SERGIO R. KARAS CANADA IMMIGRATION BLOG www.karas.ca

DMASCUS VISA POST CLOSED

2012-01-31T16:07:00.000-05:00

The government has CLOSED the visa post in Damascus, Syria until further notice. See Operation Bulletin below.

Operational Bulletin 380 - January 31, 2012

IMMIGRATION CORRUPTION TRIAL CONTINUES IN OTTAWA

2012-01-31T06:39:00.003-05:00

The trial of immigration officials accused of corruption continues. Interestingly, the "clients" appear to have sought to gain an advantage by seeking to "pay" for "someone to look into their files". Perhaps they thought bribing officials was quite normal, as it is done in many countries around the world. That conduct should also be the subject of scrutiny. I find it amazing that someone can say that he did not think there was anything wrong with giving a payment to an official, directly or indirectly, especially when all these individuals seem to have been in Canada for some time.

$300 payment smoothed the way for permanent residency, Ottawa court told

By Matthew Pearson, The Ottawa Citizen
January 30, 2012

OTTAWA — After shelling out thousands of dollars to a lawyer to help her and her children gain permanent residence in Canada, Abtissam El-Zein paid a man $300 to look into her immigration file and, within weeks, got exactly what she wanted, an Ottawa court heard Monday.
El-Zein was testifying in the trial of Diane Serre, a senior Citizenship and Immigration Canada manager accused of teaming up with Issam Dakik to take money from mostly Arab immigrants in exchange for fast-tracking their applications.
The Crown alleges Dakik would meet with the applicants and collect the money before contacting Serre, who would use her influence as a supervisor in the department’s Catherine Street office.
Serre, 41, has pleaded not guilty to 28 charges, including multiple allegations of fraud against the government and breach of trust of a public official. She is also charged with one count of bribery.
Dakik, who has pleaded guilty to his role in the scheme, along with credit card fraud, was sentenced to two years and nine months in prison in 2006. At the time, he admitted he paid Serre a portion of the proceeds of the scheme.
The scheme allegedly began in January 2003 and continued until December 2004, when Serre and Dakik were arrested by RCMP in an operation dubbed “Project Argon.” Nine applicants made the illegal cash payments, which the RCMP said at the time of Serre’s arrest ranged from between $4,000 and $25,000.
Through an Arabic interpreter, El-Zein told the court she came to Canada from Lebanon in 1999 with her husband and three children.
Her husband later died, and she and her children applied for refugee status to remain in Canada. The family appealed after their application was denied in 2001.
The immigration department later determined that the family would not be at risk if they returned to Lebanon and ordered them to be deported in 2004. They applied for refugee status on compassionate and humanitarian grounds and hired a lawyer to help navigate the system.
But El-Zein said she became frustrated with the lawyer’s costly efforts.
“I didn’t feel she was helping,” she said. She had paid the lawyer more than $5,000, in addition to the $1,500 application fee, and had nothing to show for it.
It was around that time that one of El-Zein’s friends gave her Dakik’s telephone number.
Their relationship was brought to life in the courtroom Monday through a dozen wiretapped telephone calls recorded between Nov. 25 and Dec. 9, 2004.
In a Nov. 25 call, El-Zein spells out her name and provides both her birthdate and immigration file number. She also outlines the details of her case and agrees to pay the man $300 in order to get a person he knows inside the immigration department to look at the file, she testified.
The next day, in a recorded call, Dakik tells El-Zein he has news about her file and arranges a time to come to her house later that evening, which is when she handed over the cash. Dakik doesn’t provide a receipt, the court heard.
Then, on Dec. 2, El-Zein receives a call from an unidentified woman who works at Citizenship and Immigration Canada. Speaking to El-Zein’s son, the woman says the department will look at their file as soon as possible. “We’ll take a look and we’ll give you a call early next week,” the woman is heard saying during the short telephone call.
El-Zein could not identify the woman’s voice, but said in her dealings with the immigration department over the years, she couldn’t remember ever being called before.
Five days later, Dakik calls to say the immigration department will soon call El-Zein and ask her to come down to their Catherine Street office to get her papers. There’s another mention of payment, with Dakik pledging that he hoped the next instalment wouldn’t exceed what she’d already paid him.
On Dec. 9, the final wiretapped call played in court, El-Zein tells Dakik she’s been to immigration and has finally got her papers.
The court also heard from Mahmoud Ahmad Zbib, who came to Canada from Lebanon in 1988.
His two sisters followed him in 1999. One married a Canadian and became a permanent resident, while the other filled out the application and later hired a lawyer to follow up with the immigration department.
But her lawyer subsequently died and, fearing his sister’s file might get lost, Zbib turned to Dakik, whom he’d met socially a few times.
Zbib gave Dakik the particulars of his sister’s file because Dakik claimed to know a lawyer at Citizenship and Immigration who could help. It would cost, Zbib testified that Dakik said, but an amount was never specified.
Zbib’s sister was soon called to the Catherine Street office to pick up her permanent resident card.
Zbib told the court that about two or three months after learning Dakik had been arrested, the pair met at a Carling Avenue shawarma shop. Dakik told Zbib not to tell anyone about the help he gave the man, nor the money. “He asked me not to talk to anybody about what happened with my sister’s papers,” Zbib said.
Under cross examination, Zbib said he never suspected there was anything amiss about his dealings with Dakik.
The trial continues.

HONOUR KILLINGS: GUILTY AS CHARGED

2012-01-30T06:27:00.001-05:00

The time has come to prevent people who have twisted ideas about murdering relatives for "honour" from coming to Canada in the first place. This is unacceptable in a free society. Sadly, the taxpayers will now have to pay for these individuals to be kept in jail for years to come.Simply brutal.

Shafia accused guilty of first-degree murder News National Post

EDITORIAL EXPRESSES CONCERN OVER CANADA'S EXTRADITION POLICY

2012-01-29T09:07:00.001-05:00

See below Winnipeg Free Press editorial. I do not understand why anyone is surprised, this has been going on for years: convicted and alleged terrorists, murderers, criminals, and other unsavoury characters have found a way to use Canada as a place where they can stall the rule of law and the wheels of justice. And to add injury to insult, they get the taxpayers to pick up the tab for their legal fight through legal aid. This is very concerning indeed. It makes a mockery of Canada.

It is time to change the nonsensical policy of allowing years of court battles at taxpayers expense, and to deny the use of Canada to international thugs. Incidentally, I would like to know who paid the legal fees for Leon Mugesera over all the years he was in Canada, and whether he collected any social assistance or other benefits during that time, and find a way to force him to repay those costs. The use of legal aid should be public information and excempt from privacy legislation.

Canada risks being seen as pandering to mass murders - Winnipeg Free Press

Winnipeg Free Press - PRINT EDITION

Canada risks being seen as pandering to mass murders
By: The Red Deer Advocate

Posted: 01/28/2012 1:00 AM

Here's an ethical dilemma for you: does a person who may face torture deserve more compassion than hundreds of thousands of innocent murder victims?

Apparently Canada's immigration laws can't make a distinction or, if it does, seems to consider the threat of torture more inhumane. At least that seems the case by allowing an alleged killer to gain protection in Canada against punishment for his possible involvement in one of the biggest mass murders in modern history.

Our immigration rules afforded freedom to Leon Mugesera, who is accused in his homeland of Rwanda as being one of the trigger men the 1994 genocide that saw a 100-day massacre claim about one million Tutsis and Hutus.

Mugesera fought his deportation through the seemingly endless court proceedings that are entitled to him under our laws. His luck finally ran out on Monday, when the courts ordered him on a plane to Rwanda at Montreal's Pierre Elliott Trudeau Airport.

The sticking point during the laborious proceedings was that Mugesera could face torture if returned.

This country has been reluctant to deport suspected criminals, on "ethical grounds," no matter how serious their crimes. Torture and the death penalty are among the reasons.

But, essentially, it means we apply our standards of justice to other countries through our immigration process.

Serial killer Charles Ng, who evaded California authorities for the sex-torture murders of between 11 and 25 people by sneaking into Canada, enjoyed the same luxury.

Ng and Leonard Lake carried out these horrific executions on Lake's California ranch in 1983 and videotaped the gruesome details. Lake committed suicide after his arrest in 1985, while Ng fled to Calgary and was captured that same year. After a lengthy extradition battle, during which Canadian authorities refused to turn him over to the U.S. because he faced a death sentence if convicted, he was finally handed over in 1998. He now sits on death row in San Quentin State Prison.

As a nation, we must take care not to gain a reputation for pandering to and protecting murderers from the justice of their own countries. It's an extremely costly process to taxpayers and, ultimately, can mean we house other nations' criminals in our prisons.

It is time we re-examined the avenues of appeal open to such criminals and alleged criminals.

In 1992, Mugesera, then a fiery political Rwandan operative, delivered a blistering speech calling the Tutsis "cockroaches" and urging their extermination. Shorty after the speech, he was charged with inciting hatred and fled to Canada for protection.

While a handful of Mugesera's Canadian supporters wept at the airport on Monday, Rwandan authorities applauded Canada's decision, saying it was "the right thing."

MAJOR IMMIGRATION REFORM PLANNED

2012-01-29T08:43:00.001-05:00

Reports indicate that the government is planning to completely revamp the immigration selection system:

Tories pitching 'significant' immigration reform Canada News Toronto Sun

MISSING TRANSCRIPT RESULTS IN NO POINTS FOR SPOUSE EDUCATION

2012-01-28T09:47:00.000-05:00

A missing transcript for teh spouse's edication confirmin gyears of full taime studies results in the refusal of the application fo rremanent residency:

Siddiqi v. Canada (Minister of Citizenship and Immigration)

Between Javed Siddiqi, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 59

2012 FC 55

Docket IMM-1216-11

Federal Court
Toronto, Ontario

O'Reilly J.

Heard: September 27, 2011.
Judgment: January 17, 2012.

(22 paras.)

REASONS FOR JUDGMENT AND JUDGMENT

O'REILLY J.:--

· I. Overview

1 In 2007, Mr. Javed Siddiqi, a citizen of Pakistan, applied for permanent residence to the Canadian High Commission in London as a skilled worker. He relied on an immigration consulting company, Aries International, to act as his representative.

2 His application was dismissed because he fell four points short of the required threshold of 67 points. He argues that he was entitled to be credited with a further four points in recognition of his spouse's educational credentials. However, his application did not include a transcript of his spouse's grades. He submits that this was the result of an administrative error, either on the part of Aries International or Immigration Canada. He maintains that it should have been clear to Immigration Canada that the transcript was missing from his file. Therefore, in fairness, he should have been given a chance to provide the missing transcript before his application was dismissed. He asks me to order a reconsideration of his file by a different officer.

