa
issuance. We will also amend the guide to suggest applicants who require multiple certificates make certain they will be able
to produce them as required within the 120 day deadline.”
(4) DATE FOR APPLICATION OF VISA OFFICE-SPECIFIC REQUIREMENTS IM-2009-367 JULY 22, 2009 Kevin Ullrich, Analyst - “What I would like to determine is whether or not the client was, in fact, required to provide proof of her relative's residency when she submitted her application to CIC-New Delhi. It appears that proof of residency became a requirement in April 2009, when CIC-New Delhi implemented a revised IMM 7029E.” “The client had submitted her initial application to CIO-Sydney on March 9, 2009.” “Which of these dates is used to determine which visa office-specific requirements apply to a client's application?”
Chris Raymond Senior Program Advisor, Case Management Branch, CIC - “the applicant must provide proof of her
relative's residency in Canada when she submits her application to the visa office in New Delhi. This information is not required by CIO Sydney, and therefore would not have been provided at the time the application was initially forwarded. You can obtain further details on this process in Operational Bulletin #120. According to this OB, the CIO receives all FSW applications, and then does one of two things: • Determines an application is ineligible according to the MI for processing,
informs the applicant to this effect, refunds the fee(s) and closes the file; OR • Informs the applicant a visa officer will make a
final determination of eligibility for processing on the basis of the information and documents the applicant submits along
with a complete application to the visa office within a 120 day deadline, and transfers the electronic file to the visa office for
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final determination of eligibility for processing against the MI. As noted in bullet two, the complete application that is submitted to the visa office is separate from the information and documents the applicant submits to the CIO. The OB also notes that applicants are expected to submit a complete application including supporting documents identified in the visa office specific kit. Therefore, the applicant must meet all visa requirements on the date their application is received at the visa office.”
(5) OB 136 AND IMPLICATIONS FOR PERSONS ABLE TO MEET OB 126 IM-2009-401 JULY 24, 2009 Nadine Gomm, Regional Program Advisor - “The paragraph below is causing some concern. It seems to indicate that applicants with current APRs in Spousal category (which can be converted to H&C without new application) MUST make an additional H&C application within 6 months in order to avoid removal.” “This, if true, will increase H&C inventories significantly - not in our region so much; but in others certainly.”
Melissa Gomes - “We realize that it may result in two applications, but after our discussion with Immigration Branch, the
policy and resulting stay is only to be applied to H&C applicants. I'm not sure how many clients from those countries currently have pending spousal APRs. I would speculate that it's not a huge number, but I could be wrong. For guidance on that particular scenario, if the application has been converted to an H&C within the relevant time frame based on individual circumstances or the client has applied for H&C on their own and meet the eligibility criteria then they would be considered for a deferral of removal. Otherwise they would fall under the stay provision that already exists for these cases.”
(6) CLARIFICATION RESTORATION UNDER OP 12 SECTION 5.24 IM-2009-395 JULY 24, 2009 Lynn Mongeon Program Specialist, Vegreville – “Clarification please. Restoration under OP 12 section 5.24 it states: The
student must still be in possession of a valid study permit at the time of application (order to apply for post grad work
permit). Can you please clarify based on the OB130 whether or not we can restore status to a student and issue a post grad work permit without restoring back to a study permit as they are not in possession of a study permit then issue a work permit.”
Brendan Rafferty, Senior Policy Program Advisor - CIC HQ “Based on the operational guidance outlined in OB130, an
international student could apply for restoration of their status - in this case as a student - and then, as a result apply for a post-grad work permit as per OP12, Section 5.24 where they student needs to be in valid study permit. OB130 clearly states in the first of the three scenarios outlined that ‘a foreign student who is still in status can apply in Canada for a work permit
under certain conditions. By inference, the foreign student can apply for a work permit when restoring status.’ In this case they would be eligible to apply for their post-grad work permit.”
(7) C-50 ELIGIBILITY IN BERLIN IM-2009-394 JULY 24, 2009 Jean-Pierre Cliché, Counsellor (Immigration) Canadian Embassy Berlin, Germany - “The instructions and also OP 120
are vague when determining what steps can/can not be taken before making a final finding of eligibility. While there should be a "robust" review, there appear to be limits. Should we refrain from interviewing applicants and requesting extensive information from prospective employers at the eligibility stage even if the consultant has a history of submitting non-genuine AEOs or the AEOs fit a certain pattern? From the information gathered during our interviews there is not sufficient room for an A40 refusal as the applicants themselves appear to be hoping that the job is waiting for them in Canada. In view of the fact that most of these applications meet the Skilled Worker pass mark and as this could be an organised attempt to circumvent the ministerial instruction your guidance is appreciated. These questionable AEO cases from one consultant make up about 30% of all new C50 files received in Berlin! Please also advise whether it is possible to refer to Section 82(2) in connection with a finding of eligibility simply to clarify the term "Arranged Employment" (which is not defined in the Ministerial Instructions).”
William Hawke, Manager - PR Unit/Permanent Resident and in-Canada Protection, Program Delivery - “To answer your last question first, the eligibility criteria of the Ministerial Instructions (MI) are set out on page four of the applicant guide. With respect to arranged employment offers (SW2), reference is made to the arranged employment factor. We are very forthright with applicants that arranged employment offer eligibility under the MI, is equivalent to eligibility for points pursuant to the arranged employment factor.” “guidance is not the law, nor should it hamstring visa officers in the enforcement of the law. There may be instances when visa officers are justified in departing from the guidance in OB 120 on how to determine the requirements of the MI are met. If and when they do though, they must be very careful to make it clear in their CAIPS notes, as well as all communications with the applicant or the applicant's representative, that they are assessing eligibility pursuant to the MI and not the minimal requirements or the selection criteria of the IRPR. They should be especially careful not to re-determine eligibility, in the course of determining if applicants meet minimal requirements or, can be awarded points for experience or arranged employment. Presumably, when a determination of eligibility is made a visa officer was satisfied there was sufficient evidence an applicant was eligible. Admittedly, the instructions in OB 120 give visa officers more latitude to test the credibility of evidence once processing begins. It could turn out that when tested, the evidence does not support a finding that the applicant meets the minimal requirements for the MI listed occupation or, can be
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awarded points for experience in that occupation or for arranged employment. Still, this will not necessarily mean there was an error in determining eligibility. In the absence of clear evidence of an error, the argument might be made that the eligibility decision is functus. So, with the above caveats, the AEO letter may be a justifiable departure from the guidance in OB 120. It is also possible that through the use of the letter, you may develop the expertise to discern between genuine and non-genuine arranged employment offers on the basis of a paper review of the evidence submitted. Ideally, departures from the guidance in OB 120 should be the exception and not the norm. To this end, visa officers should not hesitate to share evidence of patterns of fraud with the Centralized Intake Office (CIO). Eventually, if the CIO is alerted to these patterns, verification procedures can be developed and introduced to better screen for fraud before applications are referred to a visa office. In addition, evidence that suggests organized fraud on the part of client representatives, should be sent to Fraud
Deterrence and Verification via the OMC mailbox.”
(8) QUESTION REGARDING RESIDENCY DETERMINATION IM-2009-309 JULY 20, 2009 Chris Raymond, Senior Program Advisor – “it must be recognized that when it is determined that a PR has failed to meet
the residency obligation within Canada, they still remain a PR as per A46. As per paragraph 46(1)(c), a permanent resident will lose their status when a removal order made against them comes into force. Therefore, the officer can write the 44 report for failing to meet the residency obligation, and a removal order may subsequently be issued, but until the appeal period expires or a decision is rendered on an appeal, the removal order will not come into force and the permanent resident will still have their status. As ENF 23, section 9 notes, the officer cannot seize the person's documents such as the record of landing, as the person has a right to appeal the removal order and, until final determination of status, they remain a permanent resident and lawful owner of said documents. Based on the aforementioned information, I believe that CIC must issue a PR card to any permanent resident who has not lost their status. As per subsection 31(1) of the IRPA, a permanent resident shall be provided with a document indicating their status. The existence of a 44 report or removal order does not prevent a permanent resident from obtaining a PR card. Subsection 54(2) of the IRPR confirms that in cases where a permanent resident is found to not meet the residency obligation, is the subject of a 44 report, or is the subject of a removal order, the PR card will be valid for one year. Until such time as the permanent resident has lost that status, they are entitled to a PR card (and as they
are the subject of a 44 report or removal order, the PR card will only be valid for one year). Should they lose their PR status while the one year card is still valid, subsection 53(2) of the IRPR requires a permanent resident to return their PR card to CIC upon request.”
“For inadmissibilities such as misrepresentation or criminality, the permanent resident does not lose their status until the
removal order has come into force. Therefore, at the time a 44 report is written, or a removal order is issued where there is a right of appeal, the permanent resident retains their PR status and shall be issued a PR card. As per subsection 54(2) of the IRPR, if a 44 report has been written or a removal order has been issued, the PR card will only be valid for one year.”
(9) INADMISSIBILITY QUESTION - NONACCOMPANYING FAMILY MEMBER IM-2009-297 MAY 29, 2009 Joel Francisco Immigration Section Consulate - Los Angeles - “Given that custody in this case is not an issue because the
child is already an adult and that there is no court order or written agreement or by operation of law; giving the primary applicant, or an accompanying family member of the primary applicant the power to act on behalf of the non-accompanying child, I am of the opinion that the child's inadmissibility would not render the primary applicant inadmissible to Canada.”
William Hawke Manager - PR Unit, Permanent Resident and in-Canada Protection, Program Delivery - “although this is not a definitive answer, …we could see how in the situation you described, an argument could be made that the inadmissible non-accompanying family member does not make the principal applicant inadmissible. We also considered the risks of accepting such an argument. We noted that if the non-accompanying family member is subsequently sponsored, he would be inadmissible as an applicant in his own right. Ideally, since this has come up more than once, we would like to provide guidance in the OP manual. Until we do, I believe you are bound to examine each case on its merits. If the principal applicant can make a persuasive case that the prescribed circumstances set out in section R23 are not met, then you could conclude paragraph A40(1)(a) does not apply. In that case the principal applicant would not be inadmissible.” “In the case of a non-excessive demand exempt principal applicant, I would closely examine the evidence that the non-accompanying family member was not in fact captured by subparagraph R23(b)(iii). I would want to be satisfied that even if the dependent child was too old to be subject to any custody arrangements, or that in spite of those arrangements, the principal applicant was not empowered to act on behalf of that child by operation of law. Parents may in fact have some legal responsibilities towards children or rights over them regardless of their age and who has custody, due to a medical condition.”
7. Internal CIC Guidelines
(1) Operational Bulletin 132 – July 7, 2009: 2009 World Skills Competition, Calgary - Section 186(h) (IRPR) applies to the following team members: approximately 883 participants will take part in the competition. They are 22 years of age or
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younger and in most cases they are students at technical schools or colleges; approximately 839 experts and judges will assist during the competition; and, Technical Translators: (2 pages)
(2) Operational Bulletin 127 – June 25, 2009: 2010 Olympic/Paralympic Winter Games - Those who are accredited by the
Vancouver Organizing Committee will receive a unique Olympic/Paralympic Identity and Accreditation Card which will provide access to venues and sites. In addition, for participants from visa-required countries, the OIAC/PIAC will serve as an entry document into Canada: (12 pages)
(3) Operational Bulletin 121 – June 30, 2009: Cost recovery procedures (payments and refunds) at selected missions - There are FSW applicants from countries where a certified Canadian bank instrument is impossible or difficult to obtain. The Finance Branch is developing a credit card payment option. The implementation of this option will still leave some applicants unable to pay in Canadian currency at the CIO in Sydney. The procedures outlined will be an interim solution for applicants who are able to pay by credit card and an ongoing solution for applicants who cannot pay even with the credit card option: (31 pages)
(4) Operational Bulletin 117 – June 1, 2009: Special Events – Visa Fee Exemptions: June-July 2009 - information on fee-exempt events taking place in June and July 2009: (4 pages)
(5) Operational Bulletin 115 – May 27, 2009: Manitoba Worker Recruitment and Protection Act - WRAPA strictly prohibits charging fees to workers as part of a recruitment process and also introduces strengthened enforcement provisions to ensure employers and third-party recruiters comply with its requirements: (6 pages)
(6) Operational Bulletin 109 – June 16, 2009: Directives on Investigations of Sponsors for Misrepresentation for Possible Marriages of Convenience - national guidelines for the investigation of marriage of convenience cases where the sponsor is someone who was previously sponsored as a spouse or partner, or who has sponsored more than one spouse or partner: (5 pages)
IMMIGRATION JURISPRUDENCE (during previous 30 days) FEDERAL COURT
I. CITIZENSHIP ISSUES
“Verification” not necessarily a language test-Significant diabetic retinopathy, condition which pre-existed citizenship hearing 1. SHAHIDA NAVID BHATTI 2010 FC 25 T-1053-09 JANUARY 8, 2010 MANDAMIN J.: […] She comes to this Court unrepresented and is not fluent in English. […] Ms. Bhatti suffers from high blood pressure and diabetes. She is also at risk of going blind and suffers from poor eyesight. These conditions require different treatments which she finds arduous and painful. […] Ms. Bhatti’s story as provided in her submissions, the questions posed to her and her responses, her health ailments and their bearing on her vision, her painful eyesight treatments, reading, the citizenship granted to all her family members, are not in her affidavit. The additional information submitted by her daughter similarly is not presented by affidavit. The Minister is correct in asserting none of this is admissible evidence before the Court. […] The Citizenship Judge stated he found no evidence to justify making a recommendation to the Minister to waive the language or knowledge requirements on the grounds of compassion or recommend citizenship to alleviate special and unusual hardship. There is simply not enough evidence to judge the reasonableness of the Citizenship Judge’s decision. […]
A review of the Record discloses that the Citizenship Officer who reviewed the file found Ms. Bhatti’s knowledge of English to be “satisfactory”. The Citizenship Judge is within his right to administer an oral test after the Applicant had passed the written test of her knowledge of an official language, but his reasons must explain how he found Ms. Bhatti’s language inadequate. The Citizenship Judge stated Ms. Bhatti could not “verify” information on her application. Verification is not necessarily a language test since to verify is to establish truth or validity of something: Canadian Oxford Dictionary. The criteria established by section 14 of the Regulations for determining a person has an adequate knowledge of one of the official languages are that a person comprehends basic spoken statements and questions and can answer orally or in writing basic information. This criteria does not require verification of information. In addition, the Citizenship Judge did not explain what “simple questions” were not answered by Ms. Bhatti. Without more, I have no way to reconcile the contradiction between the evidence on Record showing Ms. Bhatti’s language is satisfactory and the Citizenship Judge’s finding it isn’t. As for the results of the Knowledge Test, the Record is of no assistance since the Minister exercised his rights under rule 318(2) of the Federal Court Rules, objecting to the release of the questions and answers with regard to the test of Ms. Bhatti’s knowledge of Canada. The Respondent argues releasing these questions would undermine the secrecy of the test since others could memorize the question sheet. I understand the Minister’s concern, but without the test before me I cannot assess a Citizenship Judge’s assertions concerning the Applicant’s results.
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Finally, Ms. Bhatti submitted copies of medical reports as exhibits to her affidavit. […][A]n ophthalmic medical doctor reports [she] has significant diabetic retinopathy, a condition which pre-existed the citizenship hearing date […]. While this evidence would not have been before the Citizenship Judge, I am satisfied Ms. Bhatti suffered from this condition prior to the citizenship hearing. Ms. Bhatti’s impaired sight was demonstrated by the inordinately large print font Ms. Bhatti required to read her submissions in Court; a copy of which has been filed. While the Citizenship Judge found there was no reason presented at the hearing to justify recommending the Minister waive the language or knowledge requirements, I accept Ms. Bhatti’s medical condition is serious. Her vision problems would impede her preparation for citizenship. This was not in evidence at the citizenship hearing but should be since these problems make it difficult for her to study and perform any written form of a knowledge test. Ms. Bhatti’s medical conditions, particularly with respect to her problems with her eyesight, are factors that should be considered in the course of a citizenship hearing. […] The matter is to be remitted to another Citizenship Judge with a directions to consider recommending the Minister waive the knowledge test on compassionate grounds pursuant to subsection 5(3) of the Citizenship Act or recommend citizenship to alleviate special and unusual hardship pursuant to subsection 5(4) […]. [Appeal allowed]
COUNSEL: SELF-REPRESENTED TORONTO Indicia on the record of an existing and continuing connection to the U.S.A. 2. FANG WANG [RESPONDENT] 2009 FC 1290 T-1871-08 DECEMBER 18, 2009 MANDAMIN J.: […] The Minister submitted an affidavit containing a copy of an earlier citizenship application by Ms. Wang. That earlier application was not part of the Record before the Citizenship Judge. The only reference to Ms. Wang’s prior application in the Record was in the July 23, 2008 Notice to the Citizenship Judge which contained a brief statement the previous application failed because Ms. Wang did not provide satisfactory documentation to explain lengthy absences from Canada. […]
In M.C.I. v. Hung, [1998] F.C.J. No. 1927 […], “Under the new Rules, citizenship appeals are no longer trials de novo, but instead
are now to proceed by way of application based on the record before the Citizenship Judge: no longer may new evidence be
submitted before this Court”. Accordingly, I will not consider the new evidence introduced by Minister’s affiant concerning Ms. Wang’s prior citizenship application. […]
The Minister contends in addition to missing documentation, there were indicia on the record of an existing and continuing connection to the U.S.A. Ms. Wang’s marriage licence shows she was a resident of Long Beach, California in 2001 and her current Chinese passport was issued by the Chinese Consulate in Los Angeles, California in 2007. I note, however, the date of marriage and the date of issuance of the passport are outside the residency period at issue. Ms. Wang submits the Citizenship Judge had the benefit of the information provided at the hearing as set out in her affidavit. She argues, based on M.C.I. v. Lau, [1999] F.C.J. No. 290 (T.D.), a judge who benefits from viva voce evidence has likely filled the gaps in the record. […]
There is no allegation of impropriety against the Citizenship Judge in this case. However, it is the Minister’s role to protect the right of citizenship and the Minister should be afforded the simple tool of reasons to fulfill that role. […] The only recourse the Minister has to challenge a Citizenship Judge’s decision is appeal to this Court. In order to decide whether an appeal should or should not be initiated, the Minister needs to know the reason for the Citizenship Judge’s determination on issues arising from the application. […]
The Citizenship Judge did not outline the information he considered in regards Ms. Wang’s residency. He neither made reference to the nature of information received nor did he refer to documents he reviewed at the hearing. The Citizenship Judge simply stated a conclusion to the effect that after reviewing documents and information he was satisfied Ms. Wang meets the residence criteria. The Citizenship Judge has a statutory duty under section 14(2) of the Act to provide reasons. He did not comply with his duty and his decision therefore cannot stand. […] The Minister seeks costs of this appeal. […] Even though I find for the Minister, he shares some of the responsibility because the form he provides to Citizenship Judges invites abbreviated reasons. [Minister’s appeal allowed]. COUNSEL FOR RESPONDENT: MATTHEW JEFFERY TORONTO Lord Denning-the essence of the balance of probabilities-the Request, an important step, is missing from the official record 3. THI NHU NGUYEN 2009 FC 1244 T-628-09 DECEMBER 4, 2009 MANDAMIN J.: […] She moved to Canada in 1993 and she applied for citizenship on July 12, 2007. […][T]he Citizenship Judge requested documentary evidence supporting the claim she never left Canada. Here the stories diverge. Ms. Nguyen says the Citizenship Judge asked to see her passport and her record of landing. She says she rushed home to retrieve the documents, returned that same day, and met again with the Citizenship Judge to show him the requested documents. She says he examined them and she believed he was satisfied with her evidence. He did not make any copies nor did she leave copies of the documents with the citizenship registry. […][T]he Citizenship Judge recorded that Ms. Nguyen had not complied with the documentation request and he was thus unable to determine her residency in Canada. For that reason he denied Ms. Nguyen’s application for citizenship. […]
The Respondent submits the Appellant’s case lacks an “air of reality”. To establish this, the Minister asks this Court to assume what are the day to day practices, physical layouts, protocols and procedures of its offices. There is no evidence to support any finding as to
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what procedures a Citizenship Judge uses to discharge his duties under the Act and nothing to tell the Court how efficient the administrative procedures are. In the absence of such evidence I do not consider Ms. Nguyen’s account lacks an “air of reality”.
The Respondent also argues the document handling procedures of the citizenship registry are to be presumed to be complete and regular. The Respondent refers to the affidavit of Ms. Ann Lai, Manager of the Citizenship CIC office in Scarborough which states that the Global Case Management System, CIC’s operating system used for processing citizenship applications, state the documents requested had not been received […].
Standard of Proof: […] Ms. Nguyen bears the burden of proving her case on the balance of probabilities. […] She was not cross-examined on her affidavit and it stands unchallenged. The Respondent submits the Record and the Citizenship Judge’s decision establish the requested documents were not provided.
When considering the essence of the balance of probabilities, Lord Denning wrote in Miller v. Minister of Pension, [1947] 2 All E.R. 372, at 374 (K.B.): “If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged,
but if the probabilities are equal, than it is not.”
At this point the two factual positions are equal and opposite. If so, Ms. Nguyen’s appeal would fail. In my view, the balance is changed by the inclusion of the Request for Supporting Documentation as part of the Record. The Request has the effect of enhancing Ms. Nguyen’s credibility and undermining the Respondent’s position. The Request required Ms. Nguyen to provide a copy of her landing record and landing passport with all pages. Importantly, the Request corresponds to Ms. Nguyen’s account of events in regards to time and specific documents requested. The Request was the same day as that of the citizenship hearing. It specified Landing Passport with “all pages” and Landing Record. Ms. Nguyen submits the significance of the request for her passport is that even if a visit to another country might not be noted on a passport, return to Canada would be recorded in the passport. The passport with all its pages blank therefore could be a document that may confirm her assertion of zero absences from Canada. The fact that the Request, an important step in the documentary process, is missing from the official record is indicative that the Record is not always complete and regular. The Request should have been on the Record but it was not. I find Ms. Nguyen has proven her version of events on the civil standard of a balance of probabilities. She retrieved her documents and returned to show them to the Citizenship Judge. The error was that she did not file copies; she thought presenting the documents for viewing was sufficient. Nevertheless she complied with the Request in a substantive manner. Her appeal therefore succeeds.
I turn now to the question of a remedy. […] The Respondent submits the Court may not grant citizenship for several reasons. First, the Federal Courts jurisdiction to issue final remedies […] is mentioned in sections 18(1) and 18.3(3) of the Federal Court Act […] and these remedies do not include the granting of citizenship. Second, the review of decisions of Citizenship Judges by way of an “appeal” does not change the remedies the Federal Court may grant under section 18.1 FCA. Citizenship appeals are not trials de
novo. Third, the Federal Court’s equitable jurisdiction may not be used to expand the remedies granted under the FCA. Notwithstanding the Respondent’s well reasoned argument, the Federal Court’s jurisdiction for hearing appeals, emanates from section 14(5) of the Citizenship Act. Further, while section 21 of the Federal Courts Act confers on the Federal Court exclusive jurisdiction, it does not alter the source or nature of the right of appeal under the Citizenship Act. In M.C.I. v. Chiu, [1999] F.C.J. No. 896 Justice Pinard wrote in the context of an appeal by the Minister: … an appeal under subsection 14(5) of the Citizenship Act is no longer an appeal de novo, but it remains an appeal which, by virtue of the Rules, is dealt with procedurally the same way an
application for judicial review is dealt with. Such an appeal, therefore, is not an application for judicial review within the meaning of section 18.1 of the Federal Court Act. Accordingly, this Court is not limited by subsection 18.1(3) of that Act and may simply quash a decision of a Citizenship Judge if, like in the present case, it does not meet the applicable test of correctness.
An appeal is a review of a decision by a superior Court to test the soundness of the decision and it may involve reconsideration of the decision in question. […] Tovbin makes it clear citizenship appeals exclude trials de novo. However, the FCA does not amend the Citizenship Act to convert an appeal into a judicial review. Remedies in a citizenship appeal may involve dismissing the appeal, giving the award that should have been given or ordering a new hearing. In appropriate circumstances, a grant of citizenship may result of the Federal Court appeal hearing.
Nevertheless, the Respondent’s arguments in respect of remedies have merit. The Citizenship Court is not as formal as a Court. In citizenship cases the highest appellate Court is the Federal Court. Upon a decision of the highest appellate Court res judicata would normally mean the end of an Applicant’s options. In contrast, Applicants for citizenship are free to re-apply anytime.
The Citizenship hearing is a less formal process as discussed in M.C.I. v. Mahmoud, 2009 FC 57 at para. 4 and as evidenced by Ms. Nguyen’s affidavit. The documentation is assessed by a Citizenship Judge in light of the outcome of the citizenship hearing and his or her specialized knowledge. The record before the Federal Court does not constitute the entire record since the hearing itself is more in the nature of an interview than a Court hearing.
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The quality of the evidence on the Record necessarily impacts on the remedies available. Ms. Nguyen insists the passport she provided covers the period 1999 to 2004. There is no evidence concerning Immigration procedure recording re-entry dates into Canada in passports. Nor is there any admissible evidence concerning her assertion that she did not have a valid Vietnamese passport between years 2004 to 2009 and therefore could not travel out of Canada during that period. The Citizenship Judge, with his specialized knowledge and benefit of the hearing may assess the evidence before him. I am not in a position to do so. Conclusion: Since the Notice to the Minister records that Ms. Nguyen satisfied all the requirements for citizenship except documentation establishing the required residency, I consider the appropriate remedy is to set aside the Citizenship Judge’s decision denying citizenship and refer the matter back to the same Citizenship Judge with respect to the residency question alone. [Appeal allowed]
COUNSEL: STEVEN CUONG NGUYEN TORONTO
II. IMMIGRATION ISSUES Extension requested to provide IELTS-“request was refused in a fit of pique”-MA in England from English language university 1. SALEEM AHMAD KHAN 2009 FC 1312 IMM-2604-09 DECEMBER 23, 2009 HARRINGTON J.: […] Mr. Khan was strongly advised to provide (IELTS) test results. Mr. Khan, a Pakistani citizen, but then based in Dubai, was unable to secure a seat for the exam until February 2009. By letter through his immigration consultant dated January 27, 2009, but only received by the Visa Officer February 11, 2009, he requested a 60-day extension. […] At the time the Visa Officer received the request, […] he had already made up his mind to dismiss the application on the grounds that Mr. Khan did not have the required 67 points. Without answering the request for an extension of time, he denied Mr. Khan’s application. […] Administrative efficiency is important, and necessary. […] The greater issue, however, is that of justice between the parties. The Visa Officer’s letter did not state that any request for an extension must be made before January 1, 2009. […] Certainly the Visa Officer had the discretion to grant the requested extension. The conclusion I draw is that the request was refused in a fit of pique. […] [I]n any event, the decision on the merits not to award any points for English language ability was unreasonable. […] The regulation does not require an IELTS Report and so the Visa Officer failed to discharge his duty by not assessing the material which was on hand. The Minister relies on the decision of Al Turk v. M.E.I., 2008 FC 1396 […] on the assessment of language proficiency. […] In Al Turk the Applicant had studied in English, but the Court held this did not conclusively establish that he had either a moderate or high level of ability. He could well have passed with only a basic level of English. However, the Court noted in that case that the Visa Officer was not satisfied that he had studied in an English speaking environment “such as a person having studied in the U.K.” Not only did Mr. Khan study in the U.K., he was awarded 25 out of 25 points for education. It is ludicrous to suggest that someone who has obtained both an undergraduate and a master’s degree in England from an English language university has no ability in the English language. […][Application allowed] COUNSEL: MATTHEW JEFFERY TORONTO
Affidavit from brother in Toronto 2. SUSHEEL MALIK 2009 FC 1283 IMM-1673-09 DECEMBER 16, 2009 MAINVILLE J.: […] The Visa Officer did not accept a sworn statement made by the […] brother in Toronto and submitted in support of the application as sufficient evidence of the brother actually living in Canada. […]
[T]he Applicant argues that the […] letter of instruction fettered the Visa Officer’s discretion to consider affidavits and statutory declarations. The letter […]: 3. Please provide copies of documents which show that your (or your accompanying spouse’s) relative is
residing in Canada. […] Affidavits and statutory declarations are not satisfactory proof of residence in Canada. […] The letter does not state that affidavits and statutory declarations will never be considered, simply that they are not deemed satisfactory proof. The letter does not close the possibility for an Applicant to establish through other means the Canadian residency of a relative, nor does it necessarily imply that in special and unusual circumstances, an affidavit will not be considered sufficient. […] It is not unusual for officials to seek objective third party documentation to establish residence, and there is nothing particularly offensive or unusual in such a practice. Moreover, the fettering of discretion argument has no application in the particular circumstances of the Applicant. Indeed, had this been a case where the Applicant had no other means of establishing his brother’s residence in Canada than through an affidavit or statutory declaration and had made representations to the Visa Officer on this basis, there could have possibly been an argument for sustaining that the Visa Officer acted improperly by not considering the particular personal circumstances. However, this is not the situation here. Indeed the Applicant could easily have accessed the required documentation to establish that his brother was living in Canada and in fact did access additional information shortly after the decision was communicated to him. In such circumstances, the Applicant cannot now raise a fettering of discretion argument. Finally, the Applicant argues that the Visa Officer had a duty of fairness to reconsider his case when he submitted a request for reconsideration. […] Until and unless the Federal Court of Appeal makes another determination on the matter, the law as stated by Justice Mactavish in Kurrukkal stands and, as a matter of judicial comity, I intend to follow her ruling. Consequently a Visa Officer
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may reconsider a decision made in regard to an application under the federal skilled worker class based on new information provided. […] It is one thing to state that the Officer has the authority to reconsider a prior decision, and quite another to argue that he has a duty to do so. In this case the Officer was requested to reconsider his decision and failed to respond. The Applicant argues that the Officer was under a legal duty to reconsider. […][S]ubject to the eventual decision of […] in Kurukkal […] a Visa Officer may reconsider a decision in appropriate circumstances, but except in circumstances of bad faith, a Visa Officer is under no obligation to so reconsider. Thus the Canadian immigration system is not as inflexible and harsh as to be completely incapable of reasonably accommodating Applicants for small technical issues in the appropriate circumstances. In this case, the Applicant claims […] he provided additional documentation with his request for reconsideration. Yet none of this documentation appears to have been received and is certainly not in the certified tribunal record that was provided to this Court pursuant to Rule 17 […]. It is difficult to conceive how an administrative reconsideration could have occurred if new documentation was not provided. The Applicant did file an affidavit with this Court submitted with the consent of the Respondent. […][T]he notice of assessment document contains no address information and the municipal tax bill concerns a property which does not correspond to the address provided by the brother in his affidavit, but which does correspond to the address of his non-Canadian citizen mother as set out in the Certificate of registration as an overseas resident of India supplied for the brother. […] [T]he Visa Officer’s decision not to treat the brother’s affidavit as sufficient proof of certain facts was reasonable and did not breach any principle of procedural fairness. Furthermore, in light of the fact that none of the supplementary documentation alleged to have been provided to the Visa Officer with the request for reconsideration appears to have been effectively received by the Visa Officer, no error can be found with the Visa Officer’s lack of responsiveness to that request. […] Nevertheless, the documents submitted to this Court by the Applicant’s counsel with the consent of the counsel for the Respondent tend to show that the Applicant’s brother may indeed be living in Canada. In such circumstances, the Court encourages the Respondent to review these documents to ascertain if, in the particular circumstances of this case, a reconsideration of the decision should be contemplated, though no order of this Court compelling such reconsideration will be issued. […][Application dismissed]
COUNSEL: DONALD M. GREENBAUM TORONTO
Dependent-alleged fracture to justify the one year suspension of studies
3. CHAN LIAN MIAO 2009 FC 1288 IMM-1684-09 DECEMBER 17, 2009 MAINVILLE J.: […][S]he neither attended that post-secondary institution nor actively pursued a course of academic training on a full-time basis. Nevertheless, [she] argues that her circumstances warrant the benefit of the definition of a “dependent child” and thus she should be deemed to have attended the post-secondary institution and actively pursued a course of study during the period of September 2005 to September 2006, on the basis that she was absent for reason of having suffered a fracture. […][T]here was not much evidence submitted in regard to the nature of the alleged fracture which is said to justify the one year suspension of studies or any explanation as to why a fracture would have resulted in a withdrawal of studies for a one year period. In such circumstances, it was not unreasonable for the Visa Officer to find that an interruption in studies had occurred for that year. Moreover, though given an opportunity to provide additional documentation, the record before me shows no transcript of course results and no course schedule or other document confirming actual attendance in a post-secondary institution for the period subsequent to September 2007. As noted by the Visa Officer “very limited evidence of school attendance (such as transcripts) was submitted in support of this application”. This lack of documentation, coupled with the immigration authorities’ own investigation with the university’s Foreign Language School failing to confirm either enrollment or attendance by [her], leads me to conclude that it was not unreasonable for the Visa Officer to infer in such circumstances that [she] was not actually attending a post-secondary institution. [Application dismissed]
COUNSEL: HART A. KAMINKER TORONTO
Medical-mental handicap of brother-financial situation-Applicant wishes for his parents to come to Canada because they are ill 4. SHAFQAT ULLAH 2010 FC 4 IMM-307-09 JANUARY 5, 2010 BEAUDRY J.: […] A Visa Officer refused the sponsorship application […]. [T]he brother would require excessive demand on social services in Canada. The father and the mother were consequently held to be inadmissible […].
While it is true that the IAD explicitly stated that the legal validity of the medical determination was not being contested in this case, it did go on to consider the issue and address all of the necessary factors laid out in Hilewitz. […] It noted that no additional medical reports had been submitted that disputed the diagnosis of a mental handicap. It also noted that the brother is able to accomplish certain tasks on his own and the current arrangements for his care in Pakistan. It discussed the proposed care should admittance to Canada be granted. It concluded that it was unlikely that the proposed care would be sufficient and that social services would still be called upon. The IAD found that the Applicant is not in a financial position to assume the cost of social services that his brother might require if admitted to Canada. It is clear in its reasons, that when determining what demands would be placed on the social services system, the IAD balanced the brother’s current condition and needs, the availability and proposed alternative arrangements and the Applicant’s ability to pay. Based on these factors and the analysis presented in the reasons, I find that the IAD did speak to the legal validity of the inadmissibility determination.
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Did the IAD fail to take into account several important factors in determining whether or not the circumstances warranted the granting of special relief? […] With regard to the medical inadmissibility, even though the IAD did not watch the video before rendering its decision, there were numerous other elements of evidence that demonstrated the brother’s ability to complete tasks and live somewhat independently. […][T]he IAD had a solid understanding of the brother’s abilities and the care that he currently requires. It did not rely only on the medical evidence in its analysis but also on the evidence presented by the Applicant and his family. Although it did not explicitly mention the videotape in its reasons, I am satisfied that the IAD did consider the evidence on the brother’s capabilities as a whole and that the failure to mention this one piece of evidence does not render the decision unreasonable. This Court viewed the video in question before the present hearing and considers that without analyzing the medical reports filed in this case, it is very difficult to express an opinion on the brother's capabilities. Furthermore, as to the conclusion on the Applicant’s wife’s ability to care for the Applicant’s brother and her lack of professional qualifications, the IAD does mention that the wife is not a professional caregiver and that she has had little contact with the brother over the years and has never been in a situation where she was responsible for his care. […][T]he IAD had concerns of the amount of time required to care for the Applicant’s brother, particularly in a new environment where he would no longer have his routine tasks, and found that it was unlikely given all the circumstances that the wife would be able to provide the necessary level of care. […] [T]his is a finding that was open to the IAD and is reasonable based on the evidence before it. On the point of his financial situation, the […] first thing to note is that his alternative calculations include his business income and his wife’s income but no evidence of either of these was put before the tribunal and as such will not be considered by this Court. Clearly, the IAD cannot be faulted for not analysing evidence that was not before it. Secondly, the onus is on the Applicant to prove that he has the financial means to pay for social services if he wants this factor be considered. The IAD analysed the financial information before it and made a finding accordingly. It mentioned the different sources of income claimed by the Applicant, over a period of three years, and was still not satisfied of his ability to pay. It did not limit itself to a particular point in time and used the financial information as a whole. Furthermore, ability and willingness to pay for social services are not necessarily determinative factors even if they are taken into consideration.
With regard to the cited humanitarian and compassionate grounds, the situations that unfolded in Pakistan (the alleged political instability that took place after the hearing) on which the Applicant is now basing his claim could not be analyzed by the IAD. Also, his general claims on political instability at the hearing were determined by the IAD as unsubstantiated. The Court finds that there is no reviewable error here.
The Applicant further submits that the IAD ignored his wish to provide care for his parents which would be better than the care provided to them now by his elder brother. However, the IAD clearly acknowledged the parents’ health situation and the fact that [he] is dissatisfied with the care provided by his elder brother who lives with his parents. It stated that the Applicant did not want his parents to work in Canada and that he would provide for them. It also found that there are family members living in Pakistan who provide support to the parents and on whom they can rely. It found that overall there would not be an undue hardship if the parents were to stay in Pakistan. The IAD clearly understood that the Applicant wishes for his parents to come to Canada because they are ill and that he intends to care for them. It did not ignore this ground even if it did not phrase it in the same way as the Applicant. […] The Court wishes to state that the issue here concerns the reasonableness of the decision and not the opinion of the Court on whether or not the Applicant's brother should be admitted in Canada. The Court might have had a different opinion than the one rendered by the IAD, but finds that the IAD's conclusions are in the range of possible and acceptable outcomes […]. [Application dismissed]
COUNSEL: SELF-REPRESENTED EDMONTON Medical-Cost of out-patient drugs
5. RICARDO COMPANIONI 2009 FC 1315 IMM-2616-09 DECEMBER 31, 2009 HARRINGTON J.: […][T]he projected costs of their prescription drugs over the next 10 years is $33,500 per year while the average per capita cost at the relevant time was $5,170. […][T]he principles enunciated in Hilewitz are equally applicable in any consideration as to whether the cost of out-patient drugs would constitute an excessive demand on health services. […] Deol is distinguishable because the issue in that case was prospective surgery, not the cost of out-patient drugs. The fairness letter: […] Their doctor gave particulars of their current state of health and predicted that their current good health ought to remain stable over the next several years. […] Occasional monitoring by a doctor was not considered to be an excessive cost. Dr. Bayoumy calculated that the current costs in Canada of Mr. Companioni’s required out-patient drugs would be $12,700 and Mr. Grover’s $20,800. He did a flatline projection over the next 10 years and similarly projected the average Canadian cost of $5,170. Had the cost of the drugs been anywhere close to the Canadian average a more nuanced approach might have been appropriate. Will the average cost go up, particularly as our population ages? On the other hand, are some of the drugs in question on patent? When will they come off patent? Will a generic enter the market and drive the cost down? In the circumstances of this case, what the Applicant did was reasonable.
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Mr. Companioni and Mr. Grover revealed combined assets of about $500,000. Significantly, they both signed declarations of ability and intent in which each undertook …to ensure enrolment in a private (including employer-based) health care insurance plan which
will cover a minimum of 85% of my prescription costs. […] During any gap of coverage by the above insurance plan(s), including the
period of time after obtaining Canadian permanent residence, and prior to enrolment in a private insurance plan, I intend to fund any
prescription medication costs through my personal savings/assets. […] I hereby declare that I will not hold the federal or
provincial/territorial authority responsible for costs associated with the provision of the services, which I or my family member would
require in Canada and which would otherwise create excessive demand on services in Canada. […]
The Health Canada Medical Officer […]: “Admissibility is dependent on the Visa Officer determining if the clients will have access
to private or employer-based insurance thus not require and/or be eligible to the Trillium Drug Program, and on his/her assessment
of financial aspects submitted.” […] The Visa Officer […] concluded that they had not shown a credible plan. […] The crux of her decision quite rightly lay in the undertakings by Mr. Companioni and Mr. Grover to obtain medical insurance coverage for their prescription drugs. The plan was inchoate in that there was no indication that either Mr. Companioni or Mr. Grover had sought or secured employment in Canada and there was no evidence substantiating their claim they would be eligible for employer-based insurance. She added, and this is crucial: “Subject and partner have not shown they would be able to pass the requirements for any type of employer based medical coverage –
since these coverages are based upon passing medical examinations. Pre-existing conditions may exclude subject and partner from an
employer-based medical coverage plan.” Although the evidence on file was far from perfect, Dr. Bayoumy had specifically mentioned employer-based insurance. There is nothing in the record to substantiate the Visa Officer’s belief that employer-based prescription drug coverage would be contingent on a medical examination of Mr. Companioni and Mr. Grover, who would presumably be found uninsurable due to their pre-existing conditions. […] What is available, however, is the Trillium Drug Program. In essence the holder of an Ontario health insurance card may enrol so that the costs of drugs in excess of four percent of household income are recoverable. Based on their past earnings, even if one were to assume an income of $200,000 per year, the deductible would be $8,000, which would give rise to a claim under the Trillium Drug Program of $25,500, far in excess of the average per capita per annum cost of $5,170. It was conceded that the promises made by Messrs. Companioni and Grover not to draw on public funds are not enforceable. In Hilewitz, as I understand it, the determining factor was that the wealthy were required by Ontario law to contribute to the cost of the social services in question. In the present case, the cost of the drugs in excess of the deductible is borne by the province, without recourse. Thus, Deol applies. Absent a viable insurance plan, most of the costs of the drugs in question would be borne by the province of Ontario, would constitute an excessive demand” and would render Messrs. Companioni and Grover inadmissible. […] The matter is returned to a different Visa Officer for a fresh determination limited to medical admissibility. [Application allowed] CERTIFIED: “Is the ability and willingness of Applicants to defray the cost of their out-patient prescription drug medication (in
keeping with the provincial/territorial regulations regulating the government payment of prescription drugs) a relevant consideration
in assessing whether the demands presented by an Applicant’s health condition constitute an excessive demand?”
COUNSEL: MICHAEL F. BATTISTA JORDAN BATTISTA LLP TORONTO
Marriage of convenience-Age is a factor in determining genuineness of a marriage
6. JOCELYNE PROVOST 2009 FC 1310 IMM-3371-09 DECEMBER 23, 2009 BOIVIN J.: […][A]lthough the age factor will not always be determinative, depending on the facts and other relevant factors, in assessing the genuineness of a marriage (Khera), it cannot automatically be discarded from the Board’s analysis as it remains a relevant factor. This Court is thus satisfied that the Board did not err on this point. However, there was additional evidence before the Board which, in the Court’s view was relevant and which could have assisted the Board in assessing the genuineness of the marriage. Yet, the Board failed to mention such evidence or provide reasons for disregarding them. […] The Board should have further explained why such evidence, which corroborates the Applicant’s testimony, was not allowed. By way of example, the Board ignored documentary evidence which supports the genuineness of both the marriage and Hammad Hamid’s intentions to a certain extent, including many photographs of the Applicant and Hammad Hamid together in Canada; various greeting cards exchanged during the relationship covering the period following Mr. Hammid’s return to Pakistan; evidence of the couple’s telephone communications between 2004 and 2008; evidence of the couple’s e-mail correspondence and the solemn affirmations signed by friends and family of the couple including the Applicant’s sister. While the Board is presumed to have considered all of the evidence, the presumption is rebutted where the Board fails to mention relevant evidence such as this, which contradicts its findings. […][T]here was an obligation for the Board to explain why it did not accept that evidence.
Finally, the Court questions the Board’s conclusion regarding Hammad Hamid’s first sexual relation. According to the Board, […] “the Applicant had his first sexual experience, three years after leaving Pakistan, not because he was attracted to the Applicant but
because she represented an insurance against his removal from Canada after his Convention refugee claim was rejected or because
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she represented to him a means of returning to Canada should he be ordered removed”. The Board’s conclusion is not only perplexing, it is furthermore unsupported by the evidence in the record. […][Application allowed]
COUNSEL: JARED WILL MONTRÉAL
Marriage of convenience-adverse credibility findings 7. INDERJIT KAUR DHALIWAL 2010 FC 7 IMM-2547-09 JANUARY 5, 2010 KELEN J.: […] Mrs. D. and Mr. Paul failed to explain to the IAD what rendered them attractive in each other’s eyes. This inquiry goes to the core of the genuineness analysis. It does not lie in the mouth of Mrs. D. to complain that the IAD found her to be unsuitable for marriage to Mr. Paul because of her characteristics when neither she nor Mr. Paul could associate any positive factors to Mrs. D. beyond being a “good” or “nice” person. […][A]n informed person viewing the matter realistically and practically would not reasonably conclude that it was more likely than not that the IAD Panel, consciously or unconsciously, decided the case with bias or a prejudiced mind. A reasonably informed person would conclude that neither Mrs. D. nor Mr. Paul could articulate any specific characteristic that rendered Mrs. D. attractive to Mr. Paul or vice versa. Whether the IAD member breached natural justice by making a finding during the course of the hearing which is on the transcript that the Applicant was credible and then making a contradictory finding in his decision that the Applicant was not credible. […] The member did not say that he believed Mrs. D., only that she has provided a reasonable explanation about the circumstances of her introduction to Mr. Paul, and the role of Mr. Paul’s sister. This is one small part of the story. I need not repeat the examples of the inconsistencies in the evidence laboriously outlined by the Respondent at the hearing. Suffice to say the Court is satisfied that: […] The finding during the hearing was not a finding as to credibility, only that Mrs. D has provided a “reasonable explanation”. The IAD member later weighed that reasonable explanation in relation to other evidence; and on the evidence it was reasonably open for the IAD to find that the evidence from both Mr. Paul and Mrs. D was not credible or consistent. The adverse credibility findings flowed from the IAD’s determination that the couple misrepresented portions of the evidence during their testimony. […][Application dismissed]
COUNSEL: LORI O’REILLY O’REILLY LAW OFFICE CALGARY IAD-procedural fairness-adjournment 8. SHAUN XENON KHAN 2010 FC 22 IMM-2132-09 JANUARY 8, 2010 RUSSELL J.: […] The issue of notice is complicated in this case by the fact that the Applicant failed to receive formal notice of the hearing because he changed his address and, in breach of his stay conditions, failed to inform the IAD. There is some evidence that he informed Greater Toronto Enforcement Centre of his change of address and failed to understand that he should have notified both agencies of any such change. […] I am mindful of the fact that this was the first review of the stay conditions that the Applicant had faced. […] I have come to the following conclusions xxx:
1. The consequences of the Decision are serious because the Applicant faces deportation; 2. The case which the Applicant had to make before the IAD was not complex. As the transcript shows, he merely had to
answer questions about what he had done to fulfill the conditions of the stay and, for the most, he was able to answer the questions put to him at the IAD hearing;
3. There is nothing to suggest that the Applicant was lacking the capacity to represent himself in terms of answering the questions and addressing the conditions of the stay or did not understand what was being asked of him or its significance;
4. The Applicant did not request an adjournment to retain counsel. He has merely asserted after the Decision that, had he appreciated the seriousness of the proceeding, he would have sought an adjournment in order to retain counsel and obtain documentary evidence. In the full context of this case, I cannot accept that the Applicant could have failed to appreciate what might happen as a result of a review of his stay conditions. The terms of the stay itself make it clear that the stay may be cancelled and the appeal dismissed;
5. There is no evidence before me that the Applicant has any support from his family; 6. Bearing in mind what the Applicant must be taken to have known about his case, I cannot accept that he did not know
enough to ask for an adjournment to retain counsel at the hearing. In his affidavit, the Applicant appears more concerned to retain counsel so that he can try to avoid the consequences of facts that are clearly established. Also, bearing in mind the way the Applicant conducted himself at the hearing (as revealed by the answers he gave in the transcript) I cannot accept that, reasonably speaking, the IAD should have realized he could not address the conditions of his stay on his own behalf and needed counsel. Even now, it is not clear how the Applicant takes issue with any of the IAD’s findings. He was able to give explanations for the breaches, although the IAD did not find his answers credible;
7. The Applicant has not produced sufficient evidence to show me that if this was sent back for reconsideration, he could produce anything in terms of documentation and/or family support that, reasonably speaking, would make any difference to the IAD’s decision. In sum, I cannot say that procedural fairness has been breached in this case. […][Application dismissed]
COUNSEL: MARIO D. BELLISSIMO TORONTO IAD-stay-criminality-subsequent offence-“findings of fact are clearly wrong” 9. SOHIEL HAGE ABDALLAH 2010 FC 6 IMM-2212-09 JANUARY 4, 2010 KELEN J.: […][He] has been a permanent resident of Canada for the past 17 years […]. The (30) year old Applicant, […] became a permanent resident […] at the age of thirteen as a dependent of his mother. […][He] has been convicted of six offences as a youth,
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which include theft under $5000, mischief, robbery, possession of an unregistered and restricted weapon, and failure to appear. As an adult, [he] has been convicted of approximately 23 criminal offences including mischief, obstruction of a peace officer, cheating at play, trespass at night, robbery, possession of property obtained by crime, failure to appear or comply with Court orders. [He] also has numerous convictions under provincial highway law. […][He] was warned throughout the appeal process that he must refrain completely from any criminal activity and incur no further criminal convictions. The IAD warned [him] that his appeal was allowed on the slimmest of margins. […] [T]he Court has reviewed 7 material findings of fact upon which the IAD decision was based, and the Court must conclude that these findings of fact are clearly wrong […]. 1. “The offences which led to the removal order are serious” There was only one old conviction which was a “serious criminal offence”, and that was for break and enter. The circumstance of the offence showed that it was not actually a serious offence in that the Applicant was only given probation and no time in jail. 2. “The appellant has gone on to
flagrantly continue his criminal behaviour.” This is patently unreasonable. Since the 2005 review which granted the stay, [he] has only committed one criminal offence and that was obstruction of justice. Obstruction of justice is not considered “serious criminality” and the circumstances of the case are not such that would warrant deporting [him] from Canada. 3. “Clearly the appellant’s criminal
activity is not a thing of the past or an isolated incident.” For the same reasons as stated above, [he] has not continued criminal activity since the 2005 IAD hearing and decision. 4. “By his ongoing criminal activity he appears to me to be habitual criminal. The
length of his criminal record, spanning his entire life in Canada, is not an indicator of rehabilitation.” This is clearly wrong, and in fact, absurd. Since the 2005 IAD review, there has been no ongoing criminal activity except for the obstruction of justice charge. Giving a false name to a police officer is the act of a person who is afraid, not really ongoing criminal activity or evidence of a habitual criminal. 5. “since the removal order was issued are convictions for failure to attend Court and obstructing a police officer” This is patently unreasonable. The conviction for failing to attend Court took place before the 2005 IAD stay. 6. “Despite two such
warnings he has gone on to commit and be convicted of subsequent offences.” Since the IAD warning in 2005, [he] has committed one criminal offence and that is “obstruction of justice”. The IAD warning related to criminal activity, not to breaching provincial offences. 7. “Despite the strong warning by this Tribunal against further criminal actions and the removal order itself, the appellant
has gone on to commit such offences and has been convicted of 6 additional crimes.” Again this is patently unreasonable, clearly wrong, perverse and capricious and made without regard to the evidence. [He] has been convicted of one criminal offence and that was obstruction of justice, not 6 additional crimes. […][Application allowed]
COUNSEL: MICHAEL GREENE SHERRITT GREENE CALGARY ÉRAR-violence conjugale-Cameroun 10. SANDRINE TECLAIRE SIMO MASSUDOM 2010 CF 14 IMM-1024-09 JANUARY 6, 2010 PINARD J.: […][J]e ne crois pas qu’une entrevue était nécessaire dans le cas qui nous occupe. […] La demanderesse a déposé un nouveau rapport de la même psychologue qui a été rédigé le 3 novembre 2008. L’agent ÉRAR a conclu que cette évaluation étant la même que celle déjà évaluée par la SPR, elle n’avait pas de valeur probante dans la demande ÉRAR. La demanderesse a aussi soumis une évaluation psychosociale rédigée par un CLSC de LaSalle, le 3 novembre 2008. L’auteur de ce rapport suppose aussi que la demanderesse a vécu de la violence conjugale. Dans les circonstances, L’agent ÉRAR n’a pas considéré que ce document pouvait être un élément de preuve probant au soutien des allégations de violence conjugale. À mon sens, les deux derniers rapports, bien que non évalués par la SPR, ont raisonnablement été considérés par L’agent ÉRAR. […][M]ême si une preuve postdate la décision de la SPR, elle n’est pas nécessairement de la nouvelle preuve au sens des critères de l’article 167. En fait, le contenu de ces derniers rapports ne fait que refléter le contenu de la première évaluation psychologique qui était devant la SPR. Il n’y a rien de nouveau quant aux allégations de violence conjugale. L’agent ÉRAR pouvait donc raisonnablement conclure que ces rapports n’avaient pas de valeur probante dans la présente demande puisque la SPR avait déjà trouvé que la demanderesse n’avait pas prouvé avoir été victime de violence conjugale. La demanderesse soutient ensuite que l’agent aurait dû analyser la violence ou la discrimination dont elle serait victime une fois rendue au Cameroun. […] Toutefois, l’agent a trouvé qu’il n’y pas de preuve probante que l’ex-mari et même sa famille du Cameroun persécuteront les demandeurs au Cameroun. De plus, le père de l’enfant est un résident permanent du Canada qui ne s’est pas véritablement intéressé à son fils dans ce pays. Il n’a pas été démontré qu’il a quitté ou qu’il quitterait le Canada pour aller au Cameroun et demander la garde de son fils. Même s’il quittait le Canada, la preuve documentaire indique qu’il y a possibilité pour la demanderesse de contester le tout devant un tribunal civil de première instance au Cameroun. […][Application dismissed]
COUNSEL: MARIE-HÉLÈNE GIROUX BUREAU D’AIDE JURIDIQUE DE MONTRÉAL MONTRÉAL H&C-Family violence-IP-5 application of section 13.1 11. LYUDMYLA HNATUSKO ET. AL. 2010 FC 19 IMM-3262-08 JANUARY 7, 2010 O’KEEFE J.: […] Did the Officer commit a reviewable error by failing to discuss or refer to the specific sections of the CIC Manual dealing with family violence and the Gender Guidelines? With respect to CIC Manual IP-5, section 13.10, there is no doubt that this section applies to the principal Applicant’s situation but at the same time, the mere applicability of the section does not have the effect of automatically causing the Applicants’ H&C application to succeed. […][T]he Officer was aware of the abusive situation that the principal Applicant had left and the Officer did not fault the principal Applicant for no longer having an approved sponsorship. There was no reviewable error with respect to the application of section 13.10 […]: Family violence: Family members in
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Canada, particularly spouses, who are in abusive relationships and are not permanent residents or Canadian citizens, may feel
compelled to stay in the relationship or abusive situation in order to remain in Canada; this could put them at risk. Officers should be
sensitive to situations where the spouse (or other family member) of a Canadian citizen or permanent resident leaves an abusive
situation and, as a result, does not have an approved sponsorship. [They] also submitted that the Officer failed to apply the chairperson’s guidelines and thus made a reviewable error. […][T]hese guidelines, the Gender Guidelines, more aptly apply in the adjudication of Convention refugee claims. Consequently, the Officer did not make a reviewable error in this respect.
[Their] representative was an immigration consultant. [They] have submitted that the consultant did not properly frame the issues in the H&C application and thus, was negligent resulting in a denial of natural justice for them. From a review of the file, I am satisfied that despite this, the real issues and factual background was understood by the Officer. The Officer was aware of the domestic abuse in Canada. The Officer made no error in this respect. […][Application dismissed] COUNSEL: PREEVANDA K. SAPRU TORONTO Au Canada depuis six ans-ne permet pas de conclure que leur présence est reliée à des circonstances qui échappent à leur contrôle 12. NISAR AHMED ET. AL. 2009 CF 1303 IMM-2643-09 23 DÉCEMBRE 2009 BOIVIN J.: […] Bien que [ils] soient au Canada depuis six ans, la Cour note que le dossier ne permet pas de conclure que leur présence au Canada est reliée à des circonstances qui échappent à leur contrôle. En demeurant au Canada, [ils] ont pris une décision à laquelle ils doivent désormais faire face et la Cour est d’avis que les demandeurs ne peuvent être récompensés pour avoir accumulé du temps au Canada (Manjit Singh). […] Lors de l’audience, la procureure des demandeurs a fait valoir que contrairement aux prétentions du défendeur, [ils] ont effectivement demandé l’asile aux États-Unis. Toutefois, la décision de la (SPR) en date du 2 septembre 2003 qui a mis en doute la crédibilité des demandeurs indique en effet que les demandeurs avaient entrepris des démarches mais uniquement sur avis de déportation : « The claimant’s lack of credibility is also reinforced by his failure to claim
refugee status in the U.S. The claimant testified that he and his family stayed in the U.S. illegally, alleging a fear of return to
Pakistan. Yet, they only requested a hearing at the U.S. Immigration Court when they were served with a notice to appear for
removal proceedings on February 5, 2003. » La conclusion de l’agent d’immigration selon laquelle la situation des demandeurs ne lui permettait pas de leur accorder une dispense de l’obligation de présenter une demande de résidence permanente de l’extérieur du Canada était justifiée et intelligible et appartenait aux résultats possibles et acceptables. […][Application dismissed]
COUNSEL: RACHEL BENAROCH MONTREAL Failed to properly analyze evidence about family who appear to be similarly situated individuals and who were granted protection 13. AIM SHAZZADUL MUJIB ET. AL. 2010 FC 10 IMM-493-09 JANUARY 6, 2010 O'KEEFE J.: […] The Officer mentioned the Applicants’ submissions concerning the threats to Mrs. Mujib’s family but a review of the documentary evidence cited by the Officer in relation to changed conditions shows that most of the evidence pre-dated the decision that found her family members to be Convention refugees. In coming to a decision on [their] PRRA application, the PRRA Officer did not accept the documents relating to Mrs. Mujib’s father’s refugee claim (his PIF and other documents relating to his political activities) as they were not new evidence for the purpose of the PRRA claim. These documents, however, can be considered in an H&C application. […][T]he Officer […] failed to properly analyze the evidence about Mrs. Mujib’s family who appear to be similarly situated individuals and who were granted protection. This evidence was put forward by [them]. […][Application allowed]
COUNSEL: HART A. KAMINKER TORONTO Section 34 and the double agent from Mongolia
14. MUNKHTSETSEG TUMEN ULZII ET. AL. 2009 FC 1311 IMM-2548-09 DECEMBER 23, 2009 HARRINGTON J.: Gankhugag Bumuutseren was a double agent. He is a Mongolian who spied for both Mongolia and China. When all came to light, things did not go well for him. He was jailed in China and apparently tortured before being deported to Mongolia, where he was also detained. Fearing that the secret police in Mongolia were persecuting him, he, his new wife, and their young children, one his and one hers, came to Canada in order to seek asylum. […] [S]ection 34(1)(a) of IRPA provides that a foreign national is inadmissible on security grounds for engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada. […] The entire case turns on credibility. […]
[O]ne must always keep in mind the difference between a proper inference drawn from facts, and outright speculation. […] He was not questioned extensively in light of medical reports which indicated that he is still suffering intensely from the effects of his imprisonment and torture, is extremely afraid of anyone who looks Chinese or Mongolian, and experiences frequent flashbacks. It was accepted that his mental state was fragile. […] The Panel concluded that Mr. Bumuutseren did not fear persecution as otherwise he would not have returned to Mongolia to aid his wife and children. While one does not have to be a hero, there is no reason to suggest that Mr. Bumuutseren was such a coward that he would not come to the aid of his wife and children, whether objectively they needed it or not. En route to Mexico (they claimed refugee status when the plane stopped in Canada), they stayed five days in South Korea. The Panel thought they would have made a claim for protection at the first possible opportunity, and so doubted subjective fear on their part. However the jurisprudence is well-established that failure to claim at the very first opportunity is not in and of itself
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determinative. In this case they were already safe, in the sense of being out of Mongolia, and were en route to Canada, where Mr. Bumuutseren had already laid the groundwork. All this led the Panel to believe that the secret police were not pursing the Applicants. The family was able to obtain a letter from the Mongolian Ministry of Health and Social Welfare to facilitate Canadian visitors’ visas. The family did not need exit visas to leave Mongolia, and no reference was made to country conditions to suggest that the secret services’ tentacles were as widespread and efficient as the Panel apparently thought. In conclusion, and taking into account Mr. Bumuutseren’s entire history, and Ms. Tumen Ulzii’s personal testimony which rather than an embellishment upon her husband’s was actually more muted, I find that the decision was unreasonable. [Application allowed]
COUNSEL: D. CLIFFORD LUYT TORONTO “Minister’s analysis could be said to have rendered the exercise of discretion meaningless” 15. MUSHEN AHMED RAMADAN AGRAIRA 2009 FC 1302 IMM-1728-09 DECEMBER 31, 2009 MOSLEY J.: […] The Minister appears to have placed considerable weight on what is described as “clear evidence that the LNSF
has engaged in terrorism” and “has been aligned at various times with Libyan Islamic groups that have links with Al Qaeda”. On the record of what was before the Minister, the evidence that the LNSF has engaged in terrorism is minimal at best and there is only one mention of Al Qaeda. […] I note that the LNSF/NSFL does not appear on the lists of groups proscribed by the UN, Canada and the US as terrorist organizations. In fact, the LNSF appears to have received support from the international community, including western nations, in their efforts to overthrow the Libyan government. However, the issue of whether it is or ever was a terrorist organization is not before the Court and must be taken to have been decided in the proceedings for which leave was denied. But I find it difficult to understand from the record why this factor was considered to be deserving of significant weight. It would have been contrary to the evidence for the Minister to find that the LNSF is directly linked to Al Qaeda. […][I]t does not appear from the reasons that the Minister addressed the questions set out in IP 10 nor does he seem to have balanced the factors which prior decisions had identified as relevant to the determination of what is in the “national interest”. These would include: whether [he] posed a threat to Canada’s security; whether [he] posed a danger to the public; the period of time [he] had been in Canada; whether it is consistent with Canada’s humanitarian reputation of allowing permanent residents to settle in Canada; the impact on both the Applicant and all other members of society of the denial of permanent residence; and the adherence to all of Canada’s international obligations. […][T]he Minister’s Reasons do not acknowledge that [he] has resided in Canada since 1997, that he has been a productive member of society, that he owns his own business earning over $100,000 per annum and that he has no criminal record. […][T]here are concerns whether the Minister’s decision “turned on the simplistic view that the presence in Canada of someone who at some time in the past may have
belonged to a terrorist organization abroad can never be in the national interest of Canada”: Kanaan v. M.C.I., 2008 FC 241. Accordingly, the Minister’s analysis could be said to have rendered the exercise of discretion meaningless […] “It is tantamount to
saying that an individual who commits an act described in subsection 34(1) cannot secure Ministerial discretion because they
committed the very act that confers jurisdiction on the Minister to exercise discretion under subsection 34(2)” (Soe). [Application allowed] CERTIFIED: When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in
assessing whether a foreign national’s presence in Canada would be contrary to the national interest? Specifically, must the Minister
consider the five factors listed in the Appendix D of IP10? COUNSEL: LORNE WALDMAN WALDMAN AND ASSOCIATES TORONTO Extrinsic evidence-What constitutes sufficient notice turns on the circumstances of the particular case-Improperly certified 16. EDWARD JAMES KUNKEL 2009 FCA 347 A-594-08 NOVEMBER 30, 2009 LAYDEN-STEVENSON J.A.: […] The following question was certified: Does an Applicant have the right to notice before an interview of any extrinsic evidence to be considered by a Visa Officer in connection with an application for a visa? […] While extrinsic evidence must be presented to Applicants to provide them with a meaningful opportunity to respond, the opportunity to respond will vary, depending upon the factual context. What is fair and reasonable in one instance may not be in another. There is no general requirement that extrinsic evidence be provided to Applicants prior to an interview, or that they be given an opportunity to clarify the situation after an interview. It may be that disclosing the evidence during an interview and providing Applicants with the opportunity to explain will suffice. What constitutes sufficient notice turns on the circumstances of the particular case. […] Further, where a question has been improperly certified, the Court should not have regard to other grounds of appeal. […] In this case the question was improperly certified because it does not meet the test articulated in Boni. As a consequence, in accordance with Varela, the necessary pre-condition to the right of appeal has not been met and the appeal must be dismissed. [Appeal dismissed] COUNSEL: GUIDY MAMANN MAMANN, SANDALUK TORONTO
III. REFUGEE ISSUES
Daughter in Canada-If fears persecution, would she not prefer to live with/near family member rather than in country of strangers? 1. ANNA UKLEINA 2009 FC 1292 IMM-2838-09 DECEMBER 18, 2009 HARRINGTON J.: […] She is a 72 year old widow who happens to have a daughter living in Canada. […] The key facts found in this case fall within the realm of speculation. They were not reasonable inferences drawn from established facts. The first key element […] is that she was injured during a protest rally in November 2005. […][T]he Panel: The claimant submitted in evidence a medical
note to corroborate her alleged beating by police at the demonstration in November 2005. The Panel notes that the medical note does
not allude to the cause of injury to her head, scratches and wound to the right elbow and determines, on a balance of probabilities,
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that this note was manufactured in an attempt to embellish her claim. The Panel places no weight on this evidence. On what basis did the Panel decide that a medical report from Azerbaijan ought to state the cause of the injury? There is no basis to assume that the injury occurred in the presence of the medical doctor. There could be any number of reasons why Mrs. Ukleina suffered the injuries she did. Failure to state a cause, which in any event would have been hearsay, cannot possibly lead to the inference that the report is a forgery. Turning now to the visit to the hospital in May 2006, this is what the Panel had to say: The claimant was asked how the
police would know who she was visiting at the hospital, to which the claimant responded that she concluded that the police were
following her. The claimant was asked why the police would be following her, to which the claimant had no reasonable explanation,
other than she later came to that conclusion after being detained and the police had stated that she was against the government. […]
A question along the lines of why do you think someone else knew something is fraught with danger. It invites speculation. Mrs. Ukleina’s evidence was very clear. She did not know why the police knew she was at the hospital. She was invited to speculate and did so. She speculated that she may have been followed. She could also have speculated that the patient was being monitored by the police. The Panel then built on this speculation by adding another of its own. If she were being followed by the police, why would she have been allowed into the hospital room in the first place? There is absolutely no basis in fact to permit the Panel to come to the conclusion that the evidence was untrustworthy. […] A number of other criticisms could be levied against the Panel which engaged in a microscopic examination of peripheral points, but in light of the above it is not necessary to do so. A desire on Mrs. Ukleina’s part to live with her daughter does not exclude the possibility that she is also a refugee. If she fears persecution in Azerbaijan, would she not prefer to live with or near a family member, rather than in a country of strangers? […][Application allowed]
COUNSEL: JACK DAVIS DAVIS & GRICE TORONTO “There is something very wrong in the relationship between men and women in St. Vincent and the Grenadines” 2. JAMILAH ALEXANDER 2009 FC 1305 IMM-2815-09 DECEMBER 22, 2009 HARRINGTON J.: There is something very wrong in the relationship between men and women in St. Vincent and the Grenadines. Year after year, woman after woman washes up on our shores seeking protection from abusive, violent husbands or boyfriends. […] The only issue was that of state protection. […] Taken at its face value, the decision appears to be reasonable. This Court is supposed to show deference to the RPD Panels who allegedly have greater expertise in country conditions than the Court itself. However there comes a time when it becomes obvious that deference should be earned, particularly when the Panel apparently pays no attention to the cases coming out of this Court which specifically deal with St. Vincent and the Grenadines. The analysis of country conditions was clearly a pro-forma one, or what Madam Justice Snider called in Alvandi v. M.C.I., 2009 FC 790, a “cookie-cutter analysis.”
[…] What undermines the Board’s decision is the failure to address the contradictory finding in the Memon decision. It may well be that the member disagreed with the findings in Memon and may have had good sustainable reasons for so doing. However, the Applicant is entitled, as a matter of fairness and the rendering of a full decision, to an explanation of why this particular member, reviewing the same documents on the same issue, could reach a different conclusion. On the documentation before it, the Panel’s reference to the Domestic Violence Act 1995 is irrelevant, as it does not reply to the relationship Ms. Alexander was in, which in local parlance was termed a “visiting” relationship.
Although it was acknowledged that there are serious problems in St. Vincent and the Grenadines, and that the situation is improving, I cannot escape the conclusion that this is a “good news” analysis. In the Board’s own Response to Information Request […], it quotes a representative of the St. Vincent and the Grenadines Human Rights Association to the effect that when female victims go to make reports they are served by gross, disrespectful, chauvinistic, young male police officers who feel that the victim asked for the treatment she received. Reference was made to the fact that there is no women’s shelter in Kingstown. Had the Panel been following country conditions, and the decisions of this Court, it would surely would have picked up on what I said in Myle, 2007 FC 1073. It would have noted that earlier documentary evidence was to the effect that the Government had purchased a women’s shelter which was being renovated in 2004. A year later it was assumed that the shelter was operational. The latest information indicates that there is no such shelter. How does this fit in with the serious efforts attributed to the Government? Even more disturbing is the recent decision in Trimmingham v. M.C.I., 2009 FC 1059. While that case was rendered after the Panel’s decision in this case, the evidence shows that the Consul General of St. Vincent and the Grenadines wrote in May 2008 to in effect say the police were unable to protect the Applicant. This is exactly the same situation as in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, in which the Republic of Ireland admitted that it was unable to protect Mr. Ward. The Supreme Court referred that matter back because Mr. Ward also had United Kingdom citizenship and had to take all reasonable efforts in all the countries which had a duty to protect him.
I find absolutely astonishing that the IRB publishes information on country conditions but fails to mention that the Consul General has admitted that the state cannot guarantee the effectiveness of a restraining order. That would be relevant information in any assessment as would an analysis of the types of threats Ms. Trimmingham received as opposed to those received by Ms. Alexander. […][C]onsider the following words of Andrew Marvell, “The grave’s a fine and private place, but none, I think, do there embrace”. Small comfort to the family of those whose loved ones have been murdered that the perpetrator has been dealt with in accordance with law, after the fact.
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Speaking in that vein, whatever happened to the case where the police ignored a woman’s complaints that her boyfriend was harassing her? Her head was lobbed off at a bus stop in broad daylight. This incident is to be found in the case law (Myle, 2007 FC 1073, at para. 23) from this Court dealing with St. Vincent and the Grenadines. [Application allowed]
COUNSEL: MARC J. HERMAN TORONTO State protection-not just that police refused to accept his report or to help him; police threatened to arrest him and put him in jail 3. LEONARDO MACIAS BARAJAS 2010 FC 21 IMM-2393-0 JANUARY 7, 2010 RUSSELL J.: […][T]he protection that such organizations offer must be assessed against the severity of the threat that any Applicant faces. In this case, the Applicant faced death, and that threat was immediate. A gun had been pointed at his head and he had been told the police would not protect him. In fact, it was the police who had pointed the gun at his head and issued the threats. With such an immediate threat, it is difficult to see how alternative institutions could reasonably provide [him] with any protection. […][T]he police force was not only unwilling to protect the Applicant, it was also the perpetrator of the threat, and that threat was immediate and deadly. It was not just that the police refused to accept his report or to help him; the police threatened to arrest him and put him in jail. Under such circumstances, I think it was entirely unreasonable for the Board to expect that [he] could have countered such a threat by going to alternative institutions that deal with corrupt police and other state officials. […] This problem was exacerbated by the Board’s failure to refer to compelling evidence that contradicted its own conclusions about the ability of the Mexican state to provide adequate protection. […][He] has faced police threats in Guadalajara and Zapopan, two large cities. There is no evidence to show why the situation in Mexico City would be any different, or why [he] would be any safer in Mexico City. […][Application allowed]
COUNSEL: J. BYRON M. THOMAS TORONTO
New evidence to show his cousin – a member of an elite police force in Kenya – continued to pursue him, has killed his friends 4. NELSON NDEREVA NJERU 2009 FC 1281 IMM-2258-09 DECEMBER 16, 2009 RUSSELL J.: […] The Applicant has been in Canada since May 25, 2006 and he has not been pursuing a dispute with his cousin since his arrival in Canada. He brought forward new evidence to show that his cousin – a member of an elite police force in Kenya – has continued to pursue him, has killed his friends and intends to kill [him]. […] The Officer accepts this evidence. He does not question its credibility. Nor does he express reservations about its source. All he says is that it is “insufficient objective evidence to
indicate that the deaths of these two individuals was connected with the Applicant’s land dispute.” This conclusion is unreasonable in two ways. First of all, the Officer ignores the fact that this evidence, which post-dates the RPD hearing, does not just address the two murders; it also proves that threats have been made against the Applicant that could be carried out if he returns. The Officer appears to ignore, or totally overlooks, this crucial factor in evidence that he has accepted. This issue is very important because the RPD had based its decision, at least in part, on its own speculative view that the threats from the cousin would dissipate over time. […] Secondly, the letters connect the murder of the two men in Kenya to the Applicant. As regards the Applicant’s best friend who was murdered, the evidence shows that several men entered his home and he was commanded to either produce the Applicant or be killed. After delaying, he was shot dead. The second victim was a witness to the land transfer who was also questioned about the Applicant’s whereabouts before his death. There was no reason to discount these letters as not being connected to the dispute between the Applicant and his cousin or, more importantly, to the prospective risks that the Applicant faces if he is returned. […] We are never told why the Officer thinks that taking “some steps” to combat corruption means that “impunity” has become any less of a problem in Kenya. […] The Court can have no confidence that the Officer has truly addressed the situation faced by the Applicant and the conditions of impunity that exist in Kenya. [Application allowed] COUNSEL: HADAYT NAZAMI TORONTO Only harassment the failure of army to pay for confiscated poultry and supply problems encountered when A6 highway closed 5. SUGANTHAN SRIBALAGANESHAMOORTHY 2010 FC 11 IMM-2448-09 JANUARY 6, 2010 NEAR J.: […] The Applicant is sponsored by a Group of Five sponsors. The Visa Officer [Gregory Chubak] determined that the Applicant did not meet the requirements of any of the refugee abroad classes. […] However, [his] own narrative fails to mention any harassment during his time in the North when he drove up and down the A6 highway to supply his poultry farm. The only harassment that is disclosed during this period is the failure of the army to pay for confiscated poultry and the supply problems the Applicant encountered when the A6 highway closed. The Officer acknowledged [his] suffering at the hands of the LTTE but he reasonably determined that there was no substantiation of [his] allegations. The bulk of the information similarly does not point towards specific instances of harassment during the last few years of [his] stay in Sri Lanka. There is insufficient evidence to ground a claim from refugee protection on the evidence of this case. Consequently, the Visa Officer’s determination that [he] was an economic migrant was reasonable on the facts before him. […][T]he Visa Officer was only required to refer to the materials placed before him by [him]. It is illogical to expect the Visa Officer to make references to objective country condition documentation that was not submitted. The fact that some country condition documentation may support the Applicant’s case does not impose a duty upon the Visa Officer to search for and produce that evidence on the Applicant’s behalf. […][Application dismissed] COUNSEL: ROBERT I. BLANSHAY TORONTO Authorities in the Fujian Province are more tolerant of Christian underground churches than elsewhere in China 6. XIA FENG SHI 2010 FC 8 IMM-1850-09 JANUARY 5, 2010 SNIDER J.: […][T]he Board, without any credibility concerns, accepted that the Applicant was practising Christianity as a member
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of a house church in China and that he continued his practice of Christianity in Canada. […] The Respondent submits that the Board’s reference to the Fujian Province was a simple error and that the balance of the decision reflects the Board’s analysis of the situation in Shanghai. I am not persuaded that this was a simple slip of the pen. Contrary to the assertions of the Respondent, the balance of the decision is not entirely clear as to whether the Board’s mind was directed to Shanghai or to the Fujian Province. This problem is particularly serious in this case because the documentary evidence appears to show that the authorities in the Fujian Province are more tolerant of Christian underground churches than elsewhere in China. The foregoing error indicates a lack of care in the handling of this case that makes me doubt the presence of the required “justification, transparency and intelligibility within the
decision-making process”. […] There is no need here to elaborate on other concerns, since one serious error is sufficient to allow the judicial review […]. The uncertainty regarding the area of China considered by the Board […], along with the problems in the treatment of evidence, are errors serious enough to allow this judicial review. [Application allowed]
COUNSEL: MICHAEL KORMAN OTIS & KORMAN TORONTO Panel does not appear to have made a finding as to [her] Christian practices in China or as to her Christian convictions in Canada 7. SHAODAN LIN 2009 FC 1276 IMM-3037-09 DECEMBER 16, 2009 MAINVILLE J.: […] In a nutshell, [she] argues that the Panel made a negative credibility finding based on her prior application for residency in Canada, and denied the refugee claim essentially on this basis without considering the risks she could encounter in China as a practicing Christian. […] In Huang v. M.C.I., 2008 FC 132, a case bearing some similarity to the one here, Justice O’Reilly noted […]: even if the Board's finding that Mr. Huang had not been a member of an underground church was supported by the
evidence, that finding did not justify a conclusion that Mr. Huang was not entitled to refugee protection. While the Board speculated
that Mr. Huang's general knowledge of Christianity might have been acquired in Canada in order to substantiate his refugee claim,
it did not make a definitive finding that Mr. Huang was not a genuine Christian. In my view, therefore, the Board failed to consider
whether Mr. Huang might encounter religious persecution if sent back to China, whether or not he had previously been a member of
an underground church.
The Panel does not appear to have made a finding as to [her] Christian practices in China or as to her Christian convictions in Canada. The Panel does not appear to have carried out an analysis regarding these matters or made findings as to the whether the Applicant might encounter religious persecution if sent back to China. The Respondent argues that the Panel did find that the Applicant is a practicing Christian in paragraph 13 of its decision where it noted that the Applicant had loss her kindergarten teaching position because of her beliefs. However that paragraph simply reiterates the Applicant’s claim, and in it the Panel does not make a determination as to [her] beliefs or religion. This paragraph alone cannot be taken as a determination by the Panel of the central issue at stake in the case. The Respondent also calls upon this Court to review the country documentation showing that the treatment of Christians in China has considerably improved. However, it is not the Court’s role to engage in such an analysis where the Panel has not done so. It was the Panel’s responsibility to first the review and analyze the country conditions and to clearly set out in its decision why these conditions do or do not constitute a threat for the Applicant. That analysis would of course be itself subject to review before this Court. The issue here is with the intelligibility and justification of the Panel’s decision. Nowhere in its reasons does the Panel clearly state its position as to the Applicant’s religious beliefs and practices in China, nowhere does it review country conditions in China regarding Christians, and nowhere does it address the current religious beliefs of the Applicant, including the baptismal certificate supplied by the Applicant. […][Application allowed] COUNSEL: LEONARD BORENSTEIN TORONTO Identity-driving licence and Hukou “inconclusive” 8. WEI YANG 2009 FC 1280 IMM-5285-08 DECEMBER 16, 2009 RUSSELL J.: […] So the Applicant is saying that, even if he is not a Falun Gong practitioner, and never has been, the Board should have considered whether the Chinese authorities perceive him as such and whether he faces persecution and risk as a consequence of that perception. The Applicant says that the Board should have asked whether the Applicant associated with Falun Gong practitioners in China and should have made findings of fact on this issue. The problem with this argument […] is that the Applicant actually is a Falun Gong practitioner. If he is not, then his whole narrative about what has happened to him in the past and the risks he faces in the future, falls apart. […] The whole subjective basis for his refugee claim disappears, which is sufficient for the claim to fail. […] As regards the identity findings, however, it seems to me that the RCMP report was not favourable to the Applicant. The report found the authenticity of the driving licence “inconclusive,” so that the Board was at liberty to apply its own expertise and come to the conclusions it did after questioning the Applicant. The Applicant had been put on full notice that the Board was concerned about identity and that he would have to produce acceptable documentation or a reasonable reason for a lack of documentation. The transcript shows that the Board questioned [him] on these issues. The Decision explains why the Board found the documentation produced, and the reasons for not producing the resident identity card, unacceptable. […][A]lthough the phrasing in the Decision is sometimes imprecise, the substance is clear and the Board provided a reasonable explanation for its findings on identity based upon the evidence before it, including the Applicant’s testimony. As regards the Hukou, the forensic report found that its authenticity was “inconclusive.” There was no household number of the document “which is unusual, but has been seen before.” The Board provides distinct reasons for rejecting the Hukou: there was no
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number on it; the Applicant’s explanation was not satisfactory; country documents indicated that a number is placed on the Hukou; and the Hukou had very few security features. A reading of the Decision as a whole reveals that it was not simply rejected because the driving licence was rejected. The Board took the driving licence and the Hukou into account, but made much more of the fact that the Applicant had failed to produce his resident identity card and could not provide a reasonable explanation for his failure to do so. In the full context of the lack of acceptable identity documentation the Officer’s rejection of the Hukou because it had no number and had very few security features is reasonable. The statement “since I find the driver’s licence is fraudulent, I must also conclude that the
Hukou is as well, as there is no number on it” should not be read out of context. When the Decision is read as a whole, my conclusion is that the Board is simply pointing out, albeit in a clumsy way, that the absence of a resident identity card, and an inauthentic driver’s licence, do not provide much support for a Hukou with no number and no security features on it and which is probably inauthentic as well. […][Application dismissed]
COUNSEL: SHELLEY LEVINE LEVINE ASSOCIATES TORONTO Took every possible step to enter and stay-filing false visa application, foreseeing possibility of marriage, protection as a last resort 9. YADHWINDER SINGH NIJJER 2009 FC 1259 IMM-340-09 DECEMBER 9, 2009 DE MONTIGNY J.: […][T]he RPD’s finding as to [his] lack of credibility does not appear to me to be unreasonable. Certainly, the Applicant took every possible step to enter into and stay in Canada by filing a false visa application, by foreseeing the possibility of a marriage, and by claiming refugee protection as a last resort. The Panel was no less entitled to find that [he] did not establish that his wish to stay in Canada was based on a real fear of escaping persecution in India. [Application dismissed]
Les demandeurs en l’espèce ont toujours soutenu avoir avisé la SPR de leur changement d’adresse 10. DOMINGO MARTINEZ GARDUNO ET. AL. 2009 CF 1306 IMM-2185-09 22 DÉCEMBRE 2009 MONTIGNY J.: […] Il est important de noter la particularité de cette affaire. Contrairement à bien d’autres cas où des demandeurs admettent avoir omis d’aviser de leur changement d’adresse, les demandeurs en l’espèce ont toujours soutenu avoir avisé la SPR de leur changement d’adresse. Autant dans leur affidavit devant la SPR que dans celui qu’ils ont présenté à l’appui de leur demande de contrôle judiciaire, ils affirment avoir donné un avis de leur changement d’adresse autant à CIC qu’à la SPR. […] Appelée à se prononcer sur une affaire semblable, voici ce que la Cour d’appel fédérale écrivait: […] le requérant a droit, en l'absence de toute
circonstance tendant à susciter un doute, au bénéfice de sa preuve non contestée selon laquelle il avait fait part à la Commission de
sa bonne adresse. Il s'ensuit que l'avis de l'audience de désistement a été envoyé à la mauvaise adresse, et que, de ce fait, le requérant
s'est vu privé d'une audience équitable, en accord avec les règles de justice naturelle, pour déterminer s'il s'était désisté ou non de sa
revendication du statut de réfugié. La section du statut de réfugié a commis une erreur en fondant sa décision de ne pas réouvrir la
revendication sur la conclusion que le requérant n'avait pas prouvé qu'il avait pris les mesures voulues pour faire part de son adresse
à la Commission. Rien ne prouve que l'erreur n'a pas été commise par la Commission elle-même; il n'y a aucune raison de douter de
la crédibilité du requérant ou de cet élément de preuve; il n'y a donc pas lieu de s'opposer à la réouverture de la revendication du
statut de réfugié du requérant. Zaouch c. Canada M.C.I. (1996), 64 A.C.W.S. (3d) 844, aux par.10-12 Je crois que ce raisonnement est transposable en l’espèce, du moins en ce qui concerne la conclusion de la SPR quant à l’absence de preuve, malgré l’affidavit du demandeur. […][Application allowed] COUNSEL: WILLIAM SLOAN MONTRÉAL Applicant should have been looking for ways to remain in the U.S. 11. MOHAMMED SHABIR WAZEEN 2010 FC 15 IMM-1556-09 JANUARY 6, 2010 PINARD J.: […] In October 2004 the Applicant arrived in the U.S. His marriage to his cousin was short lived; they separated in June 2005 and divorced in 2006. Ultimately, he did not obtain his green card and was advised by lawyers that he would never obtain a regularized status as a refugee because of the short duration of the marriage and the fact that he had used an alias since his arrival. The claimant decided to come to Canada through the assistance of an agent. […][T]he Board did not believe the Applicant’s testimony because his demeanour was “flat and irritable” and it could not tell if the Applicant was sad when speaking of Yasamin and his missing brother who was “most likely murdered by her family.” Furthermore, the Applicant seemed to resent and was annoyed for being asked questions about his life. […] The Board concluded that this pattern of lying to the U.S. authorities, to the Immigration Officer when he landed in Canada, and to CBSA at the detention centre convinced the Board that it was not in a position to determine whether inconsistencies or omissions from [his] (“PIF”) as well as explanations provided during the testimony were truthful or further lies […]. The Board explained that the Applicant should have been looking for ways to remain in the U.S. from the time he and his wife separated, before they were officially divorced in February 2006. […][Application dismissed] COUNSEL: JARED WILL MONTRÉAL 97(1)b)(ii)-motifs du tribunal ne démontrent aucunement que cette exigence législative est remplie 12. DJUMA HABIMANA [DÉFENDEUR] 2010 CF 16 IMM-5616-08 JANUARY 6, 2010 PINARD J.: […] De plus, […] le tribunal ne pouvait pas conclure que le défendeur subirait un risque pour sa sécurité ou sa vie sans avoir conclu soit qu’il avait été arbitrairement accusé, soit que les demandeurs d’asile renvoyés au Rwanda étaient plus susceptibles d’être poursuivis en justice ou menacés que les citoyens Rwandais ordinaires. Dans l’un ou l’autre de ces cas, le tribunal pourrait conclure que le défendeur serait exposé au Rwanda à un risque « alors que d’autres personnes originaires de ce pays ou qui s’y
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trouvent ne le sont généralement pas », comme le requiert le sous-alinéa 97(1)b)(ii) de la Loi. Les motifs du tribunal ne démontrent aucunement que cette exigence législative est remplie dans le cas du défendeur. Quant à la conclusion du tribunal voulant que le défendeur soit susceptible de ne pas être traité équitablement du fait de son origine hutue, je note, à l’instar du ministre, que le tribunal a pourtant conclu que l’article 96 de la Loi ne s’appliquait pas au défendeur, et donc que sa nationalité n’était pas un motif suffisant pour en faire un réfugié. Ainsi, la conclusion du tribunal que le défendeur est une personne à protéger n’est pas transparente et intelligible. […][Minister’s application allowed]
COUNSEL: JOCELYNE MURPHY MONTRÉAL Had not adequately prepared case-needed more time to adduce additional evidence in order to bolster evidence already submitted 13. CHI YU LIAO ET. AL. 2010 FC 2 IMM-1754-09 JANUARY 4, 2010 MAINVILLE J.: […] This is not a case where the Applicants were taken by surprise by some new evidence submitted at the hearing to which they needed time to respond to or in which a new issue was raised. Rather the Applicants sought an adjournment essentially on the basis that they had not adequately prepared their case and needed more time to adduce additional evidence in order to bolster the evidence they had already submitted. To grant additional delays […] where the Applicants knew the case they had to meet, had years to prepare, and could easily have accessed all the new evidence they sought to adduce prior to the hearing, would be to affect the very credibility and coherence of the refugee adjudication process. I have no hesitation finding that the Panel adequately took into account and considered the relevant factors set out in Rule 48 of the Refugee Protection Division Rules in refusing to grant the adjournment, and that the Panel did not breach any duty of fairness toward the Applicants in so deciding. [Application dismissed] COUNSEL EDWARD F. HUNG TORONTO
NOTICES The next Lexbase Sending is: MARCH 2010 E-MAIL ADDRESS: [email protected]
