Wednesday, August 29, 2012

NEGATIVE DISCRETION EXERCISED BY VISA OFFICER OVER LANGUAGE SKILLS

In the case below, a visa officer exercised negative discretion to deny a Skilled Worker application, over concerns that teh applicant's language skills wee insufficient to become successful established in Canada. Note the visa officer's comments regarding what employers are looking for in applicants.


Uddin v. Canada (Minister of Citizenship and Immigration)

Between
Muhammad Zulhaz Uddin, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 1095
2012 FC 1005

Docket IMM-5733-11

Federal Court
Toronto, Ontario

O'Keefe J.


Heard: February 23, 2012.
Judgment: August 20, 2012.
(47 paras.)
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REASONS FOR JUDGMENT AND JUDGMENT
1     O'KEEFE J.:-- This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (the Act) for judicial review of a decision of an immigration officer at the High Commission of Canada in Singapore (the officer), dated May 24, 2011, wherein the applicant was denied permanent residence under the federal skilled worker class pursuant to subsection 12(2) of the Act and subsection 76(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). This decision was based on the officer's finding that the applicant's English language proficiency was insufficient for him to become economically established in Canada.
2     The applicant requests that the officer's decision be quashed and the matter be remitted for redetermination by a different officer, at a different visa office, or both.
Background
3     The applicant, Muhammad Zulhaz Uddin, is a citizen of Bangladesh. He is married with one dependent child.
4     On November 10, 2009, the applicant filed an application for permanent residence under the federal skilled worker class. His listed occupations were financial manager (NOC 0111) and/or accountant (NOC 1111).
5     In a letter dated March 3, 2011, the officer informed the applicant that he had assessed the applicant's application and the applicant had received 72 points. Nevertheless, the officer stated that he was considering making a negative substituted evaluation finding pursuant to subsection 76(3) of the Regulations. The officer explained that he considered the applicant's English language abilities were such that the points awarded to him were not a sufficient indicator of his likelihood of becoming economically established in Canada. The officer stated:

·        I am not satisfied that this level of English competency would facilitate your economic establishment in Canada, as a Financial Manager, or similar, nor am I satisfied that you have otherwise acceptable experience in another field of expertise, found on the NOC list, in which you might reasonably be expected to secure employment. You have not demonstrated that you are sufficiently proficient in English to communicate as effectively as would be required in your field of expertise. 
6     The applicant was given sixty days to respond to the officer's concerns.
7     On April 25, 2011, the applicant sent the Canadian High Commission in Singapore supplementary submissions to address the officer's concerns. These submissions included: a statement from the applicant regarding his English language abilities; an updated personal worth statement with supporting evidence; and proof of relationship to cousin in Canada and evidence of cousin's residence in Canada.
Officer's Decision
8     In a letter dated May 24, 2011, the officer denied the applicant's application for permanent residence as a skilled worker. The Computer Assisted Immigration Processing System (CAIPS) notes that form part of the officer's decision also explain the reasons for the denial.
9     The officer stated that the applicant's application was assessed based on the occupation requests: NOC Code: 1111, financial administrator or similar. The officer assessed the following points for the applicant:


Age:
10 points


Education:
25 points


Official language proficiency:
6 points


Experience:
21 points


Arrangement employment:
0 points


Adaptability:
10 points

10     The points for adaptability were calculated based on the sum of five points for the applicant's spouse's education and five points for having a relative in Canada.
11     The points for official language proficiency were based on the applicant's International English Language Testing System (IELTS) test on April 10, 2010. These test results indicated that the applicant was a modest user of English as per the IELTS band scale descriptions.
12     The officer noted that in a letter dated March 3, 2011, the applicant was informed that his application was being considered for refusal on the basis of his limited ability to communicate in English. Recognizing the subsequent submissions that the applicant made in response to this letter, the officer stated:

·        [...] I am unsatisfied that the points awarded to you accurately reflect the likelihood that you will be able to successfully economically establish in Canada; your submission did not present any new evidence or information that has changed my assessment of your file. I have made this evaluation because, as a Financial Administrator, or similar, fields for which communication is critical, prospective employers would reasonably expect you to be able to communicate at a high level in English, or French. [...] 
13     In the CAIPS notes, the officer expanded on his reasons. Referring to the new evidence submitted on the applicant's cousin, the officer noted:

·        Note that rep now states that PA [applicant] has maternal cousin in Canada; not included on original applcication [sic]. Nonetheless, this information per relative in Canada does not present new information that would positively impact my concerns re PA's [applicant's] ability to establish. Cousin states she will assist PA [applicant] if required; note that PA's [applicant's] letter of employment shows her salary at $11.00/hour. Combined with concerns over PA's [applicant's] capacity in English, hsi [sic] family make-up (spouse and child), conncers [sic] remain that PA [applicant] will not establish economically under NOC code applied for. 
14     The officer also stated that a senior officer concurred in his evaluation of the applicant's application and subsequent submissions.
15     The Court notes that although the officer referred to 67 points being awarded to the applicant, in fact the total number of points awarded was 72.
Issues
16     The applicant submits the following points at issue:

·        1. 
What is the appropriate standard of review? 
·        2. 
Did the officer err in substituting a negative determination pursuant to subsection 76(3) of the Regulations? 
Applicant's Written Submissions
17     The applicant submits that this judicial review concerns a question of fact and law. It therefore attracts a standard of review of reasonableness.
18     The applicant does not dispute the points awarded for his application. Rather, the applicant submits that the officer erred in substituting a negative determination pursuant to subsection 76(3) of the Regulations. This error arose from the officer's failure to consider all the evidence before him.
19     The applicant also submits that the officer failed to assess the applicant's ability on the broader and correct standard of the likelihood of becoming economically established. Rather than concluding that the applicant needed to demonstrate that he could pursue a career as a "financial administrator or similar", the officer should have considered whether the applicant would become economically established as a skilled worker and not just in the limited professions noted in the decision. This need is reflected in the changes to the Act and Regulations, which altered the approach to skilled worker applications from an occupation-specific one to one that emphasizes the adaptability of skilled worker applicants to become economically established.
20     In support of his position that the officer did not consider all the evidence before him, the applicant highlights specific grounds that he included in his response to the officer's request for more information, namely:

·        1. 
His ability to work constructively in the English language on a daily basis at his workplace in Bangladesh; 
·        2. 
The availability of settlement funds to cover his short and mid-term financial obligations in Canada (an amount double that which he initially indicated); and 
·        3. 
The presence of his cousin, Sharminaz Sultana in Canada who has offered to provide financial and emotional support to the applicant and his family. 
21     The applicant submits that the officer was required to reflect his assessment of this information in his decision. The officer also erred in not referring to the settlement funds in his decision.
22     With regards to his cousin in Canada, the applicant submits that the officer erred by dismissing this evidence on the basis of the cousin's hourly salary. This approach failed to take into account the cousin's spouse and led to the suggestion that the applicant would be financially reliant on his cousin. The officer thus misconstrued the purpose of the cousin's evidence. As the applicant did have access to settlement funds, his cousin's evidence was merely provided to show that there was a home available to the applicant and his family in Canada until they became settled.
23     In summary, the applicant submits that any reasonable analysis of the evidence would indicate that the applicant would not have any difficulty in becoming successfully economically established in Canada.
Respondent's Written Submissions
24     The respondent agrees with the applicant that the standard of review of the officer's decision is reasonableness.
25     In response to the applicant's allegation that the officer limited his assessment to the applicant's potential to become economically established as a "financial administrator or similar", as opposed to as a skilled worker in general, the respondent submits that the CAIPS notes clearly indicate that the officer did consider the applicant's potential for establishment in other fields of expertise on the NOC list.
26     The respondent submits that the applicant's English skills were properly assessed. The respondent highlights the fact that the officer gave the applicant sixty days to provide additional information after making his preliminary finding. However, aside from a personal statement, the applicant did not provide any documentation to support his submissions that:

·        1. 
The language of choice at his workplace in Bangladesh was English; 
·        2. 
He intended to work in Canada in the same capacity as he does in Bangladesh; and 
·        3. 
Notwithstanding his English language deficiencies, he had demonstrated professional success in Bangladesh. 
27     The respondent submits that an applicant's settlement fund is not a relevant consideration in a substituted evaluation. Further, the applicant did not explain how his settlement fund would alleviate the officer's concerns about his limited English capabilities. The officer therefore did not err in not considering the settlement funds in his decision.
28     Finally, the respondent submits that there is no merit to the applicant's allegation that the officer did not consider his cousin in Canada. The CAIPS notes clearly indicate that this evidence was considered. The respondent acknowledges the applicant's submissions that his cousin was prepared to assist him in the transition to Canada, both her and her husband were employed on a full-time basis and that they owned a home in Brampton where the applicant and his family could stay until they adjusted to life in Canada. However, none of these submissions explained why the presence of the applicant's cousin should alleviate the officer's concerns about his limited English. The applicant's submissions are thus limited to the officer's weighing of the evidence, which does not amount to a reviewable error.
Analysis and Decision
Issue 1
What is the appropriate standard of review?
29     Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paragraph 57).
30     A determination under subsection 76(3) of the Regulations is a fact-driven exercise in an area where officers have significant experience. It is therefore reviewable on a standard of reasonableness (see Debnath v. Canada (Minister of Citizenship and Immigration), 2010 FC 904, [2010] F.C.J. No. 1110 at paragraph 8; Philbean v. Canada (Minister of Citizenship and Immigration), 2011 FC 487, [2011] F.C.J. No. 606 at paragraph 8; and Roohi v. Canada (Minister of Citizenship and Immigration), 2008 FC 1408, [2008] F.C.J. No. 1834 at paragraph 13).
31     In reviewing the officer's decision on the standard of reasonableness, the Court should not intervene unless the officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 SCR 339 at paragraph 59). As the Supreme Court held in Khosa above, it is not up to a reviewing court to substitute its own view of a preferable outcome, nor is it the function of the reviewing court to reweigh the evidence (at paragraphs 59 and 61).
Issue 2

·        Did the officer err in substituting a negative determination pursuant to subsection 76(3) of the Regulations?
32     Philbean above, at paragraph 9:

·        Subsection 12(2) of the IRPA indicates that, for the purposes of permanent residence, a person may be selected as a member of the economic class on the basis of their ability to become economically established in Canada. Subsection 76(1) of the Regulations indicates that, for the purposes of determining whether a skilled worker will be able to become economically established in Canada, two requirements must be met: a) the applicant must be awarded at least a minimum number of points based on education, language, experience, age, arranged employment, and adaptability, and b) the applicant must either (i) have a certain amount of money available to use for settlement in Canada, or (ii) have been awarded a certain number of points for having already arranged employment in Canada. [...] 
33     In this case, the officer first assessed the applicant's application under subsection 76(1) of the Regulations and thereby awarded the applicant 72 points. The officer then exercised his discretion under subsection 76(3) of the Regulations to evaluate the likelihood of the applicant becoming economically established in Canada despite the fact that the points awarded to him met the statutory requirement.
34     Madam Justice Tremblay-Lamer also described this provision in Philbean above, at paragraph 11:

·        Subsection 76(3) of the Regulations [...] allows for an immigration officer to substitute his or her own evaluation as to whether or not an applicant will be able to become economically established in Canada for the points-based assessment set out in paragraph 76(1)(a) in circumstances where the officer finds that the number of points awarded is not a sufficient indicator as to the applicant's actual ability to become established. Justice Leonard Mandamin, in Roohi, above, described subsection 76(3) as allowing, inter alia, "for screening out applicants who pass the initial assessment but ought not be accepted for valid reasons". 
35     As noted by the applicant, subsection 76(3) requires a two-stage analysis. This analysis was described by Mr. Justice Leonard Mandamin in Roohi above, at paragraph 17:

·        Section 76(3) engages a two stage process for arriving at a substituted evaluation: first, the visa officer must decide if the s. 76(1) assessment is not a sufficient indicator of whether the skilled worker applicant may become economically established in Canada; second, the visa officer must evaluate the likelihood of the skilled worker becoming economically established in Canada by conducting an adequate substitute assessment on proper grounds. 
36     These substituted evaluations under subsection 76(3) of the Regulations introduce an element of flexibility into the skilled worker application process (see Roohi above, at paragraph 25). Deference is owed to the officer in making the decision; however, it must nonetheless be consistent with the Act, the Regulations and the thrust of the skilled worker provisions (see Roohi above, at paragraph 26).
37     In this case, the officer found that the applicant's English language proficiency rendered the subsection 76(1) assessment insufficient as an indicator of the applicant's potential to become economically established in Canada. The officer therefore notified the applicant of his concerns and allowed the applicant to file additional submissions to alleviate them.
38     It is notable that an officer is under no duty to inform the applicant about any concerns regarding the application that arise directly from the requirements of the legislation or regulations and do not pertain to the veracity of the documents (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2006] F.C.J. No. 1597 at paragraphs 23 and 24). The onus is always on the applicant to satisfy the officer of all parts of his application. The officer is under no obligation to ask for additional information where the applicant's material is insufficient (see Sharma v. Canada (Minister of Citizenship and Immigration), 2009 FC 786, [2009] F.C.J. No. 910 at paragraph 8; and Veryamani v. Canada (Minister of Citizenship and Immigration), 2010 FC 1268, [2010] F.C.J. No. 1668 at paragraph 36). Nevertheless, in this case the officer did provide the applicant with an opportunity to disabuse his concerns.
39     In response to the officer's concerns, the applicant filed a personal statement on his English language abilities, accounts showing increased settlement funds and proof of his cousin's establishment in Canada. However, the officer found that the additional submissions did not present any new information or evidence that changed his assessment of the file.
40     The decision clearly indicates that the officer's main concern was the applicant's English language proficiency. Although the applicant stated in his personal statement that all of his regular work was conducted in English, the officer had the applicant's IELTS scores before him that contradicted this submission. I therefore do not find that the officer erred in not affording much weight to this submission.
41     With regards to the settlement funds, recent jurisprudence has established that officers are not required to consider these in subsection 76(3) analyses (see Xu v. Canada (Minister of Citizenship and Immigration), 2010 FC 418, [2010] F.C.J. No. 483 at paragraph 32; Philbean above, at paragraph 19; and Debnath above, at paragraph 15). Similarly to Debnath above, the question of settlement funds was irrelevant to the officer's main concerns; namely, the applicant's English language proficiency in this case (see Debnath above, at paragraphs 13 and 14). I therefore find no error in the officer's assessment of the applicant's settlement funds.
42     Turning to the applicant's cousin in Canada, the applicant submits that the officer erred by dismissing it on the basis of her salary. The applicant submits that the officer misconstrued the evidence as indicative of the applicant's financial reliance on his cousin rather than as evidence of a home for the applicant and his family to reside in until they became settled in Canada.
43     I first note that although the applicant criticizes the fact that the officer mentioned the cousin's salary without delving into her husband's employment, the husband's salary was not included in the applicant's submissions. Further and more importantly, the officer's main concern with the applicant's application was his English language proficiency. Therefore, I do not find that the officer erred in finding that the submissions on his cousin did not qualify as new information that would positively impact his concerns. There was nothing to suggest that his cousin would help him with the English language which, as stated above, was the officer's main concern with the applicant's ability to successfully economically establish in Canada.
44     Finally, as noted by the applicant, revisions to the Regulations have changed the approach in skilled worker applications from one focused on a specific occupation to one in which greater emphasis is placed on the adaptability of the applicant to becoming economically established in Canada (see Roohi above, at paragraph 28). However, contrary to the applicant's submissions, I find that the officer in this case did adopt the broader approach. As mentioned above, the officer explicitly stated in his letter dated March 3, 2011 that:

·        I am not satisfied that this level of English competency would facilitate your economic establishment in Canada, as a Financial Manager, or similar, nor am I satisfied that you have otherwise acceptable experience in another field of expertise, found on the NOC list, in which you might reasonably be expected to secure employment. [emphasis added] 
45     This clearly indicates that the officer did not limit his assessment to the applicant's competency in a specific occupation, but rather also considered his adaptability into other fields.
46     In summary, I find that the officer considered all the evidence before him in exercising his discretion under subsection 76(3) of the Regulations. This evidence included both the applicant's initial application and his subsequent submissions. I find that the officer's decision was transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it. I would therefore dismiss this application.
47     Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.
O'KEEFE J.
* * * * *
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c. 27

·        12.(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada. 

·        (2) 
The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in section 12, and may include provisions respecting 

·        (a) 
selection criteria, the weight, if any, to be given to all or some of those criteria, the procedures to be followed in evaluating all or some of those criteria and the circumstances in which an officer may substitute for those criteria their evaluation of the likelihood of a foreign national's ability to become economically established in Canada; 

·        72. 
(1) Judicial review by the Federal Court with respect to any matter -- a decision, determination or order made, a measure taken or a question raised -- under this Act is commenced by making an application for leave to the Court. 
* * *

·        12.(2) La sélection des étrangers de la catégorie "immigration économique" se fait en fonction de leur capacité à réussir leur établissement économique au Canada. 

·        (2) 
Ils établissent et régissent les catégories de résidents permanents ou d'étrangers, dont celles visées à l'article 12, et portent notamment sur : 

·        a) 
les critères applicables aux diverses catégories, et les méthodes ou, le cas échéant, les grilles d'appréciation et de pondération de tout ou partie de ces critères, ainsi que les cas où l'agent peut substituer aux critères son appréciation de la capacité de l'étranger à réussir son établissement économique au Canada; 

·        72. 
(1) Le contrôle judiciaire par la Cour fédérale de toute mesure -- décision, ordonnance, question ou affaire -- prise dans le cadre de la présente loi est subordonné au dépôt d'une demande d'autorisation. 
Immigration and Refugee Protection Regulations, SOR/2002-227

·        75. 
(1) For the purposes of subsection 12(2) of the Act, the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec. 
·        76. 
(1) For the purpose of determining whether a skilled worker, as a member of the federal skilled worker class, will be able to become economically established in Canada, they must be assessed on the basis of the following criteria: 

·        (a) 
the skilled worker must be awarded not less than the minimum number of required points referred to in subsection (2) on the basis of the following factors, namely, 

·        (i) 
education, in accordance with section 78, 
·        (ii) 
proficiency in the official languages of Canada, in accordance with section 79, 
·        (iii) 
experience, in accordance with section 80, 
·        (iv) 
age, in accordance with section 81, 
·        (v) 
arranged employment, in accordance with section 82, and 
·        (vi) 
adaptability, in accordance with section 83; and 

·        (b) 
the skilled worker must 

·        (i) 
have in the form of transferable and available funds, unencumbered by debts or other obligations, an amount equal to half the minimum necessary income applicable in respect of the group of persons consisting of the skilled worker and their family members, or 
·        (ii) 
be awarded the number of points referred to in subsection 82(2) for arranged employment in Canada within the meaning of subsection 82(1). 

·        ... 

·        (3) 
Whether or not the skilled worker has been awarded the minimum number of required points referred to in subsection (2), an officer may substitute for the criteria set out in paragraph (1)(a) their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada if the number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada. 
·        (4) 
An evaluation made under subsection (3) requires the concurrence of a second officer. 
* * *

·        75. 
(1) Pour l'application du paragraphe 12(2) de la Loi, la catégorie des travailleurs qualifiés (fédéral) est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada, qui sont des travailleurs qualifiés et qui cherchent à s'établir dans une province autre que le Québec. 
·        76. 
(1) Les critères ci-après indiquent que le travailleur qualifié peut réussir son établissement économique au Canada à titre de membre de la catégorie des travailleurs qualifiés (fédéral) : 

·        a) 
le travailleur qualifié accumule le nombre minimum de points visé au paragraphe (2), au titre des facteurs suivants : 

·        (i) 
les études, aux termes de l'article 78, 
·        (ii) 
la compétence dans les langues officielles du Canada, aux termes de l'article 79, 
·        (iii) 
l'expérience, aux termes de l'article 80, 
·        (iv) 
l'âge, aux termes de l'article 81, 
·        (v) 
l'exercice d'un emploi réservé, aux termes de l'article 82, 
·        (vi) 
la capacité d'adaptation, aux termes de l'article 83; 

·        b) 
le travailleur qualifié : 

·        (i) 
soit dispose de fonds transférables -- non grevés de dettes ou d'autres obligations financières -- d'un montant égal à la moitié du revenu vital minimum qui lui permettrait de subvenir à ses propres besoins et à ceux des membres de sa famille, 
·        (ii) 
soit s'est vu attribuer le nombre de points prévu au paragraphe 82(2) pour un emploi réservé au Canada au sens du paragraphe 82(1). 

·        ... 

·        (3) 
Si le nombre de points obtenu par un travailleur qualifié -- que celui-ci obtienne ou non le nombre minimum de points visé au paragraphe (2) -- n'est pas un indicateur suffisant de l'aptitude de ce travailleur qualifié à réussir son établissement économique au Canada, l'agent peut substituer son appréciation aux critères prévus à l'alinéa (1)a). 
·        (4) 
Toute décision de l'agent au titre du paragraphe (3) doit être confirmée par un autre agent. 

CORRUPT IMMIGRATION OFFICER TO BE SENTENCED NEXT WEEK, APOLOGIZES IN COURT

See CTV Video clip below. The Crown is requesting four year sentence, judge to rule next week. He was working at CIC Etobicoke in Toronto and dealing exclusively with Humanitarian and Compassionate grounds applications. The question is what will happen with any applicant who may have gone along with his scheme to gain residency.

Citizenship officer who stole from newcomers apologizes | Toronto

LARGE SCALE MARRIAGE SCAM ALLEGED, 39 PEOPLE ALREDY CHARGED< MANY MORE EXPECTED

A huge marriage scam has been uncovered. Hundreds of people appear to be involved:

RCMP finds hundreds involved in fake marriage immigration scam

 

The RCMP have charged a first batch among hundreds of people allegedly involved in an immigration scam in which Canadian women married in exchange for money so that their North African "husbands" could stay in the country.
As part of Operation Conjugal -- an ongoing investigation into the legitimacy of about 315 suspicious marriages that took place between 2007 and 2009 -- police from the immigration and passport section laid 78 new charges against 39 people Tuesday. The charges include misrepresentation and procuring feigned marriage, RCMP Constable Erique Gasse said.
This first group of 39 people, out of a total of 630 people to be charged under Operation Conjugal, are to appear in court Oct. 16.
The early part of this investigation led last February to the dismantling of an organization that was allegedly involved in illegal immigration.
Amadou Niang, 56, who police say is a bogus immigration consultant and the mastermind behind the scheme, appeared briefly in the Montreal courthouse Tuesday and is to return Oct. 23. His lawyers said there may be a plea bargain.
In 2009, police began investigating the suspicious marriages, many of which involved Canadian women of Haitian origin between age 20 and 30.
The RCMP allege in a news release that Niang, a Canadian citizen, provided advice on "how to submit misrepresented facts to Citizenship and Immigration Canada to people whose visas were due to expire."
"Specifically, he organized fake marriages with the assistance of accomplices to allow these individuals originating from North Africa to remain in Canada," the statement says.
Niang already appeared in Quebec Court in March to face 42 related charges, including offences under the Immigration and Refugee Protection Act.
Anyone with information about suspected illicit immigration activity can call the RCMP at 514-939-8306 begin_of_the_skype_highlighting FREE 514-939-8306 end_of_the_skype_highlighting. All tips are confidential, the force says.

Sunday, August 26, 2012

CUBAN BASEBALL PLAYERS SEEKING REFUGE IN CANADA

The Calgary Herald reported the story below. I had represented dozens of Cubans who fled due to Castor's Communist policies in the past, when he recalled from the former Soviet Union in 1992.

 

Two Cuban ballplayers hope to stay in Canada

 

Team Cuba's pitcher Mabel Cuello gets a hug after being relieved from the game during IBAF Women's Baseball World Cup game action against Team USA at John Fry Park in Edmonton on Wednesday August 15, 2012.

Photograph by: Larry Wong, Edmonton Journal

 
EDMONTON - Two of the three Cuban players who failed to show up for Sunday’s closing ceremonies at the Women’s Baseball World Cup in Edmonton are hoping to adopt Canada as their new home.
Pitchers Lianni Nieves Rodriguez and Olga Lidia Hernandez Guevara have been in hiding since they went missing and have begun the process of attempting to apply for immigration.
In all, four players bolted from the Cuban women’s national team during the 10-day tournament, including 21-year-old outfielder Odrisleisis Pequero Del Sol, who defected to the United States. There is no information regarding the identity or status of the other player.
Rodriguez and Guevara both come from Ciego de Avila, a hotbed for beisbol in the central part of Cuba, 460 kilometres east of Havana.
A 21-year-old right-hander, Guevara appeared in three games at the Women’s World Cup and was the losing pitcher in an 11-5 defeat by Venezuela. A left-hander, Rodriguez was the winner in Cuba’s only victory of the tournament, 13-5 over the Netherlands on Aug. 17. She celebrated her 22nd birthday in Edmonton on Tuesday, two days after failing to show up at the closing ceremonies.
Cuba finished last among eight teams at the event, which was won by Japan. Team USA won a silver medal, with Canada winning a bronze.
Danielle Vlemmiks, a communications adviser and regional media spokesperson for Citizenship and Immigration Canada, said privacy regulations prohibit the agency from offering comment. In 2011, 219 Cubans filed refugee claims in Canada, with 58 per cent granted status.
Although it has not been unusual for members of the Cuban men’s national team to defect at international tournaments, this is the first time members of its women’s squad have gone missing while playing abroad.
Three players from the junior men’s team defected in Edmonton in 2008, prompting an angry call from Cuban leader Fidel Castro to Ron Hayter, executive director of the Edmonton Baseball Federation. Two of those players — Noel Argüelles and José Iglesias — later signed multimillion dollar contracts with major league teams.
Jen Martinez, an instructor at the Fiesta Cubana Dance School in Edmonton, said it is a difficult for Cubans to make the transition to living in Canada.
“It’s a culture shock,” said Martinez, whose husband, Orlando founded the dance school and is a Cuban immigrant. “There is a language barrier, it is cold, suddenly people have the freedom of choice. It is definitely quite hard if you aren’t prepared for it and don’t have a support system in place.”

Friday, August 24, 2012

LIBYAN DIPLOMATS SEEKING REFUGEE STATUS?

See report from the CBC below. The question of diplomats seeking refugee status or committing crimes and asserting immunity from prosecution has is a thorny one: over the last few years, there have been dozens of incidents where members of the diplomatic corp have hidden behind immunity, yet they are quick to use our laws to gain protection when their friends at home are ousted. Canada is not the only country with the problem, but it certainly could make diplomatic immunity more limited and not extensible to family members. Right now, when a diplomat commits a crime, the only remedy is to have his country recall him, or to expel him.


Expelled Libyan diplomats claimed refugee status in Canada - Politics - CBC News

Thursday, August 23, 2012

ONLINE ROMANCES RAISE QUESTIONS, MOTIVES AN ISSUE

The story below is hardly unique, and is happening with increasing frequency: an older Canadian male meets a younger Filipino woman online, travels to meet her, things appear to go well, they get married, he sponsors her to come to Canada and is refused. There is nothing unusual about that, except the frequency. With the advent of online dating, and with the increased accessibility to computing gin developing countries, this is now commonplace. On the other hand, the reasons why the spouse overseas marries someone she met online is coming under increasing scrutiny.

Marriage with Filipino woman not a fraud, Alberta man says - Edmonton - CBC News

Wednesday, August 22, 2012

LANGUAGES SKILLS CRITICAL IN GRANT OF CITIZENSHIP

See case below. I find it amazing that a person who cannot speak English, as noted by the court, would even be considered for citizenship.  The court turned this case into a lecture about the privilege of obtaining citizenship.


Shah v. Canada (Minister of Citizenship and Immigration)
Between Rehana Aziz Shah, Applicant, and
Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1072

2012 FC 852

Docket T-9-11

 Federal Court
Calgary, Alberta

Zinn J.


Heard: July 4, 2012.
Judgment: July 5, 2012.

(13 paras.)


REASONS FOR JUDGMENT AND JUDGMENT

1     ZINN J.:-- This is an appeal of a decision of a Citizenship Judge who did not approve Mrs. Shah's application for citizenship.

2     Mrs. Shah is a citizen of Pakistan. She became a permanent resident of Canada on September 24, 2002, and submitted an application for citizenship on November 5, 2008.

3     On November 9, 2010, Mrs. Shah attended an interview with a Citizenship Judge. The Citizenship Judge assessed her physical presence in Canada, her language skills and her knowledge of Canada.

4     After the interview, the Citizenship Judge sent the applicant a letter entitled "ADDITIONAL INFORMATION REQUEST FOR CITIZENSHIP APPLICATION". That letter states: "You may provide additional supporting documents and/or evidence that you deem relevant to proving your physical presence in Canada throughout your relevant period 6 Nov. 2004 - 6 Nov. 2008." She was given 30 days to submit that information.

5     Before the expiry of the 30 day period, the very next day, in fact, Mrs. Shah received a letter rejecting her citizenship application. The Citizenship Judge found that she failed to satisfy the language requirement at paragraph 5(1)(d) and the knowledge requirement at paragraph 5(1)(e) of the Citizenship Act, RSC 1985, c C-29. The Citizenship Judge's comment relating to Mrs. Shah's language abilities are reproduced below:

 

·       The applicant was able to say hello and tell me her name, but unable to spell it when asked. She indicated the weather was cold outside, and able to understand to sit down. 

 

·       1) 

I asked the applicant to tell me about her country and she began talking about her family. She was unable to tell me about the weather there, foods, or holidays, as I had requested. She was able to use a short sentence or two, but unable to use connector words. 

 

·       To confirm, I asked her to tell me about her family. She was able to tell me how many sons and daughters she had and some of their occupations, but unable to form complete sentences or use connector words. 

 

·       2) 

I asked the applicant to tell me about her first day in Canada. She understood the idea of her first day, but was unable to form sentences or describe any event that happened that day. Any verbs used were in present tense. 

 

·       To confirm, I asked her what she did before coming to Canada. No verbs used were in past tense. 

 

·       3) 

Applicant was able to express satisfaction with living in Canada, but not in sentences, and did not express dissatisfaction. 

 

·       To confirm, I asked what season she liked the best and which she liked the least. She expressed satisfaction with holidays and December. She expressed it was very nice and Christmas was very cold. 

 

·       4) 

I asked her where she likes to go shopping, and directions for how she would get there. She was unable to do this clearly. 

·       5) 

She was able to identify items in my office when asked specifically which objects I pointed to. 

·       6) 

When asked about what she does in her free time, she listed several nouns, and used very few verbs, all in present tense. She was unable to formulate a proper sentence. 

6     As for the applicant's knowledge test, the Citizenship Judge wrote:

 

·       At the hearing, you were able to answer eleven out of 20 questions correctly. A score of fifteen out of 20, is required to pass. You were unable to answer fully and correctly questions in respect to voting procedures related to elections, and one or more of the chief characteristics of each of: Canadian political and military history, social and cultural history, political structure; physical and political geography, and characteristics of Canada, other than those referred to above. 

7     The Citizenship Judge considered whether or not to make a recommendation for an exercise of discretion under subsections 5(3) and 5(4) of the Act but found there was no evidence presented at the hearing to justify it.

8     Mrs. Shah submits that the Citizenship Judge was prevented from issuing her decision until the 30 day period for providing the additional information had passed. I do not agree. The additional documentation related to Mrs. Shah's presence in Canada, not her abilities in English or her knowledge of Canada. As the decision to reject her application was made based on those failures, and not her presence in Canada, there was no impediment to the Citizenship judge rendering her decision, notwithstanding the earlier request for additional information.

9     I further find that the decision of the Citizenship judge as to Mrs. Shah's language ability was reasonable. She made her submissions to this Court through an interpreter. Moreover, she brought with her to the citizenship hearing the same interpreter. Both appear to have been upset when the Judge indicated that the interpreter was to remain silent during the hearing. When a part of the purpose of the hearing is to assess language ability, that is an appropriate request. The fact that an applicant brings an interpreter with her strongly suggests that language may be an issue.

10     Mrs. Shah asks the Court to recognize that her English skills are adequate. As she spoke not one word of English during the hearing of this appeal that is not possible, even if the Court could substitute its opinion for that of the Citizenship judge. She says that a person of her age is likely to stumble when asked the fast and direct questions that she was by a Citizenship Judge with an oriental accent which was hard to understand. However, no such complaint was made to the Citizenship Judge and it is too late to raise such issues for the first time on appeal.

11     Mrs. Shah says that she is the sole caretaker of her 64-year-old husband who wishes to travel to Pakistan and that she has to go with him and, for piece of mind, would like her citizenship application completed before then. She further says that she and her husband are incapable of spending the winters in Canada. As a result, she says that if she were to submit a new citizenship application she would be refused due to not meeting the minimal physical presence in Canada requirement. All this may be correct, however, none are sufficient to suggest that the Citizenship Judge erred in her decision or that there are sufficient grounds to return this for consideration as to whether to make a recommendation that citizenship be granted notwithstanding her failures regarding language and knowledge of Canada.

12     A grant of citizenship from a country where one was not born is a privilege, not a right. The citizens of Canada, through their government, have established minimum requirements that one must meet if the privilege of citizenship and the rights that come with it are to be granted. An ability to communicate with other citizens and to have a basic fundamental knowledge of the history, political structure, and characteristics of Canada are reasonable requirements to be granted the privilege of citizenship.

13     The appeal is dismissed.

JUDGMENT

THIS COURT'S JUDGMENT is that the appeal of the decision of the Citizenship Judge denying the application for citizenship is dismissed.

ZINN J.
Visalaw International CS CBA OBA-ABO AILA IPBA NYSRA ABA IBA