Case Commentary - 2012
January 9, 2012: Irum Rahim Talpur et. al. vs. Canada (Minister of Citizenship and Immigration)
The applicant applied under the Federal Skilled Worker Class and claimed work experience as a General Practitioner, under the National Occupation Code 3112. Her application was refused after an interview with a visa officer. The applicant is requesting a judicial review of this decision.
The visa officer had several concerns about the applicant’s work experience which were addressed during her interview. First, the duties described in the reference letter were almost identical to those set out in NOC 3112. The applicant stated that her past employer did not know English very well, and may have done research on the internet to find the right words to describe the duties she performed. However, the visa officer was not satisfied with this explanation. The officer then asked for documents confirming the applicant’s work experience, such as pay slips. The applicant claimed that she was paid in cash and the clinic she worked in had no accounting system.
Later in the interview the officer asked several technical questions related to pre-natal and post-natal care. She noted that the applicant lacked basic knowledge of this subject, which the officer stated a person with experience in NOC 3112 could reasonably be expected to possess. Based on these responses and her continuing doubts with regards to the documentary evidence submitted, the visa officer refused the applicant’s application.
However, the visa applicant’s licensing and competency were not up for consideration at that stage in the process. As the applicant’s education credentials had already been verified, the only task left to the visa officer was to ascertain whether or not the applicant had at least one year of continuous full-time paid work experience as a general practitioner. Rather than trying to establish if the applicant had carried out the duties of a family doctor, the visa officer put forward questions intended to assess the applicant’s knowledge and ability as a physician. The questions she asked were directed toward the applicant’s medical skills as well as her ability to use medical jargon, rather than to whether or not she performed the duties of a general practitioner. This was an error on the part of the visa officer, and her decision to refuse is unreasonable. Therefore the application for judicial review is allowed.
January 10, 2012: HARDEEP SINGH v. Canada (Minister of Citizenship and Immigration)
The Applicant had in the past been found to be guilty of misconduct for acting in contravention of the immigration laws of Canada for failing to report for removal. However, he remedied his misconduct by voluntarily turning himself in after a warrant against him had been issued. The Court finds that he had therefore not shown a complete disregard for the immigration laws of Canada, and elected to consider the application for review.
At issue was the Visa Officer’s assessment of the genuineness of the Applicant’s marriage. The documentation provided was deemed “solid”, however the Visa Officer considered this evidence as “complementary” and focussed rather on issues with eight of the Applicant’s answers out of a total of thirty-nine. These answers related, for example, to food eaten in the home, the names of roads surrounding their apartment, and the location of the couple’s temple.
These discrepancies are concerning, however they alone do not justify a finding of lack of genuineness based on a balance of probabilities. Further, the Court notes that the Officer mentioned that these responses were not convincing, however he added no further explanation as to why. His reasoning was not clear.
While the assessment of the evidence is left to the Visa Officer, and deference is owed to his factual determination, the Court does not consider his decision to be intelligible, justifiable, or transparent. It therefore falls outside of the range of possible, acceptable outcomes which are defensible in respect of the facts and the law. The application for review is therefore allowed.
January 13, 2012: Hua He vs. Canada (Minister of Citizenship and Immigration)
The applicant applied under the New Brunswick Provincial Nomination Program. Her application was refused on the basis that she was inadmissible to Canada for misrepresentation, and the applicant is seeking a judicial review of this decision.
While conducting an initial review of the application, the visa officer noted the applicant’s income between 1997 and 2007. The application stated that this income came from her employment as a sales manager / sales person. The officer requested verification of this employment from the Anti-Fraud Unit. An assistant in the Anti-Fraud Unit contacted the employer to determine when and if the applicant was employed there, and to verify her stated income.
The first person contacted during the verification process was responsible for preparing attendance sheets and keeping a list of employees. He stated that he did not know the applicant. The Anti-Fraud assistant was then referred to the company’s general manager, who at first stated that he did not know the applicant, even though he had been at the company for more than ten years. During a call two hours later, the general manager said instead that he did know the applicant and verified the period during which she had worked at the company.
February 7, 2012: JERONIMO JOVITO DE SOUZA v. Canada (Minister of Citizenship and Immigration)
The Applicant was refused for lack of points. In particular, he was awarded fewer points for education than he had claimed.
The Visa Officer found that the Applicant’s higher secondary certificate was not a pre-requisite to his Diploma. As a result, the two years it took to obtain the certificate were not included in the calculation of total years of education. For this reason, the Visa Officer calculated that the Applicant had ten years of secondary education and three years of post-secondary education, for a total of thirteen years.