· II. Factual Background

3 After it confirmed receipt of Mr. Siddiqi's application, the High Commission advised him that it would provide him with a complete list of the required documents once his application was ready to be assessed. He would then have four months to prepare and submit his documents.

4 That letter was sent in March 2010. It advised Aries International that Mr. Siddiqi was required to submit all of his supporting documentation (including copies of educational credentials and transcripts for him and his spouse) within 120 days, and that there was no obligation on immigration officials to request additional documents that had not been provided within that timeframe.

5 On July 28, 2010 (after the 120-day deadline had passed) the High Commission received a letter from Aries International and a package of documents supporting Mr. Siddiqi's application. The documents were forwarded to Ottawa for processing.

6 The letter from Aries International stated that the supporting documents included, under the heading "Spouse", a "Copy of certificate and marksheet for Bachelor of Commerce from University Karachi - Faculty of Business Administration & Commerce, Karachi, Pakistan".

7 From September 2010 to January 2011, Mr. Siddiqi sent three emails to Ottawa inquiring about the status of his file. The first email, on September 29, 2010, stated that all the required documents listed in the March 2010 letter had been submitted. Mr. Siddiqi also asked when he could expect to receive the medical request, and when his visa would be issued. He said he required this information because his son would be applying to McGill and other Canadian universities that winter. Ottawa responded on October 5, 2010, stating that it could not confirm receipt of documentation or respond to status check inquiries at that time.

8 On January 9, 2010, Mr. Siddiqi sent a second email, which again stated that all documents listed in the March 2010 letter had been submitted and received, and again asked when he could expect the medical request. Ottawa replied on January 10, 2010, stating that the file had not yet been reviewed by an officer and that once it was, Mr. Siddiqi would be notified.

9 Mr. Siddiqi emailed Ottawa a third time on January 13, 2011, again asking when the file would be reviewed. He got the same response.

10 On January 28, 2011, Mr. Siddiqi's application was refused because he did not obtain the minimum number of points required.

11 In his refusal letter, the officer stated: "I gave you no point [sic] for Spousal education - there were no transcript [sic] for your spouse's bachelor's degree, as was requested in the letter sent by our London office."

12 Through counsel, Mr. Siddiqi asked for his application to be reassessed. The officer dismissed this request, stating: "Only a single copy of a post-secondary diploma for the spouse was submitted but no transcript. Hence no evidence as to the number of years taken to complete it was present, and no seccondary [sic] education evicence [sic] had been submitted... The file wil [sic] remain closed".

· III. Was Mr. Siddiqi Treated Unfairly?

13 Mr. Siddiqi argues that the officer wrongly applied the 120-day deadline and, by doing so, refused to give Mr. Siddiqi an opportunity to complete his application by submitting the missing transcript. Mr. Siddiqi also argues that the officer had a duty to inform him of the omission and give him a reasonable opportunity to supply the transcript.

14 While Mr. Siddiqi was told that he had to submit his documents within 120 days, it is clear that the officer considered his application even though the documents were filed late. A new policy (pursuant to Citizenship and Immigration Canada Operational Bulletin 120, or OB 120, "Federal Skilled Worker (FSW) Applications - Procedures for Visa Offices") applies to applications filed on or after February 27, 2008 (after Mr. Siddiqi's application was filed) and imposes strict enforcement of the 120-day deadline, but I see no evidence that Mr. Siddiqi's application was treated as being subject to this rule.

15 With respect to the duty to give Mr. Siddiqi notice that his application was incomplete, Mr. Siddiqi maintains that it would have been obvious to the officer that the crucial transcript had originally been submitted and somehow went missing.

16 The list of documents submitted by Mr. Siddiqi's agent, Aries International, referred to a "marksheet" from the University of Karachi. Mr. Siddiqi submits that this was obviously a reference to a transcript of his spouse's grades. The officer should therefore have noticed, when he reviewed the file and found no transcript, that this important document was missing - whether Aries International had erred in filing it or it somehow went missing at Immigration Canada's end. Either way, the officer should have realized that something was amiss and given Mr. Siddiqi a chance to correct it. This is especially so, he submits, because his emails manifested his concern about the completeness of his application.

17 In my view, the burden was on Mr. Siddiqi to ensure his application was complete. He engaged an agent to assist him in this and, therefore, he had an obligation to ensure that the agent filed the necessary documents. His emails did not display a specific concern about the completeness of his application; they related more to the timing of events.

18 In addition, there is no evidence before me that any transcript existed when Mr. Siddiqi made his application or even that any exists now. Among the documents submitted in support of Mr. Siddiqi's application was a "marksheet" from the University of Karachi. But this was not a transcript. The marksheet is simply a summary of the distribution of grades within the class. No transcript was presented in the original application, in the request for reconsideration, or on this application for judicial review.

19 Accordingly, I cannot see how the officer could have been expected to conclude that a transcript was likely available, that it had somehow gone missing, and that Mr. Siddiqi could produce it if given a chance. This is unlike the situation where an applicant had explicitly complied with earlier instructions about what documents to provide, and the instructions were revised at the time the application was considered: Noor v Canada (Minister of Citizenship and Immigration), 2011 FC 308; nor was this a situation where there was an issue about the credibility or genuineness of the evidence where fairness would require that the applicant be given a chance to address the officer's concerns: Shah v Canada (Minister of Citizenship and Immigration), 2011 FC 697, at para 30.

20 Accordingly, I cannot conclude that Mr. Siddiqi was treated unfairly. His application was simply incomplete.

· IV. Conclusion and Disposition

21 Having found no basis for concluding that Mr. Siddiqi was treated unfairly, I must dismiss this application for judicial review. Counsel for Mr. Siddiqi has submitted the following question for certification:

· Whether or not in a missing document case there can ever be a question arising of procedural fairness, particularly as the immigration policy has moved into a no tolerance immigration processing system which does not allow an applicant to be able to determine in advance whether or not a document he sent has gone missing and whether or not it is the fault of the handling of the file inside the immigration office. The question therefore proposed is whether the concept of procedural fairness so boldly pronounced in the case of Muliadi v Canada, [1986] 2 FC 205 by the Federal Court of Appeal has been completely closed down by a system of no tolerance processing in which the visa officer can avoid attempts to determine whether or not his application was completely received, and the fact that the submission cover letter with the list of documents demonstrated that the missing document had been sent, or that the applicant had not ignored the checklist which he received requesting the general submission? In the alternative, did procedural fairness require the officer to re-open application?

22 In my view, this proposed question is fact-specific and relates primarily to an issue not raised here - there was no evidence that a document was missing and, therefore, there is no question about whether the officer had a duty to give the applicant a chance to complete the file. In addition, the question of whether an officer may have a duty to re-open an application does not arise here because it is the refusal itself that is the subject of this application for judicial review, not the refusal to reconsider the application. No question will be stated.

JUDGMENT

THIS COURT'S JUDGMENT is that

· 1. The application for judicial review is dismissed.

· 2. No question of general importance is stated.

O'REILLY J.

IMMIGRATION AND RETIREMENT IN CANADA: COLLISION COURSE OR SOLUITION?

2012-01-28T09:16:00.002-05:00

Harper’s message to Canadians: Rethink your retirement

The Globe and Mail

By BILL CURRY AND STEVEN CHASE AND JOE FRIESEN
From Saturday's Globe and Mail

Moving quickly to address concerns around Old Age Security reform, Conservatives say any changes would be phased in gradually

Ottawa is asking Canadians to rethink their senior years, sending a clear message that individuals must save more on their own for retirement.
Faced with an aging population that he claims poses a threat to our social programs and services, Stephen Harper unveiled an ambitious blueprint for change this week that takes aim at immigration, trade and energy policies. But perhaps the most ambitious - and controversial - of these changes will be in the area of retirement reform.
The obvious motivation is cost. The Prime Minister's Office and other government officials pointed reporters to the most recent actuarial report on Old Age Security, which estimates the cost of the program will climb to $108-billion in 2030 from $36.5-billion in 2010.
But retirement expenditures are only one part of the challenge. One of the biggest obstacles posed by Canada's aging demographic is the labour force: keeping people working for longer. At the moment, there are 4.6 workers for every person over 65 in Canada. That ratio, known as the dependency ratio, is expected to drop below three-to-one by 2031, which would mean fewer people working and paying taxes to support social programs. Canadians also live longer now, so someone retiring at 65 can expect to collect a pension for nearly 20 years.
As Ottawa grapples with how best to reform the system, the question is not merely whether Canadians will have to shoulder greater responsibility for their retirement needs, but whether they will have to work longer as well.
Vera Howe, a 61-year-old Toronto mother and grandmother, said she and her husband were very upset by the Prime Minister's speech and the prospect of a raised age of eligibility for OAS.
She works with people with developmental disabilities. It's a physical job that requires a lot of lifting. Her husband is a tradesman who works in a factory and in recent years has suffered two injuries. She wants to retire at 65, but without OAS she'll be in financial trouble, she said.
"I would be in poverty," she said. "I couldn't even pay the mortgage. And I would still have a mortgage, mind you."
"You start working at 18 years old, you've worked this far only to see the goalposts moved away."
Canadians who pay into the Canada Pension Plan receive benefits, but unlike CPP, which has a pool of money behind it, the OAS program is paid out of government revenues. OAS eligibility is based on a senior's income.
A day after Mr. Harper's speech in Davos, Switzerland, the Conservative government moved to address concerns, saying any changes would be phased in gradually.
The Conservatives never mentioned changes to Old Age Security during last year's election campaign, yet Ottawa confirmed Friday that it is looking at changes to OAS to make it financially stable over the long term.
Ted Menzies, the Conservative Minister of State for Finance who has held extensive cross-country hearings on retirement issues, said the government hasn't made a final decision on OAS changes.
"We're looking at many different options. I'm not sure just which ones are going to be viewed as being the most effective," he said.
"But we need to also remember that OAS was never intended to fund an entire retirement for anyone," he said. "There is responsibility on the individual to save for themselves."
Most Group of Seven countries are grappling with the problem of unfavourable demographics. While it is undoubtedly a challenge for Canada, University of British Columbia economist Kevin Milligan said the country is in a much better position in this regard than almost any of its G7 peers, all of which have already raised retirement ages or are debating the issue.
"While we have a dependency ratio that's going in the wrong direction in Canada ... the issue is not as big as it is for Italy, Germany, Japan. Those places have serious crises," he said. "That doesn't mean we shouldn't think about it though."
Don Drummond, a former senior federal Finance Department official who is now advising the Ontario government, said Ottawa will have to give Canadians "a hell of a lot of notice" before changing the eligibility year for OAS and the Guaranteed Income Supplement, and predicted there will be considerable social impacts if it is implemented.
Mr. Drummond said a 20-year time period - from initial notice to when it's fully phased in - is probably the shortest lead time that a country could give.
"I would think it would have to be 20 to 25 years before you are fully up to age 67," Mr. Drummond said.
"If you're 47 years old today, your life cycle of earnings is kind of set right now by what you've already done. It's not giving you a heck of a lot of time."
One potential solution to the demographic problem is tapping the potential of new Canadians, whose job participation is disproportionately lower than the country's average. By 2031, roughly 60 per cent of Canadians over 15 will be in the work force, down from nearly 67 per cent today, according to Statistics Canada. That would be the lowest rate since the 1970s. However, the report noted that if immigrants and visible minorities were to participate in the labour force at the same rate as other Canadians, that drop could be cut almost in half.
Parliamentary budget watchdog Kevin Page says the 2012 budget - long before the next election - is a good place to "front-end load some of the tough decisions" on challenges Ottawa faces.
He said the Harper government's January, 2012, decision to restrict growth in health and social transfers to the provinces as of 2016 has improved Ottawa's fiscal prospects to the extent that Canada could afford to fund existing increases in OAS payments.
"We don't have a long-term sustainability problem," Mr. Page said. "I think he's doing it for broader problems."

