Changes are necessary: individuals who have been convicted of serious offences in Canada, are awaiting deportation, and have evaded it by absconding, should not be released. These are not "normal" cases of people fighting to stay, but rather are cases that have a serious criminality twist. There is no good societal purpose being served by allowing the "cat and mouse" game of revolving door hearings and continuous attempts to launch juridical review interventions and applications for consideration financed by the public purse after they have demonstrated with their conduct that they are unwilling to abide by tribunals and court orders. Immigration law is perhaps the only area of law where people are ordered by tribunals are boards to leave, but the decision is always subject to "one more try"...so the policy message is "I order you to leave....just kidding". Allowing this revolving door policy to continue is not only a costly exercise that diverts significant resources from more meritorious cases, but also an insult to those who try to remain in Canada as productive citizens and have demonstrated exemplary conduct.
Ottawa considers changing law to keep suspected fugitives behind bars The Canadian Press
Published Tuesday, Aug. 30, 2011 6:43PM EDT
Last updated Tuesday, Aug. 30, 2011 8:02PM EDTc
The release on bail of a violent fugitive who was included on a “most wanted” list has the federal Public Safety Minister thinking about changing the law.
Walter Ernesto Guzman of El Salvador was ordered released last week on $3,000 cash bond after appearing before the Immigration and Refugee Board.
Mr. Guzman, who was in the country illegally after being convicted of drug trafficking, assault and other serious offences, surrendered to Montreal police Aug. 19.
Vic Toews says the Immigration and Refugee Protection Act is geared too much toward releasing people who are to be deported, putting the onus on government to prove that those in custody are a danger to the public, a flight risk or both.
“Quite frankly, I think we need to examine that legislation to see whether that kind of a presumption is in fact appropriate in cases where individuals have been convicted of serious criminality in this country, who are under a removal order and who have evaded arrest in some cases for years,” Mr. Toews said when asked about the Guzman case.
Mr. Toews was also critical of the Immigration and Refugee Board, saying too many of the board's decisions are overturned by the courts.
“The federal court has overturned a number of the decisions of the IRB in this kind of a context,” Mr. Toews noted.
“So whether it's just IRB adjudicators making decisions that aren't supported in law as the federal court has found or whether there needs to be changes to the legislation is something my staff is looking at now.”
Mr. Guzman was among three suspects with lengthy criminal records who were arrested within 24 hours after the Canada Border Services Agency posted online mug shots of 32 dangerous foreign criminals.
The pictures were included in a new section of the “Wanted by the CBSA” page on the agency's website.
All are wanted on Canada-wide removal warrants, while many on the list could not be found after they finished serving time in custody.
Almost everyone on the list has multiple convictions, with assault-related offences the most common infraction. And they come from all over the world, including China, Europe, Latin America and Africa.
Canada deported more than 15,000 people last year, including 1,800 who were associated with criminal acts or involved in committing crimes.
The Montreal Gazette has it it right. The plan proposed by this Quebec politician is the type of misplaced nationalism that has contributed to the steady decline of Quebec in Canada. Mr. Legault needs to realize that, rather than forcing people to speak French and implement policies that drive business away, he needs to talk about the complete failure of Quebec's immigration that results in the use of the program as a gateway to the rest of Canada: many immigrants under the Quebec program land in the province and leave immediately for Ontario and the West, they have no interest in living in a province with high taxes and a "language police".
The Gazette's View: François Legault’s immigration plan needs some scrutiny
Montreal GazetteAugust 30, 2011
MONTREAL - François Legault, who stands a good chance of becoming Quebec’s next premier if he manages to organize a functional political party before too much longer, got it right this week when he said that integration of immigrants into Quebec society would be a priority should he come to head a government.
What is debatable is his suggestion that to properly effect improvements in this area, a sharp reduction in the number of immigrants that Quebec takes in is advisable.
As it is, Quebec has the greatest need of any Canadian province for an influx of immigrants to compensate for the aging of its current population.
Yet it is doing the poorest job of any jurisdiction in the country in integrating immigrants into its workforce.
The Institut de la statistique du Québec forecasts that beginning just two years from now, Quebec will experience a decline in its working-age population – those age 15 to 64 – and that by 2016 the number of workers per retired person will fall to 3.7. That’s down from the current 4.5, which itself is half the ratio 40 years ago. By 2026 it is expected to be down to 2.6 workers for every retiree.
So Quebec clearly needs not just immigrants, but immigrants with jobs.
Yet the unemployment rate among immigrants in Quebec is not only twice that of the overall provincial population, as Legault noted in his policy statement, but also roughly twice that of immigrants in Canada as a whole.
To meet the challenge of alleviating this deplorable situation, Legault proposes on the one hand to double to $125 million a year the budget for facilitating the employment of immigrants and their integration into Quebec society, something he rightly identifies as being crucial to the future of French in the province.
On the other, he advocates that for a two-year period the number of immigrants Quebec takes in be reduced to 45,000 from the present 54,000, something he maintains will enable the government to better get its integration programs up to scratch.
There may be sound reason for cutting immigrant numbers for a period – the governing Liberals also propose an interim reduction, to 50,000 a year – but there is also room for suspicion that Legault’s further reduction is less a practical proposition than pandering to xenophobic elements in Quebec society that view immigrants with apprehension, if not outright hostility. Similarly, a shortage of funding for integration programs is not necessarily the main problem.
The need to reduce immigrant numbers is challenged by no less than Conrad Ouellon, president of the Conseil supérieur de la langue française, as well as the Montreal Board of Trade, which advocates an increase to 65,000 in the annual intake. Yves-Thomas Dorval of the Conseil du patronat suggests that the key to integration is better recognition of the foreign experience and diplomas that immigrants bring with them, as well as better co-ordination of selection with the needs of the province’s job market.
Legault might have helped his credibility had he also cited one of the glaring problems with immigrant integration today, which is the deplorable employment record of Quebec’s public institutions, both municipal and provincial. While these should be in the vanguard of integrating newcomers, the number of ethnic and visible-minority people they employ lags far behind those groups’ percentage of the population.
It is encouraging to see that Legault recognizes the importance of the problem, but his proposed solutions need close scrutiny and clearer explanation than he has offered so far.
Excellent story below. I have been arguing for years that the immigration categories need to be reset to give priority to people whose skills allow them to find jobs quickly. Kudos to the Queen's University researchers and to Rachel Mendleson for writing the story in the Huffington Post. Sadly, politicians are unwilling to retool the system to eliminate economically unproductive categories of migrants, so they can concentrate on those whose skills are required by employers.
Immigration To Canada: Focus On Economic Immigrants, Researchers Urge
First Posted: 8/30/11 06:56 AM ET Updated: 8/30/11 06:56 AM ET
As Citizenship and Immigration Canada conducts ongoing public consultations on the mix and number of immigrants the country should take in, a pioneering study has offered a powerful argument for prioritizing “skill-assessed economic immigrants,” whose earnings levels, the study has found, far exceed those of other kinds of immigrants.
Motivated in part by the rapid rise in the overall level of immigration, which has continued despite the economic downturn, as well as changes in the type of immigrants admitted, a pair of Queen’s University economists are weighing on several contentious aspects of Canadian immigration policy just as that policy is being reviewed.
Their working paper on the differences in earnings across different categories of immigrants in Canada, which was released this month through the Canadian Labour Market and Skills Researcher Network, found that economic immigrants, whose admission is determined by a points system that measures education and experience, had median earnings that were as much as 56 per cent higher than other classes of immigrants.
A recession, meanwhile, was shown to have “very marked and long-lasting scarring effects” on the earning power of immigrants of all stripes.
Commonsense though the findings may seem, rarely have they been so definitive. In an effort to gauge how well immigrants are integrating into the Canadian labour market, Michael Abbott and Charles Beach tapped CIC for a decade’s worth of annual earning data for all immigrants that arrived as landed immigrants in 1982, 1988 and 1994.
“It’s not a sample. It consists of the totality of all immigrants who have arrived in … those respective years,” Beach told The Huffington Post. “That makes it really quite large and, if you wish, more reliable than any other study that’s out there.”
By comparing the annual earnings of four different classes of immigrants -- economic immigrants, those who accompanied them, family class immigrants, and refugees -- the researchers were able to quantify just how much skills matter.
What they found was that the 10-year median earnings levels of economic migrants significantly exceeded those of the other classes -- between 30 and 37 per cent higher for men, and between 39 and 56 per cent higher for women.
The study found that refugees and family class immigrants -- those who came to join family already here -- had the lowest earnings levels. The real earning levels of refugees declined over the each successive cohort, suggesting that it got more difficult over time for this group to make ends meet.
But regardless of their skill level, immigrants felt the sting of recession. In 1990-1991, there was a decline in the median real earnings of male immigrants in all four admission categories in both the 1982 and 1988 cohorts. Meanwhile, those who arrived in 1994 experienced relatively low initial annual earnings, suggesting that the downturn continued to take a toll on immigrants, even after it was officially over.
A similar trend was observed in the aftermath of the recession in the early 1980s for those who arrived in 1982.
“That was actually a bit surprising to us,” says Beach of the effect of recession on immigrant earnings. “Perhaps it shouldn’t be, because there’s an of old rule of thumb in labour economics that says, ‘Last in, first out.’ If a recession comes along, and people get laid off on the whole, it’s the most recently hired, people with less tenure or seniority in the firm. And immigrants in general are people who have recently arrived.”
It’s a finding he says should prompt policymakers to consider reducing the number of immigrants admitted during tough economic times.
“In this recent recession and period of slow growth, that’s not what’s happened. The tap not only has been kept on, it’s been increased,” he says, adding that there has also been a growing number of newcomers admitted as foreign temporary workers and provincial nominees.
Total immigration to Canada has risen from 84,000 in 1985 to more than 280,000 in 2010, the highest number in more than half a century.
Immigration numbers vary from year to year, but they have been on an upward trend for decades, and last year’s 281,000 arrivals was the highest number since 1957, when Canada took in 282,000 immigrants.
Family class immigrants currently make up 26 per cent of those admitted; immigrants chosen for their economic potential, meanwhile, make up about 30 per cent.
Beach says the outcomes of skill-assessed economic immigrants is a testament to their relative success -- and the fact that the proportion of those admitted under that category should not be reduced.
“If we want to get immigrants to do well in Canada, that category is the one [that] does consistently better than the others,” he says.
But changing the mix of immigrants Canada takes in could have a political cost. Earlier this year, Immigration Minister Jason Kenney came under fire after reports showed that CIC was planning to reduce the number of family reunification visas by five per cent in 2012.
On Monday, Kenney’s ministry launched an online online questionnaire -- the department’s latest attempt to get public input on the appropriate mix of immigrants.
“The online consultation provides an important opportunity to gather input from stakeholders and the public on key questions facing CIC,” says Minister Jason Kenney. “This is also a chance to highlight some of the considerations and difficult choices involved in managing a global immigration system.”
Immigration lawyer Sergio Karas (ALEX UROSEVIC, Toronto Sun) Giving failed refugee claimants thousands of dollars to return home could make Canada’s “broken” immigration system vulnerable to even more abuse, says an immigration expert.
Herbert Grubel, of the Fraser Institute, called the federal government’s plan to give failed refugee claimants $2,000 each as incentive to leave Canada promptly will attract fraudulent claimants and unscrupulous immigration consultants looking for a payday.
“The idea is right, but ... it will also create the wrong incentive, (with) more people coming here and making claims they know are questionable,” said Grubel, who recently wrote a paper on the “huge fiscal burden” immigrants have on Canadians.
The Canadian government plans next June to implement the Assisted Voluntary Returns program, where failed claimants in a 2012 pilot project will receive a financial incentive of $2,000 to leave Canada.
The money would be sent to a non-governmental organization in a failed refugee’s respective country, according to the plan. The organization would provide the cash to the claimant upon their return to use for business pursuits, education or vocational training, confirmed a spokesman for Immigration Minister Jason Kenney.
The project will be aimed at more than 1,900 failed claimants, costing taxpayers $12 million.
Grubel conceded the plan might “get some people to go back home who would otherwise hang around and burden our justice system.” However, he argued there’s no telling how many more will take advantage of Canada’s healthcare and welfare systems while they wait for a decision by the Immigration and Refugee Board.
Immigration lawyer Sergio Karas called the program a slap in the face to the process.
“This is bad policy because it undermines the rule of law,” Karas said. “People who have had the right to due process, have gone through the system and have been determined to not to have a valid claim should not be paid for obeying a deportation order.”
Karas insisted such a program will attract scammers looking to cash in. The United Kingdom’s controversial incentive program is a good example, he said.
The United Kingdom’s Daily Mail reported in 2007 that failed refugee claimants had been receiving over $6,400 each to return to their country of origin. After returning home, some used the money to open businesses such as a beauty salon, a vineyard and an ostrich farm.
The new refugee reforms will also bring a program to pay $ 2,000 to failed refugee claimants who leave voluntarily. Similar programs exist ( and already failed) for years in some European countries. This is simply bad policy, as it encourages people to make false claims, and then rewards them for it,. Why should compliance with the law need to be rewarded with taxpayer dollars? In addition, where re the safeguards to prevent people from taking advantage of the program? This could be a new Monopoly box:"failed refugee claim, collect cash". Simply stupid.
Suspicion of not genuine offer of Arranged Employment, court confirms refusal as "reasonable" based on evidence, "exaggerations".
Zhong v. Canada (Minister of Citizenship and Immigration)
Between
Jin Zhong, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1206
2011 FC 980
Docket IMM-7356-10
Federal Court
Toronto, Ontario
Russell J.
Heard: June 16, 2011.
Judgment: August 9, 2011.
(41 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 RUSSELL J.:-- This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the decision of a Designated Immigration Officer (Officer) of the Canadian Consulate General in Hong Kong, dated 30 September 2010 (Decision), which refused the Applicant's application for permanent residence as a member of the federal skilled worker program.
BACKGROUND
2 In February 2009 the Applicant, through an immigration consultant, filed with the Centralized Intake Unit of Citizenship and Immigration Canada (CIU) an application for permanent residence as a member of the skilled worker program in the occupation of Information Systems Manager (NOC 0213). That same month, CIU advised the Applicant through the immigration consultant that he should submit a complete application to the Consulate General of Canada in Hong Kong (Consulate General). He complied with that request on or about 10 June 2009.
3 The complete application included a positive Arranged Employment Opinion from Service Canada, confirming the offer of permanent employment to the Applicant from Mr. Ping Hay Szeto, owner of Gip Sing International Ltd. (Gip Sing) in Oakville, Ontario.
4 By letter dated 30 September 2010, the Designated Immigration Officer (Officer) of the Consulate General rejected the application for permanent residence based on the Applicant's failure to meet the 67-point minimum required for success. The Officer had awarded no points to the Applicant for his Arranged Employment in Canada, having found that that the offer of employment from Mr. Szeto was not genuine and that the Applicant was not likely to accept and carry out this employment in Canada. This is the Decision under review.
DECISION UNDER REVIEW
5 The Officer states in her Decision that she assessed the Applicant based on all documentation and information submitted with the application. Of material importance was the letter, dated 28 January 2010, from the Applicant's prospective Canadian employer, Mr. Szeto, detailing the nature and the size of his property management business in Oakville. The Officer made the following findings based on the information provided in this letter:
• [T]he fact that he appears to be the only company executive in his property management business and he is operating the said business from his own cellphone [sic] and residential telephone numbers, I am not satisfied that your prospective Canadian employer genuinely requires you to perform the list of employment duties for his property management company as stated in your Canadian employment offer letter dated 30 March 2009 and in his explanation letter dated 28 January 2010 to this office. I have reasonable grounds to believe the employment duties stated in those two letters have been exaggerated for the purpose of facilitating your application for immigration to Canada under the Federal Skilled Worker's Arranged Employment immigration category. I am, therefore, not satisfied that you have a genuine offer of employment in Canada nor am I satisfied that you are likely to accept and carry out the said employment in Canada. As a result I have not assigned any points to you under the Arranged Employment factor when assessing your application. You have obtained insufficient points to qualify for immigration to Canada, the minimum requirement being 67 points. You have not obtained sufficient points to satisfy me that you will be able to become economically established in Canada.
6 In December 2009, the Officer sent to Mr. Szeto a letter requesting the following:
• Documentation demonstrating that your company possesses sufficient resources to employ the applicant should permanent residence be granted. Please provide Company's latest Notice of Assessment and Revenue Canada's documentation and records to show the total number of staff employed by this company in the past 12 months or fiscal year, and proof of business office and business activities/projects at 579 Kerr Street in Oakville.
Mr. Szeto responded to this request for information in two separate letters, both dated 28 January 2010.
7 The Officer concluded that the Applicant had not met the requirements of the Act and, in consequence, refused the application.
ISSUES
8 The Applicant raises the following issues:
• i. Whether the Officer's Decision was reasonable in light of the evidence before her; and
• ii. Whether the Officer's reasons were adequate.
STATUTORY PROVISIONS
9 The following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) are applicable in these proceedings:
• Definition -- arranged employment
• 82. (2) Ten points shall be awarded to a skilled worker for arranged employment in Canada in an occupation that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix if they are able to perform and are likely to accept and carry out the employment and
• [...]
(c) the skilled worker does not intend to
work in Canada before being issued a permanent
resident visa and does not hold a work permit and
• [...]
• (ii) an officer has approved that offer of employment based on an opinion provided to the officer by the Department of Human Resources and Skills Development at the request of the employer or an officer that
• (A) the offer of employment is genuine ...
* * *
• Définition : emploi réservé
• 82. (2) Dix points sont attribués au travailleur qualifié pour un emploi réservé appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification nationale des professions, s'il est en mesure d'exercer les fonctions de l'emploi et s'il est vraisemblable qu'il acceptera de les exercer, et que l'un des alinéas suivants s'applique :
• [...]
• c) le travailleur qualifié n'a pas l'intention de travailler au Canada avant qu'un visa de résident permanent ne lui soit octroyé, il n'est pas titulaire d'un permis de travail et les conditions suivantes sont réunies :
• [...]
• (ii) un agent a approuvé cette offre sur le fondement d'un avis émis par le ministère des Ressources humaines et du Développement des compétences, à la demande de l'employeur, à sa demande ou à celle d'un autre agent, où il est affirmé que :
• (A) l'offre d'emploi est véritable ...
STANDARD OF REVIEW
10 The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
11 The first issue concerns the reasonableness of the Officer's determination that the Applicant was ineligible for permanent residence under the federal skilled worker category. This is reviewable on a standard of reasonableness. See Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283 at paragraph 22.
12 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with "the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." See Dunsmuir, above, at paragraph 47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law."
13 The second issue concerns the adequacy of reasons. Adequacy of reasons is a procedural fairness issue, reviewable on the correctness standard. See Miranda v Canada (Minister of Citizenship and Immigration), 2010 FC 424 at paragraph 10; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 43.
ARGUMENTS
The Applicant
The Officer's Reasons Were Inadequate
14 The Decision is clear that the Officer refused to consider as valid the Applicant's offer of employment because of the adverse inference that she drew from the following three factors: the nature and size of Gip Sing does not justify Mr. Szeto's hiring of the Applicant; Mr. Szeto is Gip Sing's only company executive; and Mr. Szeto operates his business through his cell phone and residential telephone.
15 The Applicant submits that, in his 28 January 2010 response to the Officer's request for information, Mr. Szeto provided detailed information on Gip Sing and its operations, including the date of its incorporation, the monetary value and size of its commercial property in Oakville (i.e., $6 million and a commercial plaza consisting of 14 units, respectively) and the total number of its employees (6). He also explained that he uses his cell number as Gip Sing's business number to allow his tenants ease of contact since he is regularly on the road and not always present at the plaza. Similarly, Mr. Szeto provides his residential phone number as a fax number to allow his tenants maximum access to him.
16 Although the Officer refers to Mr. Szeto's explanations in her CAIPS Notes, she does not clarify why any of the three factors cited above are of concern and how they support her conclusion that the nature and size of Mr. Szeto's company does not justify his hiring of the Applicant. Mr. Szeto offered a perfectly reasonable explanation but the Officer failed to explain why it did not satisfy her.
17 To be considered adequate, reasons must inform the individual whose rights, privileges or interests are affected how and why the decision was made, thereby permitting effective judicial review. The Applicant submits that the Officer's reasons are inadequate in that they fail to link the facts of the application and the explanations of Mr. Szeto to the way in which she disposed of the application.
18 It is not enough for the Officer to simply recite the above-noted factors and draw a conclusion. The reasons must address the major points in issue. See VIA Rail Canada Inc. v National Transportation Agency (2000), [2001] 2 FC 25, [2000] FCJ No 1685 (QL) (FCA).
19 The Applicant submits that, in failing to provide adequate reasons, the Officer breached the duty of fairness. See Clifford v Ontario Municipal Employees Retirement System, 2009 ONCA 670.
• The Officer Did Not Have Regard for the Totality of the Evidence
20 The Applicant submits that the Officer made erroneous findings of fact and that, in light of the evidence as a whole, the inferences that she drew were unreasonable
• The Respondent
• The Decision Was Reasonable and Procedurally Fair
21 The Respondent argues that the Officer reasonably found that Mr. Szeto did not require the Applicant to perform the duties listed and that the duties were exaggerated. The Officer properly carried out this analysis further to clause 82(2)(c)(ii)(A) of the Regulations, which requires that an offer of employment be genuine.
22 Her CAIPS Notes outline the duties listed in the offer letter of 30 March 2009 and in the explanatory letters of 28 January 2010. The duties listed in the earlier letter state that the Applicant would be required to "train and manage teams of information systems personnel to design, develop, implement, operate and administer computer software networks and information systems" and "recruit and supervise computer technicians and oversee their training." These duties were not reiterated in later letters. In the later letters, the employer stated that the Applicant was required "to build up, deploy and maintain a computerized information system for the company" and "to set up the programs and information system, to allow the business to classify the tenants' information, the utility and business types, the visiting customers' information, to build up and analyze data model, to analyze the business operation, to predict the company business development future and to provide data evidence for the business decision."
23 The Respondent contends that it was reasonable for the Officer to conclude that, given the nature and size of the business, the duties were exaggerated for the purpose of facilitating the Applicant's immigration to Canada. Given that Mr. Szeto was the only company executive, that he operated the business alone from his cell phone and residential telephone numbers and that the commercial property in question was comprised of only 14 units in a single location, it is unlikely that the Applicant would be required to train and manage teams of personnel, recruit and supervise computer technicians and control the budget and expenditure of the company projects.
24 The onus rests on the Applicant to establish the principal elements required for a positive determination of his application. The Applicant failed to meet this onus.
25 The Officer provided sufficient reasons for her Decision. The refusal letter and CAIPS Notes illustrate her relevant findings of fact, the principal evidence upon which those findings were based and the major points in issue. The reasons inform the Applicant as to why the employment offer was deemed not genuine. Therefore, the test for sufficiency of reasons as set out in VIA Rail, above, is met.
26 The Officer also gave the Applicant an opportunity to respond to her concerns regarding the employment offer. She then reviewed and assessed the documents provided and concluded that the offer was not genuine. The Officer's process was fair and her determination reasonable.
The Applicant's Reply
27 The Applicant disputes the suggestion that the employment duties noted in Mr. Szeto's letter of 30 March 2009 and the letters of 28 January 2010 were materially different. In any case, any alleged discrepancy between these letters played no role whatsoever in the Officer's Decision. The Officer merely references these letters in her CAIPS Notes, which state:
• Based on the size and operation of Cdn Er's property mgmt biz, I hv reasonable grounds to believe the job duties stated in the PI's Cdn job officer ltr and in Cdn Er's explanation ltr have been exaggerated for the purpose of facilitating PI's appln for immg to Cda under the are SW Immcat. (emphasis added)
It is clear that the Officer's Decision was based on the nature and size of the property management business and on her finding that the offer of employment was not genuine. It had nothing to do with the alleged discrepancies between the above-mentioned letters.
The Respondent's Further Memorandum
28 The Respondent submits that the Officer's reasons should not be read microscopically. When the Decision and the CAIPS Notes are read as a whole, the Officer's reasons are clear.
29 The Officer noted that Mr. Szeto's business consists of 14 units, one of which was not rented. He has 11 tenants and an average of four employees. He is the only executive and clearly is the only contact person, as he provides his cell phone number so that tenants can reach him when he is travelling. The duties listed in Mr. Szeto's March 2009 letter differ from those listed in his January 2010 letter, and it is reasonable to assume from the Officer's summary of the content of the letters in the CAIPS Notes that she compared them. The January 2010 letter, unlike the March 2009 letter, contained no references to training and managing teams of information systems personnel and recruiting, supervising and overseeing the training of computer technicians.
30 These pieces of information obviously are the factors considered by the Officer in her assessment of the genuineness of the job offer in relation to a business whose size, nature and type of operation resembles that of Gip Sing. The Officer's weighing of this evidence is deserving of deference.
ANALYSIS
31 The Applicant says that the Officer's reasons are inadequate:
• In short, it is the Applicants submission that Ms. Tsang has erred in that her reasons have failed to articulate why she refused to accept the Applicant's Arranged Employment. The Applicant further submits that Ms. Tsang breached her duty to (sic) procedural fairness through her failure to provide meaningful or adequate reasons.
32 The Applicant cites well-known authorities that speak to the issue of how reasons should be assessed for adequacy. The Federal Court of Appeal in Via Rail, above, had the following to say on point at paragraph 22:
• The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.
33 It is also well-known that the purpose of reasons is two-fold. As the Supreme Court of Canada put it in Lake v Canada (Minister of Justice), 2008 SCC 23 at paragraph 46: ...The purpose of providing reasons is twofold: to allow the individual to understand why the decision was made; and to allow the reviewing court to assess the validity of the decision. The Minister's reasons must make it clear that he considered the individual's submissions against extradition and must provide some basis for understanding why those submissions were rejected....
34 It is also well-established that a decision-maker must do more than simply recite the evidence and then add a conclusion. A connecting analysis is required that leads from findings of fact to the stated conclusions based upon those facts. In Adu v Canada (Minister of Citizenship and Immigration) 2005 FC 565 at paragraphs 14 and 20 , Justice Anne Mactavish put it as follows:
• In my view, these 'reasons' are not really reasons at all, essentially consisting of a review of the facts and the statement of a conclusion, without any analysis to back it up. That is, the officer simply reviewed the positive factors militating in favour of granting the application, concluding that, in her view, these factors were not sufficient to justify the granting of an exemption, without any explanation as to why that is. This is not sufficient, as it leaves the applicants in the unenviable position of not knowing why their application was rejected.
• ...
• In contrast, in this case, the officer reviewed the evidence of establishment in Canada offered by the applicants in support of their applications, and then simply stated her conclusion that this was not enough. We know from the officer's reasons that she did not think that the applicants would suffer unusual, undeserved or disproportionate harm if they were required to apply for permanent residence from abroad. What we do not know from her reasons is why she came to that conclusion.
35 In the present case the reasons are found in the Officer's letter of September 30, 2010 and are supplemented by the CAIPS notes. In sum, the reasons provided are as follows:
• I have assessed you based on all documentation and information submitted to this office by you in support of your immigration application. Your prospective Canadian employer (Szeto) Ping Hay of Gip Sing International Ltd explained in his letter dated 28 January 2010 to this office the nature and the operation of his property management business in Oakville, Ontario. Based on his own admission about the nature and the size of his property management business, the fact that he appears to be the only company executive in his property management business and that he is operating the said business from his own cellphone (sic) and residential telephone numbers, I am not satisfied that your prospective Canadian employer genuinely requires you to perform the list of employment duties for his property management company as stated in your Canadian employment offer letter dated 30 March 2009 and in his explanation letter dated 28 January 2010 to this office. I have reasonable grounds to believe the employment duties stated in those two letters letter (sic) have been exaggerated for the purpose of facilitating your application for immigration to Canada under the Federal Skilled Worker's Arranged Employment immigration category. I am, therefore, not satisfied that you have a genuine offer of employment in Canada nor am I satisfied that you are likely to accept and carry out the said employment in Canada. As a result, I have not assigned any points to you under the Arranged Employment factor when assessing your application. You have obtained insufficient points to qualify for immigration to Canada, the minimum requirement being 67 points. You have not obtained sufficient points to satisfy me that you will be able to become economically established in Canada.
• Subsection 11(1) of the Act states that the foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. Subsection 2(1) specifies that unless otherwise indicated, references in the Act to "this Act" include regulations made under it.
• Following an examination of your application, I am not satisfied that you meet the requirements of the Act and the regulations for the reasons explained above. I am therefore refusing your application.
• CAIPS Notes:
• HV concerns with authenticity of PI's Cdn Job offer.
• There is no info in the public domain and in Cda's Yellow Pages re a business called "Gip Sing International Ltd" in Scarborough, Ont.
• Biz tel nbr shown in Cdn er's co ltrhd on which the offer of emp dated 30Mar09 was printed is a cellphone nbr based in Toronto.
• Called fax tel nbr shown in Cdn ER's co ltrhd and noted that it does not appear to be a fax nbr as claimed, that it is in fact a residential telephone nbr in Markham, ON.
• Noted biz addr shown in Cdn er's co ltrhd is a PO Box addr and not an actual biz office addr.
• Noted PI is being offered the position of info systems mgr by Cdn er.
• Noted that PI's emp duties include train and manage teams of info sys personnels to design, develop, implement, operate, and administer computer software, networks and info systems, supervise computer technicians and oversee their training.
• Noted that PI's actual place of work is supposed to be at Gip Sing Intl Ltd's Oakville office located at 579 Kerr St.
• Info available in the public domain indicates "579 Kerr St" is the location of a number of retail restaurant and grocery stores in Oakville.
• Info available in the public domain re "579 Kerr St" indicates there is only one computer retail store located at that Oakville addr, that it is not owned (sic) by PI's Cdn er and it provides computer sales, repairs, and cleaning service.
• Concerns ltr prepared on file.
• GFK: Pls 1) Send concerns ltr on file
• 2) Send Cdn er ltr requesting co's latest NOA, revenue Cda's docs and records to show the total nbr of staff employed by this co in the past 12 mths or fiscal yr. and proof of biz office and biz activities/projects at 579 Kerr St in Oakville.
• 17-DEC-2009
• Sent concerns ltr
Sent Cdn er ltr
• 17-DEC-2009
• Rec'd concerns reply
• Owner of Cdn employer Gip Sing International Lte, Mr. Szeto provides the following docs to show his company is an active operating business.
• Corporation profile report issued by the Province of Ontario dated Jan 13, 2010 indicating the company status is "active" and the registered office address is 1711 McCowan Rd in Scarborough.
• Cert of status issued by province of Ontario dated 13Jan2010 shows the company status "has not been dissolved".
• Mr. Szeto advised that Gip Sing is incorporated on Aug 26, 2004, and owns a commercial plaza property at 579 Kerr St in Oakville which are leased out to various business.
• Mr. Szeto confirmed the job offer to PI is authentic.
• Mr. Szeto confirmed that the phone no and fax no provided on job offer are his direct lines so as to respond directly to all matters.
• Owner provides the following docs to show sufficient resources to hire PI
• - 2007 and 2008 NOA
• - T4 slips - 2009 for 6 employees of Gip Sing Int'l Ltd filed to CRA
• - Copy of stmt of account for current source deductions of Gip Sing for 2009
• - Property tax bill of Gip Sing shows location of Gip Sing is at 579 Kerr St., Oakville
• - Copy of commercial lease agreement between Gip Sing and a buffet restaurant with annual rental income of over Cad $19,000.
• Feb 11 2010
• Rec'd rep's fax dated 15Sep2010 for case status, said they have not heard anything from us since doc submission 8 months ago
• Sep 21 2010
• Reviewed Cdn employer's biz docs and explanations provided in ltr dated 28Jan10 submitted to this office.
• Cdn employer (Szeto) Ping Hay of Gip Sing International Ltd explained in ltr to this office that
• 1. His co owns a commercial plaza property at 579 Kerr St in Oakville, ON with 14 units available for leasing.
• 2. Biz nature of his co Gip Sing Intl ltd is property mgmt.
• 3. He is the president, the director, the secretary, and the treasurer of his co.
• 4. Co's biz tel nbr is his own cell phone nbr as he is not always on site at 579 Kerr St in Oakville but wishes to respond to all matters relating to his E biz, which is property mgmt.
• 5. Co's biz fax nbr is his own residential tel nbr as he is not always on site at 579 Kerr St in Oakville but wishes to respond to all matters relating to his biz, which is property mgmt.
• Cdn employer claimeed that 13 of his 14 commercial units within the plaza have been leased out and provided a list of 11 biz tenants.
• Cdn employer claimed that he required PI to work on site at unit 14, 579 Kerr St. in Oakville, ON.
• Cdn employer claimed that he requires PI to perform the following duties:
• a. Build up, deploy and maintain a computerized info system for his co
• b. Setup programs and info system in order to classify the tenant' info, the utility and business types, the visiting customers' info, build up and analyze data model, analyze biz operation, predict co biz development future, and provide data evidence for biz decision.
• Noted that Cdn er's job offer ltr 30Mar09 submitted on file indicates PI's job duties to be
• a. Plan, organize, develop, directm (sic) control and evaluate the operations of information systems of the business.
• b. Meet with the Director of the business to discuss system requirements, specifications costs and timelines.
• c. Train and manage teams of information systems personnel to design, develop, implement, operate and administer computer software, networks and information systems.
• d. Control the budget and expenditures of the Co projects.
• e. Recruit and supervise computer technicians and oversee their training.
• Cdn er submitted copy of revenue Cda's stmt of account for current source deductions for various mths in 2009 showing that he has been paying contributions for an average of about 4 employees.
• Based on Cdn er's biz docs submitted on file, I am satisfied an existing commercial property rental biz.
• However, based on Cdn er's own admission about the nature and the size of his biz, the fact that he appears to be the only co executive in his property mgmt biz and he is operating the biz from his own cellphone and residential telephone nbr, I am not satisfied that Cdn er's biz genuinely requires PI to perform the list of job duties as stated in the PI's Cdn job offer ltr dated 30Mar09 and Cdn er's explanation ltr dated 28Jan10.
• Based on the size and operation of Cdn er's property mgmt biz, I have reasonable grounds to believe the job duties stated in the PI's Cdn job offer ltr and in Cdn er's explanation ltr have been exaggerated for the purpose of facilitating PI's appln for immig to Cda under the are SW immcat.
• I am, therefore, not satisfied that that PI has a genuine offer of emp in Cda nor am I satisfied that PI is likely to accept and carry out the said emp in Cda.
• 10 are pts not assigned to PI.
36 The CAIPS Notes make it clear that the Officer looked at all of the evidence. Her reasoning process is also clear: when the stated duties of the job are compared with the size and actual operation of the business, it is reasonable to assume that a business of the size and nature of Gip Sing International Ltd. is not likely to require someone to:
• a. Plan, organize, develop, direct control and evaluate the operations of information systems of the business
• b.
...
• c. Train and manage teams of information systems personnel to design, develop, implement, operate and administer computer software, networks and information systems
• d.
...
• e. Recruit and supervise computer technicians and oversee their training.
The evidence was that Gip Sing had paid contributions for an average of only four employees, so that it was unlikely that the Applicant was needed by the business to, for example, "train and manage teams of information systems personnel to design, develop, implement, operate and administer computer software networks and information systems," particularly when the owner's current mode of operations is examined and taken into account.
37 Other stated duties do not seem to be out of line:
• b. Meet with the Director of the business to discuss system requirements, specifications costs and timelines
• ...
• d. Control the budget and expenditures of the Co projects
38 The plurals used in the job description create a very different impression from the facts gathered by the Officer concerning the actual business. It looks as though a considerable amount of exaggeration has taken place; the established facts about the business lead to a reasonable conclusion that the business does not require the Applicant to perform all of the duties set out in the list of job duties that was provided to the Officer.
39 This is much more than a statement of facts with a bald conclusion added. The Decision says that when the list of job duties is compared with the actual size of this business, and with the way it actually operates, there is an obvious unexplained disconnect from which it is reasonable to conclude that the business does not really need the Applicant to perform all of the stated duties, and that the exaggeration of those duties has taken place to facilitate the Applicant's immigration to Canada.
40 In my view, nothing could be plainer. The reasons are not extensive but they are adequate because they allow the Applicant to see how and why the Decision was made and they also allow the Court to assess their validity. "I am satisfied that these reasons taken as a whole are sufficiently intelligible and transparent and justified so as to enable the Applicant to understand what was considered by the Officer and the conclusions reached in respect of the relevant issues," to use the words of Justice Roger Hughes in Rachewiski v Canada (Minister of Citizenship and Immigration) 2010 FC 244 at paragraph 24.
41 The reasons are adequate and, when the Officer's conclusions are examined against the evidence before her, they are reasonable. I cannot find a reviewable error in this Decision.
JUDGMENT
THIS COURT'S JUDGMENT is that
• 1. The application is dismissed.
A probation order prevents the granting of Canadian citizenship until concluded. Note the particular circumstances of the case below, and somewhat of an hyperbole commentary in the judgement. Should judges be allowed to comment on the quality of Canada as a country? Or how much "compassion" should be in society? Or is that subjective assessment reserved for the public, the politicians and the media? Should judges be limited to legal commentary only? You decide...
Al-Darawish v. Canada (Minister of Citizenship and Immigration)
Between
Ahmad Al-Darawish, Applicant, and
The Minister of Citizenship and Immigration, Respondent
1 MANDAMIN J.:-- Mr. Al-Darawish appeals the decision by the Citizenship Judge, R. Monteith made on November 5, 2011 dismissing his application for Canadian citizenship because the Applicant was the subject of a one year probation order imposed on July 20, 2010 and therefore not eligible for citizenship pursuant to paragraph 22(1)(a)(ii) of the Citizenship Act, R.S.C. 1985, c. C-29 (the Act).
2 The Citizenship Judge also found that the Applicant did not have an adequate knowledge of Canada and the responsibilities of citizenship because he was unable to correctly answer questions in respect of the history, geography of Canada, its government and citizenship responsibilities. The Citizenship Judge declined to make a recommendation for Ministerial exercise of discretion waiving the knowledge requirements on compassionate grounds. The Citizenship Judge advised Mr. Al-Darawish that he may make a new application for citizenship once he meets the requirements of the Act.
3 Mr. Al-Darawish appeals the decision submitting that he is suffering from serious disability arising from serious injuries incurred in an automobile accident, from illness, and from traumatic experiences. He submits he completed his period of probation on July 19, 2011 and is now eligible for citizenship.
4 I must conclude the Citizenship Judge was correct in that Mr. Al-Darawish was not eligible for a grant of citizenship while his probation order was in effect because of paragraph 22(1)(a)(ii) of the Act. My reasons are set out below.
5 Given the operation of paragraph 22(1)(a)(ii), the Citizenship Judge need not have gone on to find Mr. Al-Darawish was ineligible because of an inadequate knowledge of Canada. More importantly, on the evidence before me, I am of the view that Mr. Darawish's case is one where consideration needs to be given for waiving the knowledge requirement on compassionate grounds now that he is no longer under probation.
Background
6 The Applicant was born on August 20, 1957 in Doura, Hebron in the West Bank. He will be 55 years of age on August 20, 2012. I am advised by the Respondent that the significance of age 55 is that consideration is given to waiving the knowledge requirement for citizenship applicants who are 55 years of age or older. The difficulty is the Applicant, who is self-represented, fears he may not live that long.
7 The Applicant is seeking his Canadian citizenship as part of his arrangements for his family; his wife is ill and he has several children who are still minors.
8 The Applicant was a medical doctor. He graduated from Bethlehem University in Israel and worked in the United Arab Emirates for many years before moving to Canada. He and his wife have thirteen children. He has been a permanent resident and living in Canada with his spouse since June 5, 2006.
9 The Applicant, his wife and three of their children were in a serious motor vehicle accident on September 26, 2008. He suffered significant injuries which necessitated surgery. In addition he was diagnosed as having cancer which resulted in a further operation. He is permanently disabled and says he has suffered memory problems ever since the accident.
10 The Applicant applied for citizenship on July 22, 2009.
11 The Applicant also pled guilty to a summary offence of assault under section 266 of the Criminal Code of Canada. He was given a conditional discharge and made subject to a probation order on July 20, 2010. The conditional discharge means he is deemed to have not been convicted of a criminal offence upon successfully completing probation.
12 Among the many medical reports provided by the Applicant in this appeal is a note by his family physician who wrote on October 25, 2010: "This note confirms you do have a multitude of health issues that may impair your ability to perform well in your Canadian Citizenship examination." However this evidence does not appear to have been part of the Record that was before the Citizenship Judge.
13 The Applicant had an oral hearing before the Citizenship Judge on November 4, 2010. He was given an oral knowledge test which he failed.
Decision Under Review
14 The Citizenship Judge informed the Applicant by letter dated November 5, 2010 that his application for Canadian citizenship had been refused on the basis that the Applicant had been convicted of assault under section 266 of the Criminal Code and was under a prohibition order. The Citizenship Judge explained that paragraph 22(1) of the Citizenship Act prohibited the Applicant from being granted citizenship.
15 The Citizenship Judge also found that the Applicant did not have an adequate knowledge of Canada and of the responsibilities and privileges of citizenship as required under subsection 5(1)(e) of the Citizenship Act because he had been unable to correctly answer at the hearing questions on the history and geography of Canada, the three levels of government, and the responsibilities and privileges of Canadian citizenship.
16 The Citizenship Judge considered whether or not to make a recommendation for an exercise of discretion under subsection 5(3) or 5(4) of the Citizenship Act, but found that there was no evidence of special circumstances that would justify making such a recommendation.
Relevant Legislation
17 The Citizenship Act, R.S.C., 1985, c. C-29 provides:
• 5. (1) The Minister shall grant citizenship to any person who
• ...
• (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship;
• ...
• (3) The Minister may, in his discretion, waive on compassionate grounds,
• (a) in the case of any person, the requirements of paragraph (1)(d) or (e);
• (b) in the case of a minor, the requirement respecting age set out in paragraph (1)(b), the requirement respecting length of residence in Canada set out in paragraph (1)(c) or the requirement to take the oath of citizenship; and
• (c) in the case of any person who is prevented from understanding the significance of taking the oath of citizenship by reason of a mental disability, the requirement to take the oath.
• Special cases
• (4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.
• ...
• 15. (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.
• ...
• 22. (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship
• (a) while the person is, pursuant to any enactment in force in Canada,
• ...
• (ii) under a probation order,
* * *
• 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
• ...
• e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté;
• ...
• (3) Pour des raisons d'ordre humanitaire, le ministre a le pouvoir discrétionnaire d'exempter :
• a) dans tous les cas, des conditions prévues aux alinéas (1)d) ou e);
• b) dans le cas d'un mineur, des conditions relatives soit à l'âge ou à la durée de résidence au Canada respectivement énoncées aux alinéas (1)b) et c), soit à la prestation du serment de citoyenneté;
• c) dans le cas d'une personne incapable de saisir la portée du serment de citoyenneté en raison d'une déficience mentale, de l'exigence de prêter ce serment.
• Cas particuliers
• (4) Afin de remédier à une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d'ordonner au ministre d'attribuer la citoyenneté à toute personne qu'il désigne; le ministre procède alors sans délai à l'attribution.
• ...
• 15.
(1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine s'il y a lieu de recommander l'exercice du pouvoir discrétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas.
• ...
• 22.
(1) Malgré les autres dispositions de la présente loi, nul ne peut recevoir la citoyenneté au titre des paragraphes 5(1), (2) ou (4) ou 11(1) ni prêter le serment de citoyenneté :
• a) pendant la période où, en application d'une disposition législative en vigueur au Canada :
• ...
• (ii) il est sous le coup d'une ordonnance de probation,
(emphasis added)
Issue
18 I would frame the issue as: Did the Citizenship Judge err in finding that the Applicant was prohibited from being granted citizenship and, if not, did the Judge err in also assessing the Applicant's knowledge of Canada and declining to recommend waiver of that requirement?
Analysis
19 The Applicant asks the Court to review his situation on the basis of his permanent disability. He says that he has had memory problems since his accident and therefore could not pass the citizenship exam. He submits that the Citizenship Judge did not look to any of his medical reports which he had with him at the hearing.
20 The Respondent acknowledges that the Citizenship Judge may have made errors with regards to finding that the matter was not an appropriate case for the exercise of discretion. However, the Respondent takes the position that the fact that the Applicant is subject to a probation order is the determinative issue, as it places him squarely within subsection 22(1) which prohibits the granting of citizenship on a person subject to a probation order.
21 Paragraph 22(1)(a)(ii) clearly precludes a grant of citizenship while an applicant is under a probation order. It states: "Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) ... while the person is ... under a probation order."
22 In result, I conclude the Citizenship Judge was correct in concluding the Applicant was precluded from being granted citizenship while the probation order was in effect.
23 In light of my conclusion, the Citizenship Judge's going on to analyze the matter in respect of the Applicant's knowledge and assessing whether to recommend the Minister exercise discretion to waive the knowledge requirement while the probation order was in effect was superfluous and could not be undertaken in any event.
24 In Frankowski v Canada (Minister of Citizenship and Immigration), [2000] 187 FTR 92, Justice Rothstein examined the apparent conflict between subsection 5(4) of the Citizenship Act providing for Governor in Council discretionary granting of citizenship which states "notwithstanding any other provision of this Act", and another provision, subsection 22(2), prohibiting the granting of citizenship "notwithstanding anything in this Act" if the person has been convicted of an indictable offence. Justice Rothstein noted that when two provisions are in conflict with each other, the specific provision, subsection 22(2), should be applied to the exclusion of the more general subsection 5(4).
25 As such, I consider paragraph 22(1), more specifically 22(1)(a)(ii), to be similarly applicable which means this is not a case for Ministerial exercise of discretion under subsection 5(3) while the Applicant was under the probation order.
Conclusion
26 In result the Applicant's appeal must be dismissed.
27 However, that is not the end of this matter. Although I have concluded the appeal must be dismissed, I consider it appropriate to recommend that the Applicant be given timely and appropriate consideration on his re-application for citizenship.
28 The probation order expired July 19, 2011 and is no longer a bar to the Applicant proceeding with his application for citizenship other requirements being satisfied.
29 As the above discussion discloses, there is evidence which supports consideration for a recommendation for Ministerial discretion in regards to waiving the paragraph 5(1)(e) knowledge requirement for this Applicant.
30 The Applicant is a man who achieved much, achieving a medical degree and serving for many years as a medical doctor, but he has suffered injury and illness that has rendered him permanently disabled. He is not the man he was. His memory which served him well as a doctor is unreliable. His performance on the knowledge test bears that out. He is 53 years old but appears to be twenty years older. His health is precarious. He fears that he will not live to see the day he gains his Canadian citizenship should the process become drawn out and that his family will be denied that beneficial outcome.
31 The Applicant did answer one challenging question correctly during his oral knowledge test. He identified two fundamental freedoms that Canadians enjoy: freedom of expression and freedom of belief. He then added "Best country in world".
32 In my view compassion is a vital part of the Canadian makeup that makes Canada the best country in the world.
33 All legal requirements being satisfied, I recommend the Applicant's renewed application for citizenship be expedited and due consideration be given to waiving the knowledge requirement for the Applicant.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
• 1. The appeal is dismissed.
• 2. The renewed application by the Applicant for citizenship be processed in a timely manner with consideration given to the question of waiver of the 5(1)(e) knowledge requirement as provided in the Act.
Aside from the considerable amount of corporate advertising below, and the fact that is is unclear as to what specifically this company will do, this seems to be another step in the use of biometric identifiers in visa applications.
Citizenship and Immigration Canada Selects CSC for Visa Services across Latin America
FALLS CHURCH, Va., Aug 22, 2011 (BUSINESS WIRE) -- Citizenship and Immigration Canada (CIC) has entered into a service agreement with Computer Sciences Canada Inc., a wholly owned subsidiary of CSC, to provide administrative support to facilitate the successful submission of visa applications from Latin America. The service agreement has a two-year base period and two one-year options.
"We are pleased to support Canada's visa services in support of Citizenship and Immigration Canada's efforts to provide better service to Latin America," said Charlie Whelan, president of Canadian operations for CSC's North American Public Sector (NPS). "Our visa application centers and information services will provide improved access, onsite client service and secure transmission of applications and documentation that will eliminate unnecessary delays in processing at the Citizenship and Immigration Canada Visa Office."
As part of this service agreement, Computer Sciences Canada will establish and operate Visa Applications Centers (VACs) in 15 countries across Latin America. These centers will handle applications for residents of Latin America applying for temporary resident visas to Canada, as well as permit and travel document applications for people seeking to travel to Canada from Latin America. Computer Sciences Canada will also provide information services for visa applicants via web sites and contact centers. Since 2009, Computer Sciences Canada has provided similar services to the citizens of Mexico under a separate service agreement with Citizenship and Immigration Canada.
Computer Sciences Canada will go live with these new services in September 2011.
Currently, CSC supports the governments of the United States, Austria, Canada, Germany, Australia and the United Kingdom with services in more than 100 countries and in more than 20 languages. Since 2000, CSC has provided accurate visa information and prompt services to more than 40 million visa applicants, scheduling more than 20 million appointments. Since beginning our visa applicant biometric collection services, CSC has securely enrolled millions of applicants.
About CSC's North American Public Sector
As a go-to partner for critical national programs, CSC offers thought leadership, specialized skills and innovative services in critical areas for government clients. Leveraging a global footprint in both private and public sectors, and experience gained from serving almost every U.S. government agency, CSC's North American Public Sector (NPS) brings innovative ideas and proven best practices to help the U.S. government meet mission-critical requirements. For more information about CSC's government solutions, visit http://www.csc.com/government .
About CSC
CSC is a global leader in providing technology-enabled business solutions and services. Headquartered in Falls Church, Va., CSC has approximately 93,000 employees and reported revenue of $16.2 billion for the 12 months ended July 1, 2011. For more information, visit the company's website at www.csc.com .
The article below is from the Indian Express. The allegations are disturbing. It is unclear which types of visas are involved in the alleged fraud in connection with Canada, though it appears that the financial documents relate to students.
Police to detail immigration fraud to foreign embassies
Majid Jahangir Posted online: Mon Aug 22 2011, 02:58 hrs
Chandigarh : Healthyway’s modus operandi: Issue fake loan letters, take advantage of officials
The unearthing of immigration rackets from the region has brought forth the way these dubious firms were cheating both the candidates as well as the embassies and Chandigarh police have decided to write to various foreign embassies in New Delhi explaining the modus operandi of the fraud.
Police sources said during questioning of prime suspect Amit Kakkar, director of Healthyway Immigration, who is in the police custody for cheating, forgery and criminal conspiracy, revealed that they were taking advantage of embassy officials who at some places were not cross-checking the facts that were submitted by the firm for sending youth to UK, Canada, Australia and other countries.
“Once the candidates used to submit the financial documents through the firm for immigration, the embassy official would not check with the bank officials whether the sanctioned money was a credit or a debit loan. Besides, the embassy officials would also not check whether there was any money in the bank account of the candidate after the loan letter was issued. At places, fake loan letters were issued by the banks which were never cross-checked,” said a police officer, who is part of the Special Investigation Team.
“We will be writing to the foreign embassies in New Delhi through a proper channel explaining the modus operandi of the company and how scores of youth and embassy officials were being cheated by the company,” the officer said.
The SIT has so far found over 200 financial documents to be fake. The role of various banks in the region is also under scanner, as in many cases the loan letters had been issued without depositing money in their account.
Every applicant who wants to study abroad, has to submit the financial guarantee documents to various embassies.
“We are verifying each and every document that we recovered from the company office. We are also in touch with the Regional Passport Office, as we have recovered certain passports and we are checking their genuineness. We have also issued an LOC (Look Out Circular) as the other directors of the company are absconding,” SIT head and Deputy Superintendent of Police Anil Kumar said.
To return Certificates
Chandigarh police have decided to hand over genuine certificates recovered from the office of Healthyway Immigration to those who had submitted them to the company for immigration purposes. The police said the certificates will be provided to candidates after proper verification.
The Case
The immigration racket was unearthed after British Embassy in New Delhi informed Chandigarh police that an immigration company based in the city was issuing fake bank guarantee and documents for immigration. It was after this input that Chandigarh police raided Healthyway Immigration, a Sector 42-based company, office and sealed it. Police have registered seven cases against the company and nearly 60 complaints are also being probed by them.
See CBC report below. While I appreciate that the family is inadmissible for immigration purposes under IRPA, the non-trained observer will be dismayed at comparing this case with those routinely reported where career criminals are allowed to remain in Canada on "humanitarian and compassionate" grounds. This is a difficult pill for the public to swallow as it defies the notions of "proportionality" and "moral equivalency". But the law is sometimes unwieldy.
As for the applicants in the case below, next time better hire a lawyer who is a specialist in citizenship and immigration law.
A very interesting case that may not be unique: a Chinese student, feeling parental pressure to succeed, unable to come to disclose his failure in school, ends up making some very bad choices. This case may be an illustration of the pressures of adapting to a different lifestyle and expectations in a completely different society. Note the immigrtion consequences discussion.
R. v. Leung
BetweenHer Majesty the Queen, and Kay Y. Leung
[2011] O.J. No. 3691
2011 ONCJ 400 Ontario Court of Justice
L.T. Feldman J. Heard: June 3, July 4, 28, 2011. Judgment: July 28, 2011.
(48 paras.)
1 L.T. FELDMAN J.:-- Kay Y. Leung entered guilty pleas to charges of Mischief Endangering Life and Mischief to Property. Counsel jointly tendered an agreed statement of facts, an abridged version of which follows.
2 In December of 2009, Mr. Leung lived alone in a newly renovated home in Scarborough owned by his parents who resided in Hong Kong. The defendant was a student at Seneca College. He was supported by his parents. His relationship with them was tumultuous. He told police they put a lot of pressure on him to succeed.
3 His parents' plan was to retire soon and move to Canada to live in the house with their son. Mr. Leung did not want this to happen as for a number of years he had enjoyed social and financial freedom that would be diminished were his parents to move here.
4 On December 22, the Leungs arrived for a 10-day visit. The defendant felt the pressure and anxiety associated with their expectations and began thinking of ways to get them to leave Canada.
5 On Dec 23, after dinner with his girlfriend, Mr. Leung purchased a can and filled it with gasoline. He went home and left the can in the garage, then entered the house and said goodnight to his parents who were sleeping in the main floor bedroom. He went downstairs to his own self-contained living space.
6 Around 3 a.m. the next morning, the defendant took a butane lighter with him and retrieved the gas can from the garage. He poured out half its contents onto the carpet outside the door where his parents were sleeping and put the gas can down about a meter away. He then lit the carpet with the lighter and ran downstairs to his room.
7 Fortuitously, the accused's father had woken up and gone to the bathroom. When he was returning to bed he discovered the fire. When Mr. Leung heard his parents' screams, he came back upstairs, feigning surprise. He called 911 at his father's direction. Mr. Leung's father managed to put out the fire, but not before some significant property damage was done. Cleanup and repair totalling $6403.00 was paid out privately.
8 Emergency services personnel came to the house and transported the accused's parents to the hospital. Both of them suffered smoke inhalation and the father, in addition, sustained second-degree burns to his hands from touching the door knob when leaving his room.
9 The defendant denied having started the fire and told the emergency personnel he believed unknown persons had broken into the home and set it, although he admitted having purchased the gas can, he claimed, in anticipation of obtaining a snow blower. On January 6, 2010, he again denied involvement in the arson in a formal statement to the authorities.
10 Police doubted the veracity of his story and asked him to submit to a polygraph examination. Mr. Leung agreed. On January 14, he failed the test.
11 In a post-test interview, Mr. Leung admitted having started the fire in response to the negative feelings he had about his parents and their controlling behaviour. He said he only meant to scare them so that they would leave the country.
12 On January 15, the defendant apologized to his father in an email. He said he didn't mean to hurt him or his mother but was responding to the frustration of feeling that his life was being controlled by them. He also expressed remorse for his behaviour to his girlfriend in a text message and, as well, confirmed his involvement in a subsequent videotaped statement to the police.
13 Following his arrest, and prior to being released on bail, Mr. Leung served 7 days of pre-trial custody.
Background Information
14 Mr. Leung was born and raised in Hong Kong. His parents are hardworking and successful. The defendant was an indifferent student. As a result, in 2000, he was sent to a private school in Canada north of Toronto with little notice. He subsequently graduated from high school and was encouraged by his parents to study engineering at the University of Toronto where he had been accepted.
15 Mr. Leung did poorly in his studies and dropped out after his first year but did not tell his parents for fear of their anger and because of his own humiliation. He indulged in drinking and socializing and lied to his parents about his irresponsible lifestyle.
16 Unknown to his parents, Mr. Leung also began gambling in 2008. He obtained a line of credit on the house that while owned by his parents had been put in his name and used it to support his lifestyle. While he relied on some of this money to maintain this and other family properties here, he estimates he spent more than $250,000 over the years on drinking, gambling and funding his social life. He eventually converted this debt into a mortgage on the property.
17 When his mother found out about her son's aimless behaviour, deceptions and secret life she travelled to Canada to "straighten him out". Mr. Leung later entered Seneca College in International Accounting and Finance. He has now graduated and will seek employment here or, if he is unable to obtain Canadian residency as a result of these proceedings, in Hong Kong, where his father will assist him in finding work.
18 Since being charged, Mr. Leung has attended 32 weekly sessions with Dr. Timothy Quek, a cognitive behavioural therapist. His parents have also been involved in counselling with their son. Dr. Quek believes the defendant was suffering from depression and anxiety and that "cognitive distortions likely led to his actions which were felt to be characterized more by compulsion than premeditation".
19 The defendant has accepted responsibility for his behaviour and apologized to his parents. He has gained insight into his distorted thinking and worked hard at school. His remorse appears to be sincere.
20 Mr. Leung's parents, who had in the past been less involved in their son's life, believe they are getting closer as a family, although they remain cautious in trusting the defendant. They still hope to retire to Canada.
21 Dr. Julian Gojer, a respected forensic psychiatrist, reviewed the materials in this case and conducted a clinical assessment of the defendant. He is of the view that Mr. Leung's personality at the time of the offence was one of immaturity, egocentricity along with low self esteem and resentment of his parents. He believes the defendant is settled now and that there is no evidence of any personality disturbances. His self esteem appears to have been addressed in therapy.
22 Dr. Gojer views the defendant's actions at the time of the offences as a "reflection of immaturity and unresolved negative attitudes towards his parents". He sees Mr. Leung's positive performance in counselling, remorse and change in his attitude as further support for the conclusion, derived from psychological testing, that he is not a psychopath. Additional testing indicates he is at low risk to reoffend.
23 Dr. Gojer concludes: "Clinically he has made great strides in therapy, shows excellent insight into the dynamics of his offending and has made a positive attitudinal change towards how he views his parents. Overall his risk to offend in a criminal manner is very low. He is remorseful, no longer blames his parents and is striving to be a responsible adult and good son. I do not see him as a risk to his parents."
24 Dr. Gojer recommends the defendant continue in therapy for the next year to consolidate the gains he has made.
25 Given the effort made by the accused in submitting to intensive counselling as part of rehabilitation and family reconciliation and the positive reports tendered on his behalf, the Crown has fairly agreed to stay the more serious mischief charge permitting the court greater discretion in imposing sentence.
Position of the Parties
26 Mr. Medeiros, for the Crown, submits that the seriousness of this offence, its high moral blameworthiness and its aggravating circumstances, particularly the likelihood of it causing danger to the parents' lives, requires a custodial term, a position he says is clear on the authorities. While the Crown concedes a conditional sentence is within an appropriate sentencing range, he submits that imposing a conditional discharge, sought by the defence, would reflect an error in principle.
27 Mr. Penny, for the accused, suggests the facts here are unique in that Mr. Leung's behaviour was rooted in immaturity and naivety and that it is significant this youthful first offender initiated early resolution and a rehabilitative process that included his parents as part of family reconciliation. He submits, as well, that jeopardy to the defendant's immigration status, particularly in light of his parents' wish to retire in this country, is a factor among others favouring a conditional discharge.
28 In remarks to the court, Mr. Leung demonstrated contrition and insight in expressing shame for the betrayal of his parents and expressed the hope to rebuild his relationship with them while becoming a better person.
The Authorities
·(a)
Mischief to Property by Fire
29 The serious nature of this offence, reflected in jeopardy to the lives of innocent persons and fire fighters, requires the imposition of a deterrent and denunciatory sentence: R. v. Mirzakhalili, [2009] O.J. No. 5464 (Ont. C.A.). In fact, in serious arson offences, even a conditional sentence has been held to be inappropriate: R. v. Hirnschall (2003), 176 C.C.C. (3d) 311 (Ont. C.A.); R. v. Fox, [2002] O.J. No. 2496 (Ont. C.A.).
30 In R. v. Sharpe, [2008] A.J. No. 424 (Alta. Prov. Ct.), the accused, after a night of drinking, accidentally set fire to a mattress which caused her spouse serious injuries. Although the consequences were unintended and the court recognized here a diminished degree of moral blameworthiness, a 20-month conditional sentence order was imposed because of the gravity of the offence.
(b) Risk of Deportation as a Factor in Sentencing
31 The authorities indicate that the sentencing process should not be used to circumvent the provisions of the Immigration and Refugee Act: R. v. B.R.C. (2010), 259 C.C.C. (3d) 27 (Ont. C.A.). In B.R.C., Sharpe J.A. observed that as sentencing is not an exact science, where there is a range of possible sentences, the fact that an offender will face deportation under one possibility "is one of the factors which is to be taken into consideration ... in conjunction with all of the other circumstances of the case" in choosing the appropriate sentence and tailoring the sentence to fit the crime; see also R. v. Melo (1975), 26 C.C.C. (2d) 510 (Ont. C.A.).
32 Put another way, while the deportation consequences of the sentence may be a proper factor to consider in determining the appropriate sentence in certain cases, immigration consequences cannot take a sentence out of the appropriate range: R. v. Multani, [2010] O.J. No. 1748 (Ont. C.A.).
33 In R. v. Daskalov, [2011] B.C.J. No. 6223 (B.C.C.A.), the accused entered Canada on a fraudulent passport. At trial, a conditional discharge was imposed to minimize the risk to his future admissibility into this country. The sentence was varied on appeal to one day's imprisonment, in part, given the absence of exceptional or unique circumstances. Smith J.A. held, at para 43, that the moral culpability of the offending conduct was significant and that a sentence outside the range of appropriate sentences imposed in order to circumvent the policy goals of the [immigration] legislation, although consistent with the best interests of the accused, was inconsistent with the public interest.
(c) Is the Granting of a Conditional Discharge in the Public Interest?
34 One of the hurdles for the defendant is the court's obligation to give appropriate weight to the statutory principles of general deterrence and denunciation set out in Code s. 718. These principles have particular resonance here given the potential endangerment to the lives of family members and others by the defendant's criminal act. At the same time there are no closed categories of offences for imposing discharges: R. v. Hartsgrove, [2005] O.J. No. 5819 (Ont. C.A.), endorsing [2004] O.J. No. 6071 (Ont. C.J.); R. v. Mitchell, [2007] O.J. No. 163 (Ont. S.C.).
35 As a foreign national, Mr. Leung, upon conviction, would be rendered inadmissible on grounds of criminality under s. 36(2) of the Immigration and Refugee Protection Act. While a discharge would not make him admissible, it would provide the opportunity for him to justify to the immigration authorities why he should be allowed to stay or be admitted. In R. v. N.H., [1994] O.J. No. 1694 (Ont. C.J.), Justice R. Bigelow noted that in granting a discharge where a parent had assaulted her child, the court was not interfering with the discretion of the immigration authorities. Rather, the court recognized that those authorities had an independent discretion to be exercised as they saw fit.
36 The defence fairly concedes that the aggravating features in this case may render the granting of a discharge to be contrary to the public interest as described in Code s. 730. The risk to life, the breach of trust, the need for general deterrence and denunciation and the fact that a jail term is within the appropriate sentencing range are problematic in this regard for the defendant.
37 However, Mr. Penney submits that the mitigating factors are substantial, indicate the existence of exceptional circumstances and weigh in favour of serious consideration of the discharge provisions. He cites the early guilty plea, genuine remorse and surrendering to this process without prior commitment on sentence from the prosecution or assurance that the most serious charge would be stayed, active participation in 60 sessions of assessment, treatment and counselling to gain insight, overcome distorted thinking and change his behaviour for the better, the involvement of the defendant's parents in part of the counselling process to facilitate family reconciliation and the serving of 7 days of pre-trial custody.
38 There is some support in the authorities for this exceptional result. In R. v. Meneses (1974), 25 C.C.C. (2d) 115 (Ont. C.A.), Dubin J.A. indicated that deterrence to others must give way when other considerations are more paramount and when the broad view of the public interest is considered. This was later reinforced by Justice Ratushny in R. v. Dinelle, [2001] O.J. No. 1692 (Ont. S.C.), in a case of domestic assault, where the court held that a conditional discharge is capable of serving the objectives of general deterrence. As well, in R. v. Cope, [2009] O.J. No. 5702 (Ont. C.J.), where the accused was found guilty of assaulting his wife on two discrete occasions, one in a sexual context, Krelove J. observed, at para. 22, that deterrence can be achieved by recognition that the defendant has been arrested, gone through the court process, spent time in pre-trial custody and made subject to a lengthy period of probation with significant terms.
39 Of importance, as well, is the notion that the public interest is served by the application of restorative justice principles in an effort to promote, in appropriate cases, family reintegration. In R. v. M.G., [2007] O.J. No. 5590 (Ont. C.J.), where the adult accused abused his trust and sexually interfered with a young person, Nakatsuru J. was persuaded that it was in the public interest in that case to allow the healing process within this family a better chance to succeed in a manner that paid more than lip service to the concept of restorative justice.
40 Similarly, in R. v. P.C., [2006] O.J. No. 5746 (Ont. C.J.), in a case where the defendant pled guilty to the unlawful touching of his step-daughter, Hawke J. noted the extraordinary efforts by the defendant to support his own rehabilitation and that of his step-daughter and to reunite his family, and found it not to be contrary to the public interest to grant a conditional discharge. In N.H., Bigelow J. was of the view, as well, in granting a discharge in that case, that the public has an interest in the unification of families.
41 Finally, of assistance is an example of the application of restorative justice principles in R. v. Braun, [2006] B.C.J. No. 3409 (B.C. Prov. Ct). There, the 18-year old native youth entered a guilty plea to Mischief over $5000 for starting a fire in an old cedar farm shed which set alight the adjacent barn. The defendant came forward and admitted to the act and the fact it was her idea. She was a good student, her remorse was considered genuine, she participated in a sentencing circle and her victims supported the granting of a discharge.
42 In all these cases, the importance of rehabilitation and other relevant factors in combination in the circumstances of each case overcame the predominance of both deterrence and denunciation in the sentencing analysis. That is not this case.
Conclusion
43 This offence is serious, given the potential dire consequences, and would require exceptional circumstances to overcome the importance here of both deterrence and denunciation. What is aggravating, in particular, is the selfish intent of the defendant to recklessly perpetrate a dangerous act in order to frighten his parents into leaving him alone in Canada so that he might continue his aimless and indolent life style. In fact, Dr. Gojer describes Mr. Leung as immature and egocentric with low self esteem, likely a result, in part, of his parents leaving him alone in Canada for so many years without adequate parental attachment, guidance and control. His naivety was apparent in setting the fire and then returning downstairs to his own bedroom incomprehensibly devoid of awareness that he was placing his own and that of his parents' lives at risk by his foolish act. I view the defendant's moral blameworthiness in that context. These are sympathetic, but not exceptional, circumstances.
44 At the same time, having accepted responsibility, and submitted to this process without prior assurances, the defendant has made an extraordinary effort to gain the necessary insight through intensive psychotherapy that can address his personal deficits, promote family reconciliation and achieve meaningful rehabilitation. He has worked hard. I accept Dr. Gojer's opinion that Mr. Leung has matured, gained valuable insight and is at low risk to reoffend. He has now graduated and can seek employment here or in Hong Kong, although his parents hope to retire to Canada and have their son with them.
45 On all the evidence, I consider the defendant's criminal act to reflect aberrant behaviour. Fortunately the consequences were not more serious. As well, in the circumstances, I acknowledge the substantial effort and progress made by Mr. Leung and believe it important to encourage that personal growth and allow for continuing family reconciliation.
46 As a result, on these unique facts, including strong evidence of rehabilitative progress by a relatively young first offender with a supportive family, I do not consider it contrary to sentencing principles to impose a non-custodial term.
47 However, given the paramount nature of both general deterrence and denunciation for this serious offence, the potential risk to life and the moral culpability attendant upon it, I am not persuaded that it would not be contrary to the the public interest to grant a discharge. To do so would, in my view, take this disposition out of an appropriate range in a manner that gave disproportionate weight to immigration considerations, however sympathetic in the circumstances, and, contrary to authority, diminish other more significant principles of sentencing.
48 The defendant will be given a suspended sentence plus probation for two years on terms to be discussed with counsel. The terms will include the following: keep the peace and be of good behaviour; report immediately and thereafter as required; for the first 12 months of this order continuing counselling with Dr. Timothy Quek or as directed by probation services; sign any releases that will permit probation services to monitor your compliance.