The Federal Court of Appeal has stated that, under subsection 78(4) of the Immigration and Refugee Protection Regulations (IRPR), that the Visa Officer must first look to the credential held by the Applicant. Where the Applicant has a credential, the Officer must then determine whether he has the number of years of full-time education required by the Immigration and Refugee Protection Act (IRPA). Where the Applicant does not have the required number of years, the Officer should award points equal to the number of years of education required in the section.
In this case, the Applicant does not have the required number of years of education required in order to be awarded 20 points. In consequence, according to subparagraph 78(2)(e)(i) of the IRPR, he must be awarded fifteen points. This is the same number of points that the Visa Officer awarded, although for a different reason. The Court concludes that it makes no sense to return the decision for reconsideration. Absent any breach of procedural fairness, there is nothing to be gained by such action. As a result, the application is dismissed.
February 9, 2012: Harminder Singh Dhillon vs. Canada (Minister of Citizenship and Immigration)
The application to sponsor the applicant as a dependent family member was dismissed, because the visa officer was not satisfied that the applicant was unable to be financially self-sufficient. The applicant is partially disabled, has never worked, and is currently financially dependent on his parents. The applicant assessed his disability at 70% and declared that he was unable to perform daily activities without assistance. He uses crutches in order to walk and is not able to board a bus. The visa officer determined that despite these mobility issues and his claim to the contrary, the applicant could accomplish most activities on his own. Factoring in his 12 years of schooling, she was not convinced that he would be unable to support himself financially due to his physical condition.
However, the officer failed to take into account the societal conditions in India, the applicant’s country of residence. People with disabilities in India are among the most excluded. Approximately 62% of them are unemployed. It is not enough for someone to be willing to work; someone also must be willing to hire them, and there is significant evidence of discrimination in hiring practices against those with disabilities in India.
The question the officer should have considered is whether the applicant is able to financially support himself where he lives, not whether his disability would prevent him from becoming self-sufficient in Canada. Therefore, the application for review is allowed.
February 15, 2012: Kulwant Kaur Sandhu vs. Canada (Minister of Citizenship and Immigration)
The visa officer in this case determined that the applicant had engaged in misrepresentation in her application by failing to state that her accompanying dependant was not her biological child, but was instead adopted. This fact was revealed when the visa officer requested a DNA test, at which time the applicant readily admitted that the child was not her biological daughter.
The applicant stated that she inadvertently left out this fact in an attempt to spare her daughter’s feelings, as the child did not know the truth. There is no evidence that the applicant attempted to conceal the exact nature of her relationship with her accompanying dependant, and no evidence was presented that she had been required to distinguish between a biological and adopted child.
Although it would have been better had she originally provided the adoption documents, this error should not mean the failure of her application. There is no basis for a finding of misrepresentation. Therefore the application for review is allowed.
March 2, 2012: Mariana Gangurean vs. Canada (Minister of Citizenship and Immigration)
In this case the visa officer determined that the applicant had entered into a marriage of convenience for immigration purposes. The officer noted many positive factors in the application, such as similar accounts of the couple’s first meeting, marriage proposal, wedding ceremony and living arrangements, as well as evidence of ongoing contact, joint medical coverage, and tax return information listing each other as spouses.
However, she also observed several discrepancies during the interview. One such discrepancy was their account of the day of the Vancouver riots, which had taken place only a month before the interview. The applicant stated that her husband arrived home around 9 or 10 pm, as his work closed early that evening. In contrast, her husband said he came home at 1 or 2 in the morning, having stayed late to ensure that windows were not smashed. As this first inconsistency pertained to a very notable event, the officer could reasonably expect that both the applicant and her husband would have similar accounts of where they were that night.
Other discrepancies noted by the visa officer were regarding simple events which had occurred in the days before the interview. These were also events that one could reasonably expect a couple to be consistent about. In addition, the officer noted that the applicant met her husband only two weeks after arriving in Canada and that they were married two and a half months later. The speed with which she met and married her husband, along with the contradictions mentioned above, led the officer to conclude that the marriage was entered into for immigration purposes.
The applicant argues that the officer ignored overwhelming evidence that the couple cohabitated and were interdependent, instead relying on trivial inconsistencies when reaching her decision. However, the discrepancies noted above are significant when assessing the daily life of a couple. It was open to the officer to find that the marriage was not bona fide. The decision falls within a range of acceptable outcomes which are defensible in respect of the facts and the law. Therefore the application for judicial review is dismissed.