ATLANTIC CANADA NOMINEE PROGRAM A FAILURE

2012-01-28T09:03:00.001-05:00

This has been known for a while in immigration legal circles: the Atlantic provinces Provincial Nominee Program was simply one more way for people to obtain residency and then immediately move out of those provinces to Ontario, British Columia or Alberta.

Kenney: Atlantic Canada's immigration plan is flawed CTV News

PROVINCIAL NOMIMEE PROGRAMS ON THE SPOTLIGHT

2012-01-27T08:41:00.001-05:00

Today's editorial in the Globe and Mail is spot on: PNPs require scrutiny and accountability to ensure that immigrants are in fact retained by the provinces.

Provincial nominee program for immigrants on the right track - The Globe and Mail

IS TUNISIAN FUGITIVE STILL IN CANADA?

2012-01-27T06:56:00.001-05:00

Is the Tunisian moneyman still in Canada? How did the authorities lose track of him? Are they incompetent?

Mystery follows fugitive Tunisian tycoon Trabelsi

By Catherine Solyom, Postmedia New

January 26, 2012

Rumour has it Belhassen Trabelsi, the so-called "Godfather" of Tunisia, has left Montreal for Mexico, following in the footsteps of Moammar Gadhafi's son in search of a country with lax anti-corruption and extradition laws.

A newspaper in Tunisia reported two weeks ago that Trabelsi, whose fortune reportedly runs in the billions of dollars, first left Canada for Venezuela hoping for a warmer welcome, before settling on Mexico. There have been no sightings of him since.

But rumours may just be rumours — and observers in Montreal believe Trabelsi is still in Canada, a hot potato the federal government probably wishes it could pass on to another country, as the Immigration, Foreign Affairs and Justice departments struggle to figure out what to do with him next.

The brother-in-law of deposed Tunisian president Zine El Abidine Ben Ali — and, according to a 2008 U.S. government cable released by WikiLeaks, among the most reviled of the former dictator's extended family — Trabelsi, 49, arrived in a private jet at Montreal's Trudeau airport with his wife and children on Jan. 20, 2011, flashing his permanent residency papers. (He has been a permanent resident of Canada since the 1990s.)

It was six days after Ben Ali himself fled Tunisia for Saudi Arabia. Trabelsi's residency was soon revoked, however, because he had not lived in Canada for at least two of the previous five years.

But Trabelsi, fleeing the revolution in Tunisia — and payback for the violence and corruption by which he allegedly amassed his great wealth — quickly sought to appeal that decision. To Canada's dismay, he also applied for refugee status.

The Immigration and Refugee Board is expected to render a decision on Trabelsi's case in the next few days. But it is not clear if he is in fact still in Montreal.

The Canada Border Services Agency won't provide any information about Trabelsi, citing his right to privacy. It won't even say whether it confiscated Trabelsi's passport upon his arrival.

Then again, the CBSA wouldn't necessarily know if Trabelsi left the country of his own accord — Canada doesn't have exit controls.

Haroun Boazzi, a spokesperson for the Association des droits de la personne au Maghreb, says earlier reports that Trabelsi had fled to Venezuela were false.

"I believe he is still in Canada," said Boazzi, who has been lobbying to have Trabelsi, and his assets, repatriated by force to Tunisia. Trabelsi controlled significant portions of the tourism, banking, aviation, real estate and media sectors.

"But he has a huge problem," Boazzi said. "He can't bring his money here."

In March 2011, the federal government passed new legislation to freeze the assets of "politically exposed" persons fleeing Tunisia and Egypt in the wake of the Arab Spring revolutions.

The Freezing Assets of Corrupt Regimes Act makes it a crime to enter into any kind of financial transaction with Trabelsi, No. 8 on a list amended in December to include 123 people from Tunisia and 145 from Egypt.

Trabelsi's holdings in Canada are worth an estimated $10 million. Anyone found guilty of transacting with him can be fined $25,000 or sentenced to five years in jail.

Donald Kattan, one of Trabelsi's lawyers, is believed to be the first to be investigated under the new law. According to La Presse, Kattan received almost $1.4 million from Trabelsi in January 2011, and acted on his behalf to pay for hotel rooms and rent, as well as school fees for his daughters — $28,000 was refunded when his daughters were asked to leave the school last June.

The RCMP's Eric Gasse confirmed Thursday the investigation into Kattan's dealings with Trabelsi is continuing. Kattan wouldn't comment.

Last September, Trabelsi was found guilty in absentia of corruption, unlawful trade in precious metals and unlawful transfer of currency and was sentenced to 15 years by a Tunisian court.

Last December he was found guilty of possession of archeological pieces, and sentenced to another 21 months.

Trabelsi's convictions buttress Tunisia's request to extradite him — if in fact one was made. According to media reports the Tunisian embassy made a first request in January 2011, after Interpol issued a warrant for his arrest, and new Tunisian president Moncef Marzouki repeated his request two weeks ago.

"It's time our Western friends reconsider their way of seeing our countries, and that they treat us as equals and accept to send us our criminals and our money," he told a reporter in Tunis.

But the Foreign Affairs Department will neither confirm nor deny it has received such a request. On Thursday spokesperson Aliya Mawani said via email that "Canada continues to work with the new Tunisian government to ensure that corrupt foreign leaders are held accountable for their actions, in keeping with the principle of the rule of law."

Barring Trabelsi's extradition, the hot potato remains with the Immigration Department, and like Leon Mugesera, who was deported to Rwanda Tuesday after 16 years in Canada, Trabelsi could be here a long time.

While he is appealing the decision to revoke his permanent residency, he remains a permanent resident, said immigration lawyer Stephane Handfield, and as such is free to come and go as he pleases.

Only after a ruling has been made on his appeal will Trabelsi's claim for refugee status be heard, Handfield said. Given his convictions in Tunisia, his claim would surely be denied.

"Mr. Trabelsi might have good motives to say his life is in danger if he is returned to Tunisia but it will be harder to convince them he didn't engage in serious criminality."

Trabelsi could then appeal to the Federal Court. If the negative decision is upheld, the Immigration Department would then assess the risk of him being tortured or killed upon his removal — a process which in the case of Mugesera took six years.

Immigration Minister Jason Kenney would not comment on the case. Instead, spokeswoman Candice Malcolm reiterated his stance.

"Minister Kenney has been clear that improvements to our immigration system are necessary and forthcoming. Our government will ensure that Canada is not the dumping ground for the world's foreign criminals, and that these criminals can no longer hide in Canada among hardworking and law-abiding Canadians."

ONTARIO PROVINCIAL NOMINEE PROGRAM HIGHS AND LOWS

2012-01-27T06:42:00.001-05:00

Ontario seems to be overstating the benefits of the PNP for political purposes. It is nonsensical to compare provincial nominees to federal skilled workers as they are admitted under different criteria and under different categories. Since nominees need a job offer, it stands to reason that they are in longer term employment. Also, the province seems to ignore the fact that most immigrants still come to Ontario, and leave other provinces, except in the West, for lack of economic opportunity.

Canada News: Ontario missing benefits of ‘nominee’ immigrants, report says - thestar.com

Ontario missing benefits of ‘nominee’ immigrants, report says

January 26, 2012
Nicholas Keung

Ontario Immigration Minister Charles Sousa.

Jim Wilkes/Toronto Star file photo

Ontario is lagging behind in reaping the benefits of a program that brings in skilled immigrants more quickly and more successfully, a new government report shows.
A review of the Provincial Nominee Program (PNP), which allows provinces to select their own immigrants based on local economic needs, found that 80 per cent of the selected immigrants are employed in the first year — most of them in their area of expertise. The program fast-tracks immigrants with the right skills, bringing them to Canada in less than a year.
Their average income, depending on province, ranges from $29,600 to $41,700 in the first year, and rises to between $35,200 and $45,100 after three years.
Although newcomers selected through the standard federal skilled immigrant program have a similar employment rate initially, they lag behind the provincial nominees by a full 10 per cent after three years. About 87 per cent of the federal skilled immigrants are employed then, compared with 97 per cent among the nominees.
The federal immigrants tend to earn less than the provincial nominees for the first three years, but do catch up and surpass them after five years.
“PNP has grown a great deal, representing 20 per cent of the total economic class immigration in 2009,” says the Citizenship and Immigration Canada report released Thursday.
“For some provinces, such as Manitoba, New Brunswick and Saskatchewan, the program is the primary vehicle through which they attract immigrants to their province.”
Ontario doesn’t benefit to the same extent, even though it’s still Canada’s top destination for immigrants with almost 120,000 — or 42 per cent of all immigrants — settling here in 2010.
The province was a late-comer to the program, launching its own nominee procedure only in 2007. Between 2005 and 2009, only 1,247 — or 1.2 per cent of the total nominees — came to Ontario.
Ontario Immigration Minister Charles Sousa said the evaluation report “does not fully capture our high retention rates or the high calibre of PNP immigrants coming to Ontario. This is because they used data predominantly from the years before our program was fully up and running.”
Sousa pointed out that the province’s nominee target of 1,000 is set by Ottawa and “has been unilaterally frozen for this year.”
“This is just another reason why Ontario needs a stronger say on immigration selection, to ensure we have the right immigration mix that continues to support our economic prosperity,” he said.
But the highly touted program isn’t without problems.
Thanks to the pre-screening done by the provinces, immigrants coming in through PNP get approved at a rate of 96 per cent, compared with just 50 per cent under the usual federal application program.
But the report raises concerns over the lack of “systematic collection and reporting” of program information and the need for a “strong emphasis on program integrity.”
Serious allegations of corruption and mismanagement have been raised about the program in New Brunswick, Nova Scotia and Prince Edward Island.
“There are differing levels of rigour applied by provinces and territories when confirming applicants’ adherence to eligibility criteria and, as a result, fraud and misuse can occur,” said the report, which surveyed federal and provincial officials and external groups representing unions, employers and immigrant nominees.
“But the general perception was that it was no more likely that there would be fraud (mainly related to jobs) on PNP applications than on any other economic program applications.”
The report calls for the establishment of minimum language standards for all nominees and stronger links between their occupations and specific local labour market needs. It also recommends a monitoring and reporting mechanism to boost the program’s accountability and integrity.

LAWYER INVOLVED IN ALLEGED MASSIVE FRAUD SCHEME EXTRADITED TO US

2012-01-26T06:56:00.001-05:00

Avraham David extradited to U.S., accused in multi-million dollar immigration fraud News National Post

PROVINCIAL NIOMINEE PROGRAMS TO FACE MORE SCRUTINY

2012-01-26T06:41:00.003-05:00

Provincial Nominee porograms will be tightened by Ottawa amid concerns over fraud, corruption and retention issues.
Ottawa moves to tighten provincial immigration program - The Globe and Mail

Ottawa moves to tighten provincial immigration program

anna mehler paperny

From Thursday's Globe and Mail

Published Wednesday, Jan. 25, 2012 8:16PM EST

Last updated Wednesday, Jan. 25, 2012 8:23PM EST

Immigration Minister Jason Kenney is setting out more stringent standards for the way provinces pick immigrants, even as he lauds the strategy as a success and economic boon.
The Provincial Nominee Program, which allows provinces to select their own quota of immigrants based on local economic needs, has received plaudits for turning Prairie provinces into migrant magnets.
But its record is far spottier out east: Incarnations of the program in Prince Edward Island, Nova Scotia and New Brunswick have been beset by allegations of corruption, scathing auditors-general reports and multimillion-dollar settlements paid to immigrants claiming they’d been bamboozled by misleading claims. Concerns around investor streams of the program spread to Manitoba, where the Auditor-General is conducting her own review pre-emptively.
The program has expanded significantly and is changing the face of immigration in Canada, sending newcomers to regions in need of tradespeople rather than urban hubs where highly skilled immigrants often can’t get a job.
An evaluation of the nominee program, to be released Thursday, indicates Ottawa wants to have a more direct hand in ensuring the initiative works the way it wants it to.
Provinces will need to provide evidence they need the workers they pick and they’ll have to more closely monitor visa offices abroad, “including [for] fraud detection,” according to a summary provided to The Globe by a government source.
The summary also states that nominated immigrants will need to meet minimum language standards before immigrating. It recommends putting a “monitoring and reporting framework” in place to ensure provinces meet “agreed-upon performance indicators.” The suggestion is that failure to do so would have consequences on those provinces’ programs.
Mr. Kenney hinted at this leash-tightening in an interview with The Globe late last year. The program is a success, he said, but “we do have some concerns.”
“We want to make sure the provinces are managing the program with proper due diligence and proper integrity. We need to continue working with the provinces in that respect,” he said, making special reference to immigration consultants in Maritime provinces’ investor streams as a cause for concern.
“They’re approaching people overseas who have no intention of settling in Atlantic Canada,” he said. “That’s the kind of thing that we need to be mindful of and that’s one of the reasons we are not going to continue with the rate of growth in the program over the past few years until we’re able to sit down with the provinces and make sure our concerns are addressed.”

US IMMIGRATION DEBATE AND THE CANDIDATES

2012-01-25T20:00:00.001-05:00

http://online.wsj.com/video/opinion-the-immigration-debate/CE624846-D433-4162-9027-7080D06408FA.html

A very interesting interview on the US immigration debate and the GOP candidates.

IMMIGRATION CORRUPTION TRIAL CONTINUES

2012-01-25T06:45:00.000-05:00

Trail of ‘immigration fixer’ revealed in Ottawa courtroom

By Andrew Seymour, The Ottawa CitizenJanuary 24, 2012

OTTAWA — When Mahmoud Samih Zbib’s wife’s permanent resident application got stalled, he went looking for a fixer.
He seemed to have found one in Issam Dakik, an Ottawa court heard Tuesday.
Dakik had connections, Zbib testified. Dakik told him he could act as an intervener between lawyers and Citizenship and Immigration Canada to get the permanent resident application process — which at that point had taken years for Zbib’s wife — completed in as little as a month.
Prosecutors now allege Dakik’s connection was Citizenship and Immigration Canada operations manager Diane Serre, who they allege took money from Dakik. In exchange, Serre would give preferential treatment to the files Dakik brought her, using her bureaucratic influence to fast-track the process.
Serre, 41, is on trial on 28 charges, including fraud upon the government, bribery and breach of trust by a public official. She has pleaded not guilty. Dakik has already pleaded guilty and been sentenced to prison.
Testifying on the second day of Serre’s trial, Zbib described how he and his wife first met Dakik at a Tim Hortons on Bank Street at Heron Road on Nov. 20, 2004. Dakik told Zbib he’d be driving a Toyota 4 Runner.
Dakik listened to Zbib and his wife explain their situation. Zbib testified he told them he could help, and then asked for $300. Dakik told them the money was going to the lawyer’s office and to cover administrative fees.
Suspicious, Zbib said he asked questions.
“He just said ‘Listen, I solve problems. You just give me the name of your wife, her file, I’ll work on it. Everything is legal’,” said Zbib, 53.
Zbib paid him the money.
Zbib said at their next meeting inside a Lebanese pastry shop two days later, Dakik had official looking Citizenship and Immigration Canada printouts with personal information no one else would know about his wife.
Dakik told them the file was more complicated than he expected because Zbib’s wife was in Canada on an expired visitor’s visa. He’d need $3,000 to begin the process, said Zbib.
Another $3,000 would be paid after his wife, Sanaa Salman Chahine, received her permanent resident status, Zbib testified. The money went to “lawyers,” Dakik told him.
Zbib met Dakik the next day and handed over an envelope packed with $100 bills.
A grainy video, recorded by undercover RCMP officers, was played in court. In it, Zbib can be seen handing over a thick envelope. Zbib said Dakik promised his wife would get a call from Citizenship and Immigration Canada.
The call came the next day. The woman never identifies herself, but Serre’s phones were tapped by police.
In the phone call secretly recorded by police, the woman advises Chahine they are working on her file and should have it resolved within four to six weeks. She also tells Chahine she knows Chahine has no status in Canada.
“We could arrest you, we won’t because you have representations from a lawyer,” said the woman.
Zbib testified he had no lawyer, and was only dealing with Dakik.
Zbib couldn’t believe his wife had received a phone call from Citizenship and Immigration Canada. It had never happened before during his entire time living in Canada.
“They never call you,” Zbib exclaimed in court. “When someone from Immigration calls you, this is something big.”
Zbib never paid Dakik any more money — Dakik was arrested before he could, Zbib said, who learned about the arrest through the newspaper.
Zbib testified it took his wife — who arrived in Canada from Lebanon in 2000 — another five years before she would become a permanent resident.
The trial continues Wednesday.

SANCTIONS AGAINST IRAN: OPERATIONAL BULLETIN RELEASED

2012-01-24T17:44:00.000-05:00

Operational Bulletin 378 - January 20, 2012

Sanctions against Iran

Issue

Iranian nationals, who for the purpose of this Operational Bulletin (OB) are defined as persons holding Iranian citizenship, or persons residing in Iran may face restrictions in transferring funds to Canadian banks, as a result of the imposition on November 21, 2011, of amended sanctions against Iran under the Special Economic Measures Act (SEMA). Indeed these sanctions prohibit persons in Canada and Canadians outside Canada from providing or acquiring “any financial services to, from or for the benefit of, or on the direction or order of, Iran or any person in Iran.”
There is an exemption under the amended sanctions for non-commercial remittance of $40,000 or less, or for payments required under a contract that was entered into prior to November 22, 2011.

Background

In response to the International Atomic Energy Agency (IAEA)’s November 9, 2011 assessment of Iran’s nuclear program, Canada imposed further sanctions under the SEMA. New Regulations amending the Special Economic Measures (Iran) Regulations entered into force on November 21, 2011. The latest sanctions prohibit financial transactions with Iran, expand the list of prohibited goods to include all goods used in the petrochemical, oil and gas industry in Iran, amend the list of prohibited goods to include additional items that could be used in Iran’s nuclear program, and add new individuals and entities to the list of designated persons found in Schedule 1 of the SEMA regulations. The amendments also remove certain entities that no longer present a proliferation concern.
The text of the November 21, 2011, Regulations amending the Special Economic Measures (Iran) Regulations can be found at Regulations Amending the Special Economic Measures (Iran) Regulations.
As a result of the amended sanctions Iranian nationals or persons residing in Iran may face restrictions in transferring funds to Canadian financial institutions if they do not fit within the exemptions to the sanctions found in section 5(d) of the amended Regulations. The restrictions also operate to prohibit persons in Iran from opening a bank account in Canada prior to their immigration to Canada for the purpose of transferring funds, even if the funds themselves would be allowed under the exemptions.

Instructions

Citizenship and Immigration Canada (CIC) offices in Canada and overseas are instructed to continue processing applications for permanent and temporary residence of Iranian nationals and persons residing in Iran, to visa issuance, as per normal office procedure. In cases where applicants need to show that they can or have transferred funds to Canada, such as for federal Investor class applicants who are required to make their $400,000 or $800,000 investment, applicants should be informed that they may face restrictions in transferring funds to a Canadian financial institution and should be referred to the text of the sanctions Regulations. The same information should be provided to all other applicants at visa issuance.
Persons affected by the sanctions on financial transactions, whether they be applicants for a visa or already in Canada, may apply for permits from the Department of Foreign Affairs and International Trade (DFAIT) that authorize specified activities or transactions that are otherwise prohibited under the sanctions. This permit process should be taken into consideration when assigning a deadline for submitting evidence that funds can be transferred to Canada or an investment made, prior to refusing an application from an Iranian national or person in Iran for failure to transfer the required funds or investments.
In-Canada CIC offices and overseas missions may wish to use the following text when communicating with clients who may be affected by the sanctions:

“Effective November 21, 2011, Iranian nationals and persons residing in Iran may face restrictions in transferring funds to, or opening bank accounts with Canadian financial institutions. The text of Regulations amending the Special Economic Measures (Iran) Regulations, can be found at Regulations Amending the Special Economic Measures (Iran) Regulations. Persons affected by the sanctions on financial transactions, whether they are applicants for a visa or already in Canada, may apply for permits from the Department of Foreign Affairs and International Trade (DFAIT) that authorize specified activities or transactions that are otherwise prohibited under the sanctions. Exemptions to the sanctions can be found in section 5(d) of the amended Regulations.
For more information, applicants should contact:
Department of Foreign Affairs and International Trade
Economic Law Section (JLHB)
125 Sussex Drive
Ottawa, Ontario
Canada K1A 0G2
Tel: 613-995-1108
Fax: 613-992-2467

NOVA SCOTIA IMMIGRANTION LAWSUIT FINALLY SETTLED

2012-01-24T08:29:00.001-05:00

The long saga of the Nova Scotia provincial nominee program economic stream law suit is finally over:

Immigrant class action suit is over

By Donalee Moulton

The Lawyers Weekly

Vol. 31, No. 35

(January 27, 2012)

A class action lawsuit that pitted the Nova Scotia government against immigrants who paid to come live and eventually start a small business in the province is over. Both sides have signed off on an agreement approved by the Supreme Court of Nova Scotia that will give roughly 365 eligible individuals up to $63,750 each.

Each party is claiming victory -- for themselves and their opponent -- in a suit that brings finality to a well-intended but ill-fated program and also established a new way to manage class action suits.

"The key benefit to the province is that the settlement agreement captures all the claims that could be made by class members with respect to fees paid to the Nova Scotia Nominee Program," said Greg McMullen, an associate with Branch MacMaster LLP in Vancouver, which represented the plaintiff. "This should bring the last chapter of the troubled program to a close and let everyone move on."

The province agrees that finality is a positive outcome. It enables class members to submit a claim and gives the province some financial peace of mind, said Tom Peck, spokesman for Nova Scotia's Office of Immigration in Halifax. "All potential class members will be bound by the settlement agreement unless they opt out of the class action. Once the opt-out period has passed, the province will not be subject to any further lawsuits outside of the settlement agreement unless brought by a nominee who opted out of the class action."

Nova Scotia's nominee program is the first step in an application process for a permanent resident visa to Canada. It is used to recruit and select immigrants who intend to settle in the province. The class action involves immigrants who paid to come to Nova Scotia under a defunct arm of the program known as the "economic stream." The initiative, which ran from 2003 to 2006, was intended to attract entrepreneurs and help them establish a business. In return, the immigrants paid an upfront sum (upwards of $100,000) to live and work in the province.

The program did not pan out as planned. Instead, the approach proved controversial -- having immigrants pay to come to the province was hotly debated -- and concerns were raised about the operation of the program.

A special report on the economic stream prepared by the Office of the Auditor General in 2008 found "significant deficiencies" in the program.

One area of concern was the lack of mentorship programs, which was considered a key element of the economic stream and a component paid for by the immigrants. "We concluded the objective to provide nominees with a mentorship position was not met. Only 210 of the 532 economic nominees landed in Canada participated in mentorships," provincial Auditor General Jacques Lapointe stated in his 33-page report.

The final step in the demise of the economic stream is the class action suit. "The class is made of everyone who paid fees to the Nova Scotia Nominee Program, landed in Canada, and became a permanent resident, and hasn't already received a refund," McMullen said.

"In the original claim," he said, "the proposed class was limited to people who had not signed a 'mentorship contract,' meaning they did not have the work experience that was promised under the Nova Scotia Nominee Program. However, the settlement agreement incorporated two sub-classes: one for class members who did not sign a mentorship contract and one for class members who did."

Members of the non-mentorship class will receive $75,000 while members of the mentorship class will receive $75,000 less any amounts they were previously paid as salary or other benefits during their mentorship, Peck said. From this payment for both classes will be deducted the 15 per cent contingency fee for class counsel.

Reaching eligible individuals has been a focus, McMullen said. "No matter how big a settlement benefit is, class members can't claim if they don't find out about the settlement."

Ensuring a wide distribution of material to potential class members was a focus -- and broke new ground in class action lawsuits in Canada.

"The notice program includes a 'skip search' provision so that if any mail or email is returned to sender or the province becomes aware that someone has not received notice, the province will retain a skip searcher to try to update the address for that class member," said McMullen said. "To the best of our knowledge, this is the first settlement agreement in Canada to include a skip search provision."

Streamlining the claim form was also critical, he said. "[N]o matter how good the benefits, if the claim form is too complicated, the take-up rate will drop. We knew this would be especially true for a class made up of people who are new to Canada, many of whom are not familiar with the Canadian legal system, or face significant language barriers.

"For non-mentorship class members, the claim form is one page and only asks for the most basic of information and a photocopy of the details page of the class member's current passport," he noted. "For mentorship class members, the form is just over one page and requires some supporting documentation to show how much money was earned during the mentorship."

While Nova Scotia's nominee program still exists to attract immigrants to the province, the economic stream no longer exists. "This stream was closed to new applicants on July 1, 2006," said Peck. "The province will not be reinstating it."

RWANDAN WAR CRIMES SUSPECT FINALLY DEPORTED

2012-01-24T06:52:00.001-05:00

Finally, war chimes suspect Leon Mugesera has been deported. The Supreme Court of Canada ruling of seven years ago clearing the way for his deportation has been finally respected in law and in spirit. Canada should not be a heaven for war crimes suspects. This case has taken over 17 years. Incredible.

Timeline: Rwandan genocide suspect Mugesera's road to deportation

The Gazette

January 23, 2012

Léon Mugesera lost what most likely is his last attempt to avoid deportation when Quebec Superior Court Justice Michel Delorme ruled Monday the case for a stay belongs in the Federal Court of Canada.

Photograph by: Dave Sidaway, Gazette files

The long legal odessey of Léon Mugesera made its way through the Canadian courts for the last seventeen years, going from the Immigration and Refugee Board to the Supreme Court of Canada and back again.

1995 - Citizenship and Immigration began deportation proceedings against Mugesera.

July 1996 - Immigration and Refugee Board adjudicator Pierre Turmel determined that a speech he gave in 1992 constituted “an incitement to violence and ethnic hatred” and ordered Mugesera deported. He appealed.

November 1998 - An Immigration and Refugee Board appeal panel upheld Turmel’s decision. He appealed.

April 2001 - The Federal Court ruled Mugesera can remain in Canada with his wife and five children. Ottawa appealed.

September 2003 - The Federal Court of Appeal ruled Mugesera may have used colourful and even brutal language, but was not responsible for genocide. Federal officials appealed.

June 29, 2005 - The Supreme Court of Canada issued a unanimous 8-0 ruling declaring Mugesera inadmissible to Canada because his speech helped incite the genocide. Mugesera for a Pre-Removal Risk Assessment arguing he could face torture if repatriated. That federal review continued for nearly seven years.

December 2011 - Mugesera received an 80-page decision from the Ministry of Citizenship and Immigration and his deportation was set for Jan. 12.

Jan. 9, 2012 – Lawyers for Mugesera ask Federal Court to halt the expulsion because he could face torture if returned to Rwanda.

Jan. 11, 2012 – Federal Court Justice Michael M.J. Shore cleared the way for Mugesera’s deportation. The United Nations Committee Against Torture intervened, asking for a six-month reprieve to study the likelihood of Mugesera being tortured. Meanwhile Mugesera was hospitalized in Quebec City.

Jan. 12, 2012 – Quebec Superior Court Justice William Fraiberg granted Mugeseraa temporary safeguard order until a hearing for a permanent reprieve on Jan. 20.

Jan. 14, 2012 – Mugesera was released from hospital in Quebec City, arrested by the Canada Border Services Agency and confined to an immigration detention centre in Laval.

Jan. 16, 2012 – IRB Judge Dianne Tordorf maintained Mugesera’s detention, fearing he had taken desperate measures to avoid deportation and might again.

Jan. 20, 2012 – Lawyers for Mugesera and the federal government squared off before Quebec Superior Court Justice Michel Delorme.

Jan. 23, 2012 – Delorme ruled Quebec Superior Court has no jurisdiction over Mugesera’s fate, suggesting it would encourage “tribunal shopping.” His lawyers returned to Federal Court while the IRB simultaneously held another detention review. The Federal Court dismissed Mugesera’s final motion. Mugesera was taken to the airport and deported.

TRIAL IN ALLEGED IMMIGRATION BRIBERY SCANDAL CONTINUES

2012-01-24T06:44:00.001-05:00

This is a story that has been going on for some time, but it is interesting that it is only now coming to trial.

Immigration Canada manager pleads not guilty in bribery scheme

By Andrew SeymourJanuary 23, 2012

OTTAWA — Secretly recorded telephone calls and undercover police surveillance will paint a portrait of a senior Citizenship and Immigration Canada manager taking cash in exchange for preferential treatment on permanent residency applications, a prosecutor said Monday on the first day of a trial into an alleged bribes-for-status scheme.
Assistant Crown attorney Mike Boyce said Diane Serre teamed up with Issam Dakik to take thousands of dollars from mostly Arab immigrants in exchange for fast-tracking their applications. Dakik would meet with the applicants and collect the money before contacting Serre who would use her influence as a manager and supervisor in Citizenship and Immigration Canada’s Catherine Street office, said Boyce.
Serre, 41, pleaded not guilty to 28 charges Monday, including multiple allegations of fraud against the government and breach of trust of a public official. She is also charged with one count of bribery.
Dakik portrayed himself as someone who had inside information, Boyce added.
Dakik, who has pleaded guilty to his role in the scheme, along with credit card fraud, was sentenced to two years and nine months in prison in 2006. At the time, Dakik admitted he paid Serre a portion of the proceeds of the scheme.
The scheme allegedly began in January 2003 and continued until December 2004, when Serre and Dakik were arrested by RCMP in an operation dubbed “Project Argon.”
Nine applicants made the illegal cash payments, which the RCMP said at the time of Serre’s arrest ranged from between $4,000 and $25,000.
In an opening address, Boyce outlined Crown evidence that will be presented over the six-week trial, including wiretap evidence that the prosecutor said proved that Serre was Dakik’s “insider” at Citizenship and Immigration Canada.
Police surveillance observed visits to Dakik’s home by Serre that corresponded with wiretapped telephone calls to some of the applicants — calls where Dakik would often either put the applicants on hold or could be heard consulting with someone else in the room.
Boyce alleged when an undercover police agent approached Dakik, he was told the first $300 he paid would go to “the lawyer.” Bills with the same serial numbers were recovered two weeks later from Serre’s bedroom, said the prosecution.
Among the allegations is that Serre also handed over sensitive Citizenship and Immigration Canada documents to Dakik and made phone calls to outside government agencies, including CSIS, to see if some of the steps of the application process could be expedited.
Not all of Serre’s actions would be improper when viewed in isolation, said Boyce, but when viewed in the context of Serre’s relationship with Dakik, they equated to a breach of trust.
“She accepted or agreed to accept a benefit for her assistance in processing these claims,” Boyce told Ontario Superior Court Justice Catherine Aitken.
Boyce said the Crown intends to prove Serre not only committed a breach of trust by taking money, but by the very fact she agreed to give preferential treatment to the claimants at all.
“Just through acts of giving preferential treatment to those files would be a breach of trust by Ms. Serre,” he said.
The nine applicants who paid Dakik are expected to be called as witnesses this week and next. Their evidence will include tape-recorded conversations and agreements they made with Dakik. Dakik is expected to take the witness stand in about two weeks, where prosecutors expect to confront him with the wiretaps and other surveillance.
The Crown will also introduce evidence that will show when Serre or others searched for the applicants’ electronic files. Occasionally Serre would search the files within a day of discussing them with Dakik, Boyce alleged.
The prosecution spent much of the first day introducing many of the exhibits seized from searches of Citizenship and Immigration Canada office and Serre and Dakik’s homes.
The trial continues Tuesday.

ESTABLISHMENT IN CANADA MERITS CONSIDERATION IN RESIDENCY OBLIGATION APPEAL

2012-01-23T08:51:00.000-05:00

Interesting and unusual case: applicant became well established in her own right, seems to have been misinformed about the appropriate way to proceed after she wished to return to Canada and wrongly assumed that her residency was no longer valid. Had she received good and timely legal advice, she would have discovered that she was still a resident of Canada as there was no determination by immigration authorities that she was no longer a resident. Note the tribunal's comments at the end of the decision, invoking the interests of Canada and praising the applicant. The facts of this case are very unusual. Perhaps teh whole matter could have been avoided had she known that she wa sitll a resident of Canada.

Mock v. Canada (Minister of Citizenship and Immigration)
Between

Julia Simone Mock, Appellant(s), and

The Minister of Citizenship and Immigration, Respondent

[2011] I.A.D.D. No. 1252

[2011] D.S.A.I. no 1252

IAD File No. TB0-06968

Client ID No. 3475-0279
Immigration and Refugee Board of Canada

Immigration Appeal Division

Toronto, Ontario
Panel: William T. Short
Heard: June 22, 2011.

Oral decision: June 22, 2011.

Released: July 13, 2011.

(32 paras.)
________________________________________
• Reasons and Decision
• RESIDENCY OBLIGATION
• Reasons for Decision

Introduction

1 These are the written reasons for the oral decision with regard to an appeal by Julia Simone MOCK (the appellant) from the decision of a visa officer at the Canadian Embassy in Berlin that she has failed to comply with the residency obligations for permanent residents set out in section 28 of the Immigration and Refugee Protection Act (IRPA).

2 The parts of section 28 of IRPA which are pertinent to this appeal read as follows:

Residency obligation

• 28.

(1) A permanent resident must comply with a residency obligation with respect to every five-year period.

Application

• (2) The following provisions govern the residency obligation under subsection (1):

• (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

(i) physically present in Canada

3 Non compliance with the minimum residency requirements of section 28 renders a permanent resident inadmissible under the provisions of section 41(b) of IRPA, which reads as follows;

Non-compliance with Act

• 41. A person is inadmissible for failing to comply with this Act

• (b) in the case of a permanent resident, through failing to comply with subsection 27(2) or section 28.

Issue

4 The appellant brings this appeal pursuant to subsection 63(4) of IRPA. She does not challenge the legal validity of the visa officer's decision and thus bears the onus of establishing that, taking into account the best interests of a child or children directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

Decision

5 The appellant, who was not represented by counsel, testified in person at the hearing and did not require the use of an interpreter as she speaks fluent English. I have considered her testimony, the Record of Appeal, other materials filed, as well as submissions made on behalf of the appellant, and the written submissions made on behalf of the Minister of Citizenship and Immigration (the Minister). Counsel for the Minister did not personally attend the hearing, but asked in written submissions that the appeal be dismissed.

6 I find that the refusal is valid in law. During the pertinent five-year period considered by the visa officer, that being March 19, 2005 to March 18, 2010, the appellant was physically present in Canada for 365 days only. I have, however, come to the conclusion that, taking into account the best interests of a child directly affected by the decision, (there are none in this case) sufficient humanitarian and compassionate considerations do exist to warrant the granting of special relief in light of all the circumstances of the case. The appeal is accordingly allowed for the reasons which follow.

Background

7 The appellant is a single, 27-year-old woman. She is a German citizen and was granted permanent resident (PR) status along with her parents in May 1998.

8 The family only stayed in Canada for about one year and three months as the appellant's parents had to return to Germany to look after their aged parents who had become quite ill. The appellant, at the age of 15, was an un-emancipated child at the time and had no option but to return to Germany with her parents.

9 The appellant said that she was determined to come back to Canada one day and chose to obtain her higher education at an institution where the courses are taught in English. The appellant obtained a Master of Business Administration degree and sought out career opportunities at a company that had operations in Canada.

10 The appellant was successful in obtaining an internship with a German company which manufactures food handling equipment and which has an office in Mississauga, Ontario.

11 The appellant returned to Canada in April of 2009 and applied for a work and travel visa as she had assumed that her PR status had expired. At the end of her internship the appellant was offered a permanent job with the company's operation in Mississauga, Ontario. She was forced to apply for a Young Professionals Work permit, before discovering that she might still be able to revive her PR status.

12 The appellant filed an Application for a Travel Document with the Canadian Embassy in Berlin on March 18, 2010,1 but was found to have spent only 365 days in Canada in the relevant five-year period and the application was refused. The appellant appealed.

Analysis and Finding of Fact

13 The appellant did not dispute that she has not complied with the residency requirements of IRPA and I accept that the appellant has only been physically present in Canada 365 days out of the requisite minimum of 730 during the requisite five-year period.2 I accordingly find that the visa officer's decision is valid in law.

14 I turn now to the issue of special relief. This aspect of the appeal is based on section 67(1)(c) of IRPA, which reads as follows:

Appeal allowed

• 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time the appeal is disposed of,

• (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case

15 In considering this question, I have been guided by the reasoning in Bufete Arce3 and Kok.4 Those cases suggest that, in addition to the best interests of a child directly affected, the following factors are particularly relevant to residency obligation appeals:

• * the extent of the non-compliance with the residency obligation;

• * the reason(s) for the departure and stay abroad;

• * the degree of establishment in Canada, initially and at the time of hearing;

• * family ties in Canada;

• * whether attempts to return to Canada were made at the first opportunity;

• * hardship and dislocation to family members in Canada if the appellant is removed from or is refused admission to Canada;

• * hardship to the appellant if removed from or refused admission to Canada; and

• * whether there are unique or special circumstances that merit special relief and which meet the standard laid down in Chirwa5 for discretionary relief.

16 These factors are not exhaustive and the weight given to each may vary depending on the circumstances of each individual case. A review of these factors as applied to the present case is as follows:

Extent of non-compliance

17 The appellant has spent only one-half of the requisite minimum of 730 days in the five-year period under review, that being March 19, 2005 to March 18, 2010. The extent of the non-compliance is significant.

Reasons for departure and for staying abroad

18 The appellant left with her parents to return to Germany in 1999. She was 15 years of age at the time.

Degree of establishment in Canada

19 The appellant has a full time job in Mississauga, Ontario as a junior manager. This is a permanent position. She files income tax returns and has an annual income in the low $40,000s. Although she presently rents a town house with some friends, the appellant testified that she will soon be moving to her own place. She has a bank account with a balance of approximately $13,000. She has a drivers licence and owns a car and also has a visa credit card.

20 The appellant, as noted earlier, speaks fluent unaccented English.

21 In the circumstances, I am satisfied that the appellant is quite well established in Canada.

Family ties in Canada

22 This is, to my mind, the most problematic part. The appellant has no family in Canada.

Hardship and dislocation to family in Canada

23 Inasmuch as the appellant has no family in Canada, there can be no hardship to a family here if she is forced to leave.

Hardship to the appellant

24 The appellant has been living and working in Canada for a little over two years. She has a high degree of establishment here and it would, in my view, be a hardship for her if she were forced to leave, the extent of such hardship would, however, be difficult to quantify.

• Unique or special circumstances that merit special relief

25 In this instance the appellant has testified that she always wanted to return to Canada, which is a refrain one hears with some frequency in theses type of cases. What makes this case different is that the appellant has shown that she actually did something about it. She specifically improved her English and went to the extent of obtaining her higher education in English language courses. She then sought out German companies doing business in Canada so that she could obtain an intern position here.

26 I suppose that it can be argued that the appellant could have come back to Canada as soon as she was an adult, which would have been about 2001. I am prepared to excuse that because being legally able to do something and financially able to do something is often quite different. I am satisfied that the appellant came back to Canada as soon as she understood herself to be able to do so.

• Best interests of children directly affected by the decision

27 There are no children, who would be directly affected by this decision.

Conclusion

28 In weighing all of the above factors I have determined that the appellant has indeed met the burden of establishing that there exist sufficient humanitarian and compassionate considerations to warrant special relief.

29 Although the appellant has no family here and had been out of the country a very long time, I am swayed by the fact that the appellant has really established herself in Canada. She has a promising career here and has gone to considerable efforts to become a contributing member of Canadian society.

30 I do not wish to leave this matter without pointing out the irony that if the appellant had waited another year to apply for a travel document then in that case she would have been in compliance with the minimum residency requirements of IRPA because she would have at that point spent at least 730 days in Canada in the preceding five years. As a matter of fact, at this point, with the exception of a brief trip to Germany, the appellant has been residing and working and paying tax in Canada continuously since April of 2009. I do not see what point would be served by sending her out of Canada at this time. Nor do I see the point of forcing her to re-apply for immigration.

31 Moreover it is my strong view that in exercising my discretion I may also take into account considerations that are in the best interests of Canada. I am of the opinion that it is certainly in Canada's best interest that people such as this well educated and enterprising young woman remain in Canada to contribute to the growth and betterment of this country.

32 The appeal is accordingly allowed.

• NOTICE OF DECISION

The appeal is allowed. The decision of the officer made outside of Canada on the appellant's residency obligation is set aside. The Immigration Appeal Division finds that the appellant has not lost her permanent resident status.

William T. Short

July 13, 2011

CONVICTED CRIMINAL AND DRUG ADDICT SOUGHT COURT INTERVENTION UNSUCCESSFULLY

2012-01-21T09:20:00.002-05:00

Note the case below. It is difficult to understand why a person who was convicted outside of Canada and has remained here illegally only to commit a further crime, has to be allowed to stay, to saddle society with her drug addiction, impose further costs, and perhaps commit more crimes. There has to be something inherently wrong with that picture. Further clarification is required as to who can apply for "humanitarian and compassionate" grounds consideration. Those words should be highly meaningful and should not be synonymous for "naive suckers". Of course, politicians will not wade into that arena any time soon. The court noted correctly the overarching duty to protect due process at the end of the judgment.

Hill v. Canada (Minister of Public Safety and Emergency Preparedness)

Between Jennifer Lynn Hill, Applicant, and
The Minister of Public Safety and Emergency Preparedness,
Respondent

[2012] F.C.J. No. 21

2012 FC 24

Docket IMM-56-12

Federal Court

Shore J.

Heard: January 6, 2012, via teleconference (Ottawa-Toronto).
Judgment: January 6, 2012.

(19 paras.)

REASONS FOR JUDGMENT AND JUDGMENT

SHORE J.:--

· I. Introduction

1 The Applicant is required to leave Canada on Monday, January 9, 2012, through the Detroit-Windsor border between Canada and the United States. Through counsel, she requested a deferral of removal on December 8, 2011.

· II. Background

2 The Applicant, Ms. Jennifer Lynn Hill, is a citizen of the United States. She attempted to enter Canada a number of times between August 1997 and April 1998; however, she was refused entry to Canada after being reported as inadmissible.

3 The Applicant had been charged in New York for intent to commit fraud and a warrant had been issued for her arrest in that district after she failed to appear for a proceeding relating to that matter.

4 On April 2, 2002, the Applicant was reported as inadmissible for entering Canada for the purposes of immigration and failing to hold an immigrant visa as well as engaging in continuing employment and failing to obtain a valid employment authorization. The Applicant had provided a false name to officers of the Toronto Police Service as well as the Canada Border Services Agency [CBSA] officers when arrested.

5 In December 2002, the Applicant was given an Allowed to Leave pursuant to paragraph 4(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227, but was given a Temporary Resident Permit [TRP] until January 2003 to attend Court in Toronto.

6 In May 2003, the Applicant was reported as inadmissible pursuant to paragraph 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], as she had been convicted in March 2003 of theft under $5000.

7 The Applicant filed a Pre-Removal Risk Assessment [PRRA] in June 2003. A negative PRRA decision was rendered in September of that year and she was notified of the decision three weeks later.

8 In October 2003, the Applicant submitted a Humanitarian and Compassionate [H&C] application to the Case Processing Centre [CPC] in Vegreville, Alberta.

9 Between October 2003 and July 2004, the Applicant's removal from Canada was deferred a number of times in order that she could attend Criminal Court and receive a decision on her H&C application.

10 In August 2005, the Applicant's H&C application was refused due to criminality.

11 After receiving a negative H&C application, the Applicant's counsel requested a Temporary Resident Permit [TRP] until she became eligible to apply for a pardon. The Applicant was issued three TRPs between 2006 and 2010.

12 The Applicant attended an interview at the Greater Toronto Enforcement Centre [GTEC] on December 1, 2011 and was advised that she was out of status and that her removal would be scheduled.

13 On December 15, 2011, the Applicant attended another removal interview at GTEC during which her removal was scheduled for January 9, 2012.

· III. Analysis

14 The Court is in agreement with the position of the Respondent as it recognizes, that in this matter, a review of the enforcement officer's Notes to File indicates that he considered all of the relevant facts that were before him. The officer addressed the issues raised by the Applicant with respect to her daughter and, after noting that the Applicant's daughter was not under a removal order, he discussed the availability of special education programs in Michigan and the assessment process for ensuring that adequate services are provided to each student who needs them. The enforcement officer also considered and commented in detail about the availability of aid provided by Children's Protective Services in Michigan.

15 The enforcement officer then conducted an analysis of the Applicant's drug addiction and noted that there are drug rehabilitation programs available throughout the state of Michigan.

16 The Notes to File prepared by the enforcement officer are thorough, clear and he has provided reasonable and detailed explanations for the conclusions he has made. The Applicant is simply disagreeing with the enforcement officer's decision which does not constitute a serious issue in this case.

17 The Applicant has not fulfilled any of the criteria of the tripartite conjunctive Toth v Canada (Minister of Employment and Immigration) (1988), 86 NR 302 (FCA) test.

18 The Applicant has been in Canada since 2002. Contrary to the Applicant's assertion, the documents before this Court reveal that she was aware of her eligibility for pardon and the consequences of failing to apply for an extension of her Temporary Resident Permit [TRP]. Since receiving a negative decision on her PRRA application in October 2003, the Applicant has also been aware that she could be removed from Canada; however, she has failed to make arrangements for this possibility. The public interest in maintaining a process clearly specified by statute outweighs the inconveniences and the difficulties to the Applicant as a result of her removal from Canada.

· IV. Conclusion

19 For all of the above reasons, the Applicant's motion for a stay of the removal order is denied.

JUDGMENT

THIS COURT ORDERS that the Applicant's motion for a stay of the removal order be denied.

SHORE J.

MORE "MOST WANTED" CRIMINALS ARRESTED, CBSA CLAIMS SUCCESS

2012-01-21T08:22:00.001-05:00

CBSA "Most wanted" list appears to be a continuing success: three more watned criminals have been captured this week:

Three Apprehensions and One Removal From the CBSA "Wanted" List - MarketWatch

MORE CHARGES LAID IN CITIZENSHIP INVESTIGATION

2012-01-20T06:19:00.000-05:00

The ever-expanding citizenship fraud investigation has resulted in more charges, more individuals involved. See CBC story below.

More charges laid in immigration fraud - Nova Scotia - CBC News

TAIWANESE INADMISSIBLE DUE TO CRIMINAL NEGLIGENCE ICIDENT

2012-01-14T09:55:00.000-05:00

Very interesting case, with an excellent summary by the court of the test of equivalency of criminal offences in the immigration context.

Lu v. Canada (Minister of Citizenship and Immigration)

Between Lu, Hsueh-Wan, Applicant, and
Minister of Citizenship and Immigration, Respondent

[2011] F.C.J. No. 1797

[2011] A.C.F. no 1797

2011 FC 1476

Docket IMM-246-11

Federal Court
Montréal, Québec

Pinard J.

Heard: October 18, 2011.
Judgment: December 21, 2011.

(31 paras)

REASONS FOR JUDGMENT AND JUDGMENT

1 PINARD J.:-- This is an application by Hsueh-Wan Lu (the applicant) under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a decision by Jennifer Wu, visa officer at the Canadian Trade Office in Taipei (the officer). The officer refused the applicant's application for a permanent resident visa based on paragraph 36(1)(b) of the Act, characterizing the applicant as inadmissible on grounds of serious criminality.

2 The applicant is the president and owner of Lien Chan Transport Affiliated Enterprise (the business) located in Taiwan. In March 2010, Quebec selected him as an "Investor" immigrant and sent him a selection certificate. On June 2, 2010, he applied for a permanent resident visa. With his application, he attached a summary criminal judgment from the district of Taoyuan court in Taiwan dated July 30, 2009 (the judgment). The judgment found him guilty of the following offence: "in the performance of his occupation negligently killed another by neglecting the degree of care required by such occupation". This offence is related to the death of one of his employees in 2008 as a result of a workplace accident during a delivery for his business. As the person responsible for the business under the Labour Safety and Health Law in the Republic of China, the applicant acknowledged his negligence and pleaded guilty. A summary judgment was issued, his sentence was suspended and he was sentenced to only a fine.

3 Upon reviewing his application, the visa officer at the Canadian Trade Office in Taipei rejected it because of the criminal judgment issued against him in Taiwan; the officer considered the applicant inadmissible under paragraph 36(1)(b) of the Act on grounds of serious criminality.

4 In his decision dated November 16, 2010, the officer found that the offence committed by the applicant in Taiwan would, if committed in Canada, constitute criminal negligence under sections 217.1, 219 and 220 of the Criminal Code, R.S.C. 1985, c. C-46 (the Criminal Code), an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years (paragraph 36(1)(b) of the Act). Consequently, the officer rejected the visa application pursuant to subsection 11(1) of the Act.

5 The entries in the Computer Assisted Immigration Programming System (CAIPS) that are part of the officer's decision indicate that the officer compared the applicant's conviction in China to the equivalent offence in Canada.

6 The officer found that, since the applicant had not adopted the safety measures required to prevent the March 2008 accident, he had breached his duty, thus satisfying the elements of the offence of criminal negligence under section 219 of the Criminal Code.

7 The relevant sections of the Act are as follows:

· Application before entering Canada

· 11.

(1) A 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 may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.

· Serious criminality

· 36.

(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

· (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

· (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or

· (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

* * *

· Visa et documents

· 11.

(1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi.

· Grande criminalité

· 36.

(1) Emportent interdiction de territoire pour grande criminalité les faits suivants:

· a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé;

· b) être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans;

· c) commettre, à l'extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans.

8 The following sections of the Republic of China's Labour Safety and Health Law are also relevant:

Labour Safety and Health Law

Necessary safety & health equipment & facilities

· 5(1)(4) It is the responsibility of the employer to provide the necessary safety and health installations in conformity with established standards for the following purposes:

· IV.

To prevent the risk of injury encountered in the course of quarrying, excavating, loading and unloading, transportation, stockpiling, and logging.

· 28(2)(1) When a workplace of an enterprise experiences one of the following types of occupational accidents, it is the responsibility of the employer to report the accident within 24 hours to the appropriate inspection agency:

· 1.

An accident involving death.

· 31(1) Anyone found to be in violation of Article 5, Paragraph 1 or Article 8, Paragraph 1, and whose actions led to an occupational accident as described in Article 28, Paragraph 2, Subparagraph 1 shall be subject to no more than three years in prison or detention, or fines not in excess of NT$150,000, or both.

· When a legal entity violates any of the above-mentioned provision, in addition to punishing the person in charge, the legal entity will be penalized with the fines listed above.

9 In addition, the following section of the Criminal Code of the Republic of China is also pertinent:

· 276(2) A person who in the performance of his occupation commits an offence specified in the preceding paragraph by neglecting the degree of care required by such occupation shall be punished with imprisonment for not more than five years, or detention; in addition thereto, a fine of not more than 3,000 Silver Dollars may be imposed.

10 The following sections of the Criminal Code are germane to assessing the equivalence of the offences committed in Taiwan:

· Duty of persons directing work

· 217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

· Criminal negligence

· 219. (1) Every one is criminally negligent who

· (a) in doing anything, or

· (b) in omitting to do anything that it is his duty to do,

· shows wanton or reckless disregard for the lives or safety of other persons.

· Definition of "duty"

· (2)

For the purposes of this section, "duty" means a duty imposed by law.

· Causing death by criminal negligence

· 220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

· (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

· (b) in any other case, to imprisonment for life.

* * *

· Obligation de la personne qui supervise un travail

· 217.1 Il incombe à quiconque dirige l'accomplissement d'un travail ou l'exécution d'une tâche ou est habilité à le faire de prendre les mesures voulues pour éviter qu'il n'en résulte de blessure corporelle pour autrui.

· Négligence criminelle

· 219. (1) Est coupable de négligence criminelle quiconque:

· a)

soit en faisant quelque chose;

· b) soit en omettant de faire quelque chose qu'il est de son devoir d'accomplir,

· montre une insouciance déréglée ou téméraire à l'égard de la vie ou de la sécurité d'autrui.

· Définition de "devoir"

· (2)

Pour l'application du présent article, "devoir" désigne une obligation imposée par la loi.

· Le fait de causer la mort par négligence criminelle

· 220. Quiconque, par négligence criminelle, cause la mort d'une autre personne est coupable d'un acte criminel passible:

· a) s'il y a usage d'une arme à feu lors de la perpétration de l'infraction, de l'emprisonnement à perpétuité, la peine minimale étant de quatre ans;

· b) dans les autres cas, de l'emprisonnement à perpétuité.

11 Following the hearing before me, the applicant's new counsel essentially raised the following issue:

· [TRANSLATION]

· Did the officer err by finding that the offences committed by the applicant in Taiwan are equivalent to the offence of criminal negligence in Canadian criminal law?

12 The standard of review applicable to an officer's determination of equivalency is reasonableness (Abid v. Minister of Citizenship and Immigration, 2011 FC 164 at paragraph 11 [Abid]; Sayer v. Minister of Citizenship and Immigration, 2011 FC 144 at paragraph 4 [Sayer]). The determination of equivalency is a question of mixed fact and law that attracts deference (Abid at paragraph 11 and Sayer at paragraph 5). Equivalency is a mixed question because, first, the applicant must prove the foreign law, which becomes a question of fact (Lakhani v. Minister of Citizenship and Immigration, 2007 FC 674 at paragraph 22; Sayer at paragraph 4). Once the foreign law is established, an officer must assess the relevant facts of the case according to the terms of the foreign law in comparison with the applicable Canadian federal law (Sayer at paragraph 5).

13 This Court must therefore determine whether the officer's finding is justified, transparent and intelligible and "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at paragraph 47 [Dunsmuir]).

14 With respect to the issue raised, the respondent correctly summarizes the equivalency analysis that an officer must conduct in assessing whether the offence for which the applicant was convicted in Taiwan would, if committed in Canada, "constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years" (paragraph 36(1)(b) of the Act). As summarized in Hill v. Minister of Employment and Immigration (1987), 73 N.R. 315 at page 320 (F.C.A.), equivalency between offences can be determined in three ways:

· ... first, by a comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining therefrom the essential ingredients of the respective offences. Two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not. Third, by a combination of one and two.

15 Li v. Canada (Minister of Citizenship and Immigration) (C.A.), [1997] 1 F.C. 235, [Li] clarifies this determination of equivalency by stating that an officer must look at the similarity of definition of the two offences, i.e., "if it involves similar criteria for establishing that an offence has occurred, whether those criteria are manifested in 'elements' (in the narrow sense) or 'defences' in the two sets of laws" (at paragraph 18). In Justice Strayer's view, at paragraph 19,

· [a] comparison of the "essential elements" of the respective offences requires a comparison of the definitions of those offences including defences particular to those offences or those classes of offences.

16 It is not necessary to compare the criminal procedure in the two systems: the offences must be compared, not the possible convictions (Li at paragraph 18).

17 In this case, I am of the view that the officer did not err in his determination of equivalency: the officer reviewed the foreign and Canadian provisions and focused on the essential elements of the offences, applying them to the underlying facts of the Taiwanese offence. In applying the appropriate test, the officer noted the following facts:

· *

The applicant was the person responsible for the business and was the employer as defined in the Republic of China's Labour Safety and Health Law;

· *

In March 2008, one of his employees died in the performance of his duties: a metal box slipped off a trailer and crushed him while he and his co-workers were unloading equipment;

· *

The applicant failed to adopt the safety standards required under the Labour Safety and Health Law;

· *

Since he was the employer and the person responsible, the applicant was guilty of two criminal offences under sections 31(1), 5(1)(4) and 28(2)(1) of the Republic of China's Labour Safety and Health Law as well as section 276(2) of the Criminal Code of the Republic of China;

· *

If committed in Canada, these offences would be equivalent to the duty of a person who supervises work and criminal negligence under sections 217.1, 219 and 220 of the Canadian Criminal Code;

· *

These offences are punishable by a maximum term of imprisonment for life.

18 The table below identifies the essential elements of each of the offences (emphasis added):

LABOUR SAFETY AND HEALTH LAW

NECESSARY SAFETY & HEALTH EQUIPMENT & FACILITIES

· 5(1)(4) It is the responsibility of the employer to provide the necessary safety and health installations in conformity with established standards for the following purposes:

· IV.

To prevent the risk of injury encountered in the course of quarrying, excavating, loading and unloading, transportation, stockpiling, and logging.

· When a legal entity violates any of the above-mentioned provision, in addition to punishing the person in charge, the legal entity will be penalized with the fines listed above.

· Criminal Code of the Republic of China

* * *

CRIMINAL CODE OF CANADA

DUTY OF PERSONS UNDERTAKING ACTS

· CRIMINAL NEGLIGENCE

· 219. (1) Every one is criminally negligent who

· (a) in doing anything, or

· (b) in omitting to do anything that it is his duty to do,

· shows wanton or reckless disregard for the lives or safety of other persons.

· Definition of "duty"

· (2)

For the purposes of this section, "duty" means a duty imposed by law.

· Causing death by criminal negligence

· 220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

· (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

· (b) in any other case, to imprisonment for life.

19 Considering the elements of the offences identified above and the summary judgment stating that the applicant was guilty of "in the performance of his occupation negligently killed another by neglecting the degree of care required by such occupation", it was not unreasonable for the officer to find that the applicant would have showed "wanton or reckless disregard for the lives or safety of other persons" if the offence had been committed in Canada (subsection 219(1) of the Criminal Code).

20 Contrary to the applicant's arguments, wanton or reckless disregard does not require an element of intention (R. v. Scrocca, 2010 QCCQ 8218 at paragraph 62 [Scrocca]). Such disregard is established if the applicant acted in a manner that represents a marked departure from the norm, from the conduct of a reasonably prudent person in the circumstances (R. v. Morrisey, [2000] 2 S.C.R. 90 at paragraph 19; R. v. Anderson, [1990] 1 S.C.R. 265 at paragraph 11). Thus, [TRANSLATION] "the [applicant's] intentions, what he knew or did not know, are not taken into consideration. In a criminal negligence case, the criminal fault lies in 'failure to direct the mind to a risk which the reasonable person would have appreciated'" (Scrocca at paragraph 65).

21 In this case, there is no doubt that the officer believed that the applicant's conduct in failing to adopt safety standards represented a marked departure from the reasonable diligence standard set out in the Republic of China's Labour Safety and Health Law: the applicant was guilty of "in the performance of his occupation negligently killed another by neglecting the degree of care required by such occupation".

22 Accordingly, it was reasonable for the officer to consider criminal negligence in Canadian law, as defined in sections 219 and 220 of the Criminal Code, as equivalent to the offence that the applicant was convicted of in Taiwan. This determination of equivalency was justified, transparent and intelligible and "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir at paragraph 47).

23 Moreover, section 217.1 of the Criminal Code is an amendment to the Criminal Code under An Act to amend the Criminal Code (criminal liability of organizations), S.C. 2003, c. 21, whose goal is to ensure the safety of employees in the workplace and to modify the liability scheme of corporations (Scrocca at paragraph 106). This section does not in itself create an offence (Scrocca at paragraph 107). Section 217.1 of the Criminal Code [TRANSLATION] "confirms the duty imposed on every one who directs work to take reasonable steps to ensure the safety of others. It makes it easier to prove charges of criminal negligence against corporations or organizations although the meaning of the term "every one" extends the scope of this provision to all persons" (Scrocca at paragraph 107).

24 Given the scope of this provision, it was, therefore, reasonable for the officer to refer to it in his decision.

25 Thus, the officer did not err by considering criminal negligence under sections 217.1, 219 and 220 of the Criminal Code as equivalent to the offence that the applicant committed in Taiwan. His decision to reject the applicant's visa application was reasonable: if the offence were committed in Canada, it would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

26 For the foregoing reasons, the application for judicial review is dismissed.

27 Counsel for the applicant proposed the following questions for certification:

· 1.

Do the words, "shows wanton or reckless disregard" / "montre une insouciance déréglée ou téméraire", in subsection 219(1) of the Criminal Code create a Canadian defence to criminal negligence not deemed to exist in foreign jurisdictions and which, in making a determination of equivalency, the Designated Immigration Officer must reasonably:

· i.

determine was available to a person in the foreign jurisdiction at the relevant time; or

· ii.

conclude, on the facts, the person would not have been able to raise in Canada?

· 2.

Can a determination of equivalency reasonably be made between an offence under an Act of Parliament and a foreign offence where, on the facts, the act(s), or act(s) giving rise to conviction, of a person outside Canada, would have been within the exclusive jurisdiction of a province or territory and not Parliament had they taken place inside Canada?

28 In Liyanagamage v. Minister of Citizenship and Immigration (1994), 176 N.R. 4, the Federal Court of Appeal set out the following criteria with respect to subsection 83(1) of the Immigration Act, now replaced by paragraph 74(d) of the Immigration and Refugee Protection Act:

· In order to be certified pursuant to subsection 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of "importance" by Catzman J. in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569 (Ont. H.C.)) but it must also be one that is determinative of the appeal. The certification process contemplated by section 83 of the Immigration Act is neither to be equated with the reference process established by section 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case.

29 With regard to the first proposed question, the reformulation of methods already established to assess criminal equivalence is not disputed. I therefore concur with the written representations of counsel for the respondent who is opposed to the certification of this question.

30 The second proposed question is not relevant in any way to the decision at issue and is therefore not determinative. The officer in this case did not find that the applicant was inadmissible under paragraph 36(2)(b) of the Act but under paragraph 36(1)(b) of the Act. The question is therefore purely hypothetical.

31 Accordingly, there is no question for certification.

JUDGMENT

The application for judicial review of the decision by a visa officer at the Canadian Trade Office in Taipei refusing the applicant's application for a permanent resident visa based on paragraph 36(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.

IMMIGRATION BY THE NUMBERS

2012-01-14T09:24:00.001-05:00

Immigration trends — by the numbers Salim Mansur Columnists Comment London Free Press

DNA TESTS ORDERED IN RESPONSE TO RAMPANT FