Case Commentary - 2008
January 10, 2008: Anaere v. Canada (Minister of Citizenship and Immigration)
The appellant became a landed immigrant in 1999 and applied for citizenship in 2002, after which he left toVietnam to volunteer for two years with a Canadian NGO on a project funded by the Canadian International Development Agency. While he neglected to make arrangements to write the knowledge test outside of Canada, during this period abroad he maintained his personal effects in Canada and regularly deposited his funds into his Canadian bank accounts. Accepting temporary employment abroad does not necessarily count against an applicant, and given that such employment was financed by the government of Canada should not be considered to lessen his ties to Canada. Given that in addition to this information the Citizenship Judge failed to consider the documentary evidence provided to demonstrate the appellant's continued connections to Canada, the judge's decision was found to be unreasonable.
February 22, 2008: Fernandes v. Canada (Minister of Citizenship and Immigration)
The IRPA provides for the opportunity for an applicant that the officer consider using favourable discretion in considering an application that does not succeed based on the point system. This exception allows the officer to decide favourably if the points system does not adequately reflect the applicant's ability to become economically established in Canada. Such a request must be accompanied by some reasoning, but need not be augmented by greater detail on the applicant's background, experiences, or skills. If such a request is made, the officer must display that they considered whether to exercise such discretion, and the failure to consider doing so amounts to a reviewable error.
February 28, 2008: Nizami v. Canada (Minister of Citizenship and Immigration)
A note in the CAIPS notes of a file does not serve as adequate proof that an interview notice has been sent and received by an applicant. The applicant alleges she was not given notice of her rescheduled interview despite CAIPS notes that suggest otherwise. She pointed convincingly that no such letter was found in her file upon disclosure. The applicant had been actively responsive to requests for information and enthusiastic about immigrating to Canada. In light of such information, CAIPS notes do not serve as credible evidence that such a notice was sent and ignored, which suggests the applicant was not given due procedural fairness.
February 29, 2008: Khatoon v. Canada (Minister of Citizenship and Immigration)
The applicant was denied a temporary resident visa that she sought to attend the wedding of her granddaughter in Canada. The officer was not satisfied that the applicant would leave the country at the end of the approved period. Their justification for this denial was based largely on the fact that her son had in the past remained in Canada without status. Furthermore he imputed cultural practices to assume that the applicant would seek to live with her son in Canada rather than her daughter in Pakistan. Both of these present patently unreasonable bases for refusal. The individual should be considered without regard for the behaviour of family members or stereotypes of cultural practices. In addition, the Minister made a policy decision in 2005 to encourage officers to be more flexible in providing temporary resident visas to parents and grandparents. The visa was granted on appeal.
March 7, 2008: Ogbonnaya v. Canada (Minister of Citizenship and Immigration)
The applicant was accepted to study economics at York University and sought a visa to begin his studies in September 2007. He was forced to defer his acceptance when his application was denied on two grounds: that he was not a bona fide student, and that he lacks ties to Nigeria and was thus unlikely to return upon completion of his studies. The first claim is surely unreasonable as he presented proof of his acceptance from York University, and was presumably based on the four years that had elapsed between his completion of high school and beginning of university. This is far from sufficient reason to question his bona fides. Secondly, the visa officer overlooked the fact that the applicant has his parents, six older siblings and wide extended family in Nigeria, and no family in Canada. In addition the applicant has been actively involved in his local parish of the Presbyterian church in Lagos since his teenage years. The officer's decision was deemed unreasonable and overturned on appeal.
March 20, 2008: MALKIAT SINGH GILL ET. AL. v. Canada (Minister of Citizenship and Immigration)
The Visa Officer must look beyond the mere registration in the applicant’s program of study to determine if he is engaged in his schooling in a bona fide capacity. The applicant attributed the failure of her academic year to substantial leaves of absence taken for personal reasons throughout the year, her claims substantiated by her father. The Judge agreed and concluded that these absences alone did not constitute an excessive period of time for the applicant to abandon her schooling based on the fact that she had studied with enough intensity to gain the knowledge that her classes aimed to impart upon her, and that no intention to abandon her studies existed. The Visa Officer erred in deciding that the applicant had violated section 2 of the Regulations and the Judge allowed the application.
March 30, 2008: OL UGBOYEGA GBOLAGUNTE OLADIPO v. Canada (Minister of Citizenship and Immigration)
The applicant failed to provide pertinent documentation describing his job duties and responsibilities outside Canada, and therefore did not fulfill the requirements of qualifying as a skilled worker. Even after the officer agreed to include employment experience at Verizon, regardless of its legality, and expressed concern over the lack of information, the applicant provided no documented proof. The application was dismissed.
April 3, 2008: CHOON SOO YOON ET. AL. v. Canada (Minister of Citizenship and Immigration)
Claiming reliance on one’s children does not constitute grounds for a valid H&C claim. In this case, the officer failed to grasp the applicants’ point that they rely entirely on their children and that any return to Korea would place them in an undue situation of hardship. The H&C officer made allegations that the applicants must have relatives to turn to in Korea, that their daughters have reached a point of self-sufficiency at which they can sponsor their parents, and that any separation between the applicants and their daughters would be temporary. No evidence supports these assumptions. The application was allowed.
April 3, 2008: LANG ZHENG v. Canada (Minister of Citizenship and Immigration)
A Visa Officer cannot be willfully blind in assessing an application and must act in good faith. The Officer rejected the applicant’s claim after noticing an obvious error in the latter’s education history. The respondent cited Lam v. M.C.I., (1998), 152 F.T.R. 316, which outlines a proviso with respect to the obligations of the Visa Officer and the exercise of discretion. The Judge concluded that the Officer exercised poor judgment by not asking for clarification regarding the obvious error which led to the rejection of the initial application.
April 17, 2008: MUNIRUL ALAM v. Canada (Minister of Citizenship and Immigration)
The Visa Officer did not breach the doctrine of procedural fairness by refusing to grant the applicant an extension to take the IELTS test. He had no legal obligation to grant an extension, although he could have. The applicant conducted a self-assessment of his English Language proficiency but did not undergo the IELTS test pursuant to paragraph 79(1) (a) of the Regulations, and so the Officer proceeded with the assessment of the application beginning in January-February 2007.
April 25, 2008: AHMAD REZA AZALI ET. AL. v. Canada (Minister of Citizenship and Immigration)
The duty of fairness does not require that the applicants be confronted with information which they themselves supplied. The officer discovered contradictions in visa information submitted by the applicants and concluded that they did not meet the requirements as members of the convention refugee abroad class or the country of asylum class. His decision to draw negative inferences based upon the inconsistencies in this information known to, and submitted by, the applicants did not breach his duty of fairness and was free from reviewable error. The application was dismissed.