March 5, 2012: Kun Young Alex Kim et. al. vs. Canada (Minister of Citizenship and Immigration)
The applicant entered Canada on a study permit, and remained in Canada after his visa expired. After marrying a Canadian woman and having two children, he applied for permanent residence to remain in Canada. However, he does not have a passport from his country of citizenship (South Korea) and his request for a waiver of this requirement was refused by the visa officer. He is applying for judicial review of this decision.
In order to renew his passport, the applicant would need to return to South Korea, where he would immediately be required to enter the armed forces and perform two years of military service. Given that his family is in Canada and he has a good paying job, the applicant is unwilling to return to South Korea and perform the military service.
It was determined that the applicant could also purchase a one-way ticket to South Korea, travel to the consulate in Vancouver, and obtain a travel document there which would satisfy the Canadian authorities without having the travel to South Korea. However, the applicant stated that the costs of this scenario were too high and requested another alternative. The visa officer was unwilling to waive the passport requirement, and therefore the permanent resident application was refused.
The applicant had two alternatives to his application being refused. He could have paid the financial cost of obtaining documents in Vancouver or chosen the commitment to two years of military service, but he declined to take advantage of either option available to him. Given this, the visa officer’s decision not to waive the passport requirement was reasonable, and the application for judicial review is dismissed.
March 14, 2012: Farha Farook Shirazi vs. Canada (Minister of Citizenship and Immigration)
The applicant submitted an application under the Federal Skilled Worker Class. Her application was denied for lack of points, as she only scored 65 of the minimum required 67 points. The central factor in this case is the number of points awarded for the applicant’s work experience; in this case, the visa officer only awarded the applicant 19 out of a possible 21 points in this category.
In the officer’s refusal, she stated that the applicant only provided two letters for her past employment that contained details of her duties. The officer determined that only one of these two letters confirmed that the applicant had performed a substantial number of duties listed under the National Occupation Classification (NOC) the applicant had selected (NOC 1241). However, the applicant asserts that an applicant does not need to perform all the duties set out in the NOC, and that her letter of employment from her other position show that she had indeed performed a number of duties as per NOC 1241.
While it may be at the discretion of each visa officer to evaluate an applicant’s work experience, the reasonableness of their decision stands on transparency and intelligibility. In her refusal letter, the officer simply stated that the applicant had not performed a substantial number of the main duties of NOC 1241. She did not provide an explanation of what duties she believed had not been performed and why. Because it is impossible to assess the reasoning behind the officer’s determination that the applicant did not perform enough of the duties outlined in the NOC the decision is neither transparent nor intelligible. The application for judicial review is therefore granted.
April 25, 2012: Newn Shin Li vs. Canada (Minister of Citizenship and Immigration)
The applicant’s application for a work permit was denied, as the visa officer found the applicant did not meet the necessary language and work experience requirements. The applicant is requesting that the visa officer’s decision be overturned and for his application to be reconsidered by a different officer.
The officer stated that the applicant did not provide proof that he met the English requirements outlined in the Labour Market Opinion (LMO). However, the applicant submitted school records showing his grades in English. There are no regulations which state that this type of document is unacceptable as proof of English for a LMO.
In addition, the officer believed that the applicant did not provide sufficient proof that he had the qualifications and experience necessary for his prospective job, specifically for cooking Indian / Chinese food (Hakka cuisine). However, the applicant is of both Chinese and Indian descent, and has a background working in a Chinese restaurant in India. As well, the duties listed in the LMO and those described in the applicant’s reference letters from previous employers were similar enough to indicate that he did in fact have adequate experience. Procedural fairness demands that the officer give the applicant an opportunity to respond to his concerns .As such, the application for judicial review is allowed, and the original decision has been/is to be set aside. The case will be referred to a different officer for consideration.
April 30, 2012: Xiao Yu Wang vs. Canada (Minister of Citizenship and Immigration)
The applicant came to Canada on a study permit, and remained in the country on additional study and work permits. She applied for permanent residency, but was denied because her husband was inadmissible to Canada on the basis of criminality. She then applied on humanitarian and compassionate grounds. This was also denied. The immigration officer believed that because her children would be able to obtain citizenship, attend school, receive medical care, and otherwise have their needs met in either China or Hungary, and because the spouse would also be able to obtain citizenship in either country, the family would not face unusual, undeserved or disproportionate hardship if they were to live in either of these places.
The officer also considered that the children were young enough to adjust to life in another country, and that the couple had significant material and personal resources to rely upon. However, the officer did not consider how difficult it would be for the applicant to obtained Hungarian citizenship. This process involves showing proof that she was fully employed there and passing a constitutional exam in Hungarian. For the children to become citizens of China the applicant would have to demonstrate that she was only living temporarily in Canada and had not settled permanently there. This may be difficult to do, as her intention has been to settle permanently in Canada.
The officer also failed to consider whether the applicant and her children would be subject to discrimination in Hungary, whether her spouse would be able to work in China, and the impact of China’s one-child policy on the family. In short, the officer failed to fully analyze the hardships that would face the family if they relocated to either country. Therefore the application for review is allowed.
May 3, 2012: Amarjeet Singh vs. Canada (Minister of Citizenship and Immigration)
The applicant was denied a study permit, and is requesting a judicial review of the visa officer’s decision. The visa officer was not satisfied that the applicant would leave Canada at the end of his studies given his travel history, immigration status, and family ties to Canada. He had no history of international travel, and he has temporary status in his country of residence (the UK) and did not demonstrate strong family ties to India, his country of birth.
The officer also considered the applicant’s general academic progression in her decision to refuse the application. At that time, he was studying towards a Bachelor’s Degree in the UK and had been accepted to a diploma program in Canada. The visa officer did not believe that it was logical for the applicant to undertake studies at a lower academic level than his current degree in progress. As well, the applicant was intending to leave the UK prior to completing his program of study there, and did not clearly explain why he was doing this.
It is understandable that the applicant feels he submitted strong evidence that he would leave Canada after completing his education. However given the factors mentioned above, it was reasonable for the visa officer to come to the conclusion that she did, and it is not the role of the court to second-guess visa officers who exercise their discretion soundly. Therefore the application for review is dismissed.
May 2, 2012: Nestor Diaz Ovalle vs. Canada (Minister of Citizenship and Immigration)
The applicant applied under the Federal Skilled Worker Class. He is HIV positive. A visa officer determined that the applicant was inadmissible to Canada on medical grounds, concluding that with his illness the applicant might cause excessive demands on Canadian health services. The applicant is requesting a review, stating that the officer failed to consider his detailed plan for managing his medical expenses.
The visa officer relied on the opinion of a medical doctor, who was concerned that the applicant would need both ongoing treatment with anti-retroviral drugs and close monitoring. The applicant was given a chance to submit his plan to offset the demand he might impose on Canadian services. He responded by providing information from his doctor, which demonstrated he had been responding well to the anti-retroviral treatments he had been receiving since 2001. If the treatment continued, he was likely to be in good health for the next 5 to 10 years. His medications are being provided by a non-profit organization, which would continue to offer this service indefinitely even after the applicant’s move to Canada, and his prospective Canadian employer stated that he would be covered under the company healthcare plan. A clinic in Canada stated that the applicant should have a life expectancy similar to an HIV negative person, and that his demands on the public health care system would be minimal.
All of this information was forwarded to a medical officer, who additionally noted that the applicant’s diagnosis and prognosis had not changed. The visa officer relied on this opinion to conclude that the applicant was inadmissible to Canada on medical grounds. However, neither the applicant’s prognosis nor his diagnosis was being contested. The issue at hand was whether the applicant would impose an excessive demand on Canadian resources, an issue which was not addressed by the visa officer in his reasons for refusal. Without an acknowledgement of this central factor it is not possible to determine why the officer concluded that the applicant’s plan was unsatisfactory. Therefore, the application for review is allowed and another officer will reconsider the applicant’s application.
June 5, 2012: Tarek Anabtawi vs. Canada (Minister of Citizenship and Immigration)
The applicant applied under the Canadian Experience Class. He first came to Canada on a study permit, and later worked at a recruitment company on a post-graduate work permit. His application was refused as the officer determined that he did not meet the skilled work experience requirement. The applicant is requesting that this decision be quashed and the matter sent back to another officer for reconsideration.
The applicant submitted a reference letter stating that he performed the duties of a human resources officer, under the National Occupation Classification (NOC) 1223. However, when the visa officer reviewing his application called his employer in Canada to confirm the details, the employer’s description of the applicant’s duties diverged significantly from the applicant’s stated job description. According to the employer, the applicant was a customer service representative, and his duties involved answering phones, receiving applications and opening files. The employer also stated that the office had three employees, while the applicant had stated that it had forty employees.
Due to these inconsistencies, the officer contacted the applicant and informed him of his concern that the applicant’s main duties were not those of a human resources officer. In response the applicant explained the functions he performed at his job in Canada, which he believed fulfilled the requirements of the NOC he selected. He also explained that while the office had three employees, the company sent more than forty temporary workers to other companies. Nonetheless, the officer refused the application. In the refusal letter, the officer stated that he was not convinced that the applicant performed all of the essential duties and a substantial number of the main duties of a human resources officer.
The applicant claims that the visa officer applied the wrong standard when determining whether or not he worked as a human resources officer, specifically, that the officer used the standard from the Federal Skilled Worker Class. He also asserts that the officer did not explain why the evidence submitted was not sufficient, and did not provide the applicant with a suitable opportunity to respond to the officer’s concerns.
The regulations for the Canadian Experience Class do not provide a precise test to determine the twelve months of skilled work experience in Canada. The officer therefore had to look elsewhere in the regulations for direction on how to evaluate the applicant’s work experience. In addition, both the earlier email from the officer and the subsequent refusal letter clearly state why the evidence presented was deemed insufficient, namely the contradictions between the documents submitted and the phone call with the Canadian employer. Finally, the officer was not required to request an interview to give the applicant an opportunity to respond to his concerns. He gave the applicant the opportunity to respond in writing, and was not satisfied with the explanation provided. Visa officers are under no obligation to conduct interviews or alert applicants of their concerns when the concerns arise directly from the applicant’s own evidence or statutory requirements.
The officer applied the correct standard when evaluating the applicant’s work experience, and was not required to explain his concerns in greater detail or grant the applicant an interview. Therefore the application for judicial review is dismissed.
June 6, 2012: Sarabjit Singh Sekhon vs. Canada (Minister of Citizenship and Immigration)
The applicant applied for permanent residence as a skilled worker. He had been teaching Punjabi on a temporary work permit in Ontario and had an offer of continued employment. However, the visa officer who reviewed his application was not convinced that the offer was genuine or that the applicant’s employer was in fact conducting business at the address indicated. The officer was not satisfied with the additional documents requested from and provided by the applicant, and the application was refused.
The applicant is requesting a judicial review on the grounds that the officer’s decision relied on concerns which she did not relay to the applicant. The officer raised several concerns, including the fact that the applicant was not on payroll until later in his employment and that his tax statement seemed to reflect a working week of 24 hours rather than full time. In response to these issues, the applicant submitted documents showing that his income was reduced because of time taken off for illness and that payroll deductions had not been made due to an accounting error. The applicant also provided letters from parents and photographs of the school where he taught.
However, the officer did not accept the explanation from the accountant regarding the payroll error, and concluded that the evidence provided did not demonstrate that the parents had paid tuition or that the students had received instruction in a real classroom.
While the Minister argued that the applicant was given opportunity to address the visa officer’s concerns about the genuineness of his job, the court disagreed. According to the notes made by the officer, she had more specific concerns which the applicant should have been aware of. The officer questioned the location of the school and its ability to pay the applicant’s salary. She also had concerns about the school’s late tax remittances, the lack of a business registration, and the absence of an updated job offer. If the applicant had been made aware of these concerns, he could have addressed them with further documentation. The application is allowed.
June 28, 2012: Zafar Chaudhary vs. Canada (Minister of Citizenship and Immigration)
The applicant applied for permanent residence under the Family Class, as the spouse of a permanent resident in Canada. To apply under this category, one must be the spouse or common-law partner of the sponsor and have been living with that sponsor in Canada. The officer reviewing these applications can conclude that the applicant is not a spouse because the marriage is not genuine, or that the marriage is genuine but there is no cohabitation.
Unbeknownst to either the applicant or his spouse, an anonymous person had informed Citizenship and Immigration Canada that the marriage might not be genuine. This prompted an investigation during which the reviewing officer interviewed the applicant and his spouse separately. The officer’s notes from the interview declared that she believed the marriage was not genuine, and that the applicant and his spouse had not proven they are financially, emotionally and physically dependent on each other. However, in the refusal letter, the officer stated that application was refused because she had determined that the applicant did not cohabit with his spouse in Canada. The refusal letter did not mention the genuineness of the marriage.
It is impossible from the refusal letter or the officer’s notes to determine why she came to the conclusion that the couple in question was not cohabitating. The disparity between the officer’s notes and her refusal letter and the apparent lack of any serious analysis of the cohabitation of the applicant and his spouse make her decision unintelligible. Therefore the application for judicial review is allowed, and the case will be reviewed by another officer.
July 5, 2012: Gurinder Singh vs. Canada (Minister of Citizenship and Immigration)
The applicant submitted an application under the Federal Skilled Worker Class. In this application, he indicated that his maternal grandparents were permanent residents and his maternal uncle was a Canadian citizen, and that these relatives lived together in British Columbia. As proof of this, he submitted affidavits from his relatives attesting to their relationship to the applicant and their residency in Canada, permanent resident cards for his grandparents, and the Canadian passport of his maternal uncle. The visa officer did not award points for having a relative in Canada, and the application was refused for a lack of points. The applicant is requesting that the officer’s decision be quashed and the matter sent to another officer for reconsideration.
In the refusal letter, the officer stated that no points were awarded for a relative in Canada because no documents were provided to link the relatives with either of the applicant’s parents. In addition, no evidence was submitted to prove the relatives were living in Canada. The applicant claims that the evidence submitted should have been sufficient to award the points for having a relative in Canada, and that he should have been given a chance to respond to the officer’s concerns before his application was refused.
The affidavits submitted by the applicant were not supported with corroborating evidence and therefore cannot be given much weight. The other evidence submitted did not demonstrate the relationship to the applicant or that the relatives resided in Canada. Furthermore, the officer is not required to inform the applicant regarding concerns that arise directly from the requirements of the legislation which do not pertain to the authenticity of the documents submitted. The applicant had prior knowledge of the application requirements, in the form of the document checklist. To receive adaptability points for a relative in Canada, the checklist clearly states that proof of relationship, such as birth, marriage, or adoption certificates must be submitted. The application for judicial review is dismissed.
July 13, 2012: Pamela Osorio vs. Canada (Minister of Citizenship and Immigration)
The applicant submitted an application for permanent residence, having received a job offer as an office administrator at a drycleaners in Alberta. However, the immigration officer reviewing her application concluded that the job offer was not genuine and denied her application.
The officer had several concerns about the applicant’s job offer. First, according to the officer it did not make sense for the applicant to leave the Philippines, where she was running several family businesses, and take up a lower-paying job in Canada. The officer also believed the applicant’s knowledge of the job was limited and expressed concerns that she had not been in contact with her employer for ten months.
However, the officer overlooked the evidence available to her which supported the applicant’s intentions to take up the job being offered. The applicant desired to start over in Canada and have a more balanced life. She wished to raise her family in a small community, to have more time for her family and to experience less stress. While the job in Canada was lower-paying, it also offered her a 9 to 5 schedule which would leave her weekends free. Her current job demanded her full-time attention. She had friends in Canada who had achieved this balance of family and work. While the United States and Australia were also options, she specifically wished to go to Canada for these opportunities.
Her knowledge of the job included the fact that the dry cleaning business had two locations, the approximate number of employees in each location, the number of competing dry cleaners in the area of the branch where she would be working, and she had knowledge of her expected duties. She was also aware that the position was available because the owner, who was currently performing this role, was having a baby and needed help. While the applicant does not have direct experience in the dry cleaning industry her job would be administrative, similar to the duties she is currently undertaking in the Philippines.
She also had some knowledge of the area in which she would be living, although she had never visited. In addition, a few days before her interview the applicant received a second letter from her employer confirming the job offer. Given these facts, it is difficult to determine why the officer had ongoing doubts regarding the applicant’s reasons for being interested in the job, her knowledge of the job and her destination. The officer did not explain why the evidence submitted was insufficient to alleviate her concerns. The officer’s decision is determined to be unreasonable because it was not justified, intelligible, or transparent, and so the application is allowed.
August 28, 2012: Michael Gordon Westmore vs. Canada (Minister of Citizenship and Immigration)
The applicant’s application for permanent residence on humanitarian and compassionate grounds was refused and he requested a judicial review. The applicant submitted an application under spousal sponsorship in 2004 once same-sex spousal sponsorships were allowed. He had been in a common-law relationship since 1985, and he and his partner split their time between staying in Canada and living in the UK (his country of citizenship) in order to maintain the applicant’s visitor status. Before the application for sponsorship could be finalized, the sponsor fell ill and died.
The applicant subsequently applied under humanitarian and compassionate grounds, and was granted preliminary approval. However, as he neglected to submit medical information, the application was refused as incomplete. The applicant then submitted another application, similar to the first. The applicant emphasized his establishment in Canada and his lack of links to the UK. As the applicant is blind, he would need to remain in Canada to have access services provided by the Canadian National Institute for the Blind (CNIB). The officer reviewing his second application concluded that the applicant would not suffer disproportionate hardship if he was to submit his application from outside Canada. There was little to suggest he could not simply continue as he had been for many years, maintaining his visitor status in Canada and returning to the UK periodically.
However, the officer ignored the evidence in the application form that spoke to the applicant’s lack of a support system. He listed no family members living in Canada, and stated that he had no friends or family in the UK. He also indicated that all his friends and support networks were in Canada, implying that none existed in the UK. These forms include a declaration by the applicant that all information provided is true and correct. This constituted sworn evidence before the officer pertaining to lack of support in the UK. The officer did not explain why this evidence was insufficient, and so the application is allowed.
August 29, 2012: Mihaela Maxim vs. Canada (Minister of Citizenship and Immigration)
The applicant was submitting an application under the live-in caregiver program, and was granted an interview to obtain a work permit. She argues that the officer was disrespectful and aggressive during this interview. The officer selected the applicant to go through additional security checks before attending her interview. The applicant states that the officer implied she was a bad mother for leaving her child behind and also that she had been working illegally in Canada. According to the applicant, the officer spoke French in a strong accent and ridiculed the applicant for not understanding, and repeated phrases questioning the applicant’s credibility.
In support of her work experience as a caregiver, the applicant submitted one handwritten letter, which the officer did not find reliable. The officer also noted several discrepancies in the applicant’s employment documents, and indicated that the explanation provided by the applicant during the interview was not satisfactory. The applicant declared that she had been living away from her family to learn French, but could not answer a simple question when asked. It was reasonable for the officer to determine that the applicant had not demonstrated her work experience as a live-in caregiver.
Although the interview may have been an unpleasant experience for the applicant, and the officer may not have appeared to be polite or courteous, this is not enough to declare bias. The officer had no vested interest in the outcome of this work permit application, and was required to ask questions pertaining to the possibility that the applicant worked illegally in Canada. A foreign national who has worked in Canada illegally cannot be issued a work permit. These questions were not a personal attack on the applicant, but simply part of the procedure. Furthermore, the work permit application was rejected because the officer did not believe the applicant had the necessary work experience for the live-in caregiver program, not because the officer thought the applicant worked illegally in Canada. Finally, the applicant did not bring up her concerns about the officer’s bias during the interview, which amounts to an implied waiver of her right to raise the issue at this stage. Therefore the application is dismissed.
September 10, 2012: Shilpi Sablok vs. Canada (Minister of Citizenship and Immigration)
The applicant submitted her application under the Federal Skilled Worker Class, as a college / vocational instructor. She claimed to work at a computer college run by her husband. This work experience was called into question, as there were several discrepancies between the documents provided with her application and the information obtained during a telephone verification call with the employer, her husband. For example, her employer stated that the school had 25 to 60 students, while the applicant said it was around 200. When questioned about this discrepancy, the applicant explained that the smaller number was long-term students, and the number she provided reflected “overall strength”. This explanation was not accepted by the officer. Other discrepancies included the number of classrooms and computers at the school.
While the applicant provided further documents, these did not overcome the officer’s concerns raised by the contradicting information received during the telephone verification call. In addition, since the employer is her husband, she has easy access to office stationary, including letterhead and stamps. The applicant claims that she was not given a fair opportunity to respond to the concerns of the officer, namely that her employer was her husband. The applicant also claimed that the documents she submitted were seen as tainted by the marriage to her employer and this is why they were not accepted. However, the marriage to her employer was a fact, and was appropriately considered by the officer. The employer documents were not given more weight than the verbal responses by her husband, which contradicted with the information the applicant provided. Therefore the application is dismissed.
September 13, 2012: Xiao Feng Tan vs. Canada (Minister of Citizenship and Immigration)
The applicant applied under the Federal Skilled Worker Class, with arranged employment. His application was denied because the visa officer determined he did not have sufficient English language abilities to perform his arranged employment as a cook in Canada and to become economically established. The officer used higher standards to assess the applicant’s language than those specified in the Arranged Employment Offer (AEO), which only listed basic oral English skills as required for the position.
The officer found that the employer would not be able to guarantee that an English speaking person would be present in the kitchen at all times. Therefore, the officer presumed that the applicant needed sufficient English proficiency to be able to read safety instructions and to communicate with authorities in case of accidents or emergencies. While these skills are important and applicable to most jobs, they were not included as requirements in the AEO. The officer therefore erred by incorporating those requirements and by denying the applicant’s permanent residence application on this basis. This error alters the number of points the applicant would have received. Therefore, the application for review is allowed.
October 25, 2012: Parivash Mansouri vs. Canada (Minister of Citizenship and Immigration)
The applicant’s application under the Federal Skilled Worker Class was rejected because it fell four points short of the required 67 points. If the officer had accepted the evidence that the applicant had a brother in Canada, she would have been awarded five additional points, and the application would have been successful. Just three days after receiving the negative decision, the applicant’s immigration consultant sent out further documents demonstrating that the brother lived in Canada.
The visa officer refused to reconsider the application, stating that it was processed in a procedurally and administratively fair manner. This reasoning suggests that the officer would only have re-opened the application if she believed that she had been unfair. It would be unlikely for her to acknowledge this; she is not in a position to view her discretion objectively. There are many valid reasons to deny the request for reconsideration, including fairness to more diligent applicants or the efficiency and effectiveness of the system. These were not stated in the visa officer’s decision. The matter will be reviewed by another officer, who will accept the original points awarded, and consider the evidence of the relative in Canada.
October 15, 2012: Saleem Rasheed Khames vs. Canada (Minister of Citizenship and Immigration)
The applicant submitted an application under family sponsorship. In a previous refugee claim, there were questions raised about whether or not he was a citizen of Somalia as he had claimed. The applicant did not produce documentation proving his citizenship, claiming that Somalia has not had a functioning government since 1990 and is unable to issue such documents. The Refugee Protection Division was not satisfied that his knowledge of Somalia went beyond what would be available from public sources. Additionally, the results of the linguistic analysis from this application concluded that he was most likely from Tanzania. His refugee application was therefore refused.
Several years later the applicant married a Canadian citizen and applied under family sponsorship. Their marriage was accepted as genuine. However, the applicant was asked to provide documents establishing his Somali citizenship which he once again failed to do, and so the application was refused.
The officer put considerable weight into the applicant’s language analysis report (conducted by Sprakab), and found it was discrediting to the applicant's claim to being a citizen of Somalia. The officer erred in relying on this report without considering its internal errors. For one thing, the interpreter was constantly interrupting the applicant. The officer noted that the recording took place for approximately 40 minutes, but the Sprakab report notes the recording was 24 minutes in length. The Sprakab report states that its analysts must have, at minimum, a bachelor's degree in linguistics, but the person responsible for the interview had a degree in language instruction instead. The results of the report are questionable, if not seriously flawed, and it is unreasonable that the officer relied so heavily on this document. Sprakab has also been the object of academic criticism. A linguist specialized in African languages has observed that Sprakab interpreters, translators or linguists are not always sure of the difference between Somali and Kibajuni. The application for judicial review is allowed.
November 7, 2012: Gurpreet Singh et. al. vs. Canada (Minister of Citizenship and Immigration)
The applicants (husband, wife, biological daughter, and adopted son) applied for permanent residence under the Live-In Caregiver Class because the wife is a live-in caregiver in Canada. The officer did not believe that the son was the adopted child of the adult applicants and therefore removed him from the application. The officer noted that although a copy of the adoption deed and the son’s birth certificate had been submitted, the birth certificate had been registered only recently. In addition, there was an absence of family photos showing the son and photos of the adoption ceremony.
Due to these concerns, the officer arranged for an interview with the husband. The wife was called in Canada during the interview. The husband stated that it was his wife’s idea to include the adopted son in the application to help him. During the interview, the husband also stated that the birth father was not present during the adoption ceremony, and that the child lived with his birth father until his death approximately four months prior. When his wife was called in Canada and when she insisted that the son be included in the application, the husband told her to stop being stubborn and to drop the idea of helping the child.
About two weeks later, the husband sent a letter to the High Commission in New Delhi declaring that he had no objection to the deleting of his adopted son from the application. The applicants state that the officer made a mistake by calling into question the court-issued adoption deed, and that the officer had bullied and frightened the husband during the interview, and had put words into his mouth. However, the adoption deed was also cast into doubt by other evidence, such as the husband’s statement that adopting the son to bring him to Canada had been his wife’s idea. The only evidence of bullying submitted was the wife’s affidavit, which is hearsay. The applicants maintain that the letter the husband submitted is proof that he was bullied by the officer, but this letter can also be seen as evidence of someone who has realized that he will not get the outcome he hoped for, and wishes for his family to be reunited in Canada. Therefore the application for judicial review is dismissed.
November 9, 2012: Sina Yohannes Russom et. al. vs. Canada (Minister of Citizenship and Immigration)
The applicant applied for a work permit under the live-in caregiver category and was refused. The request for judicial review of this decision was granted, and the application was sent back for reconsideration by a different visa officer. The new visa officer requested an interview. During the interview, the applicant was asked several questions, including common symptoms of children’s allergic reactions to insect bites and the treatment for such bites, as well as the proper method for taking an infant’s temperature.
To the first question, the applicant responded that fever and continuous crying were symptoms of an allergic reaction, but that she had never encountered this issue in her experience caring for children. To the second question, the applicant responded that she would use a thermometer, but did not add anything about the method she might use. The officer was not satisfied with these responses and refused the work permit application.
While the officer has the prerogative to consider and weigh the answers given by the applicant during the interview, he does not have unrestricted authority to probe the requirements of her employment without an objective basis, relying instead on his own questionable benchmark. The lack of impartial standards used in assessing the applicant’s capacity to perform her intended employment led the officer to an unreasonable conclusion, and therefore the application for judicial review is allowed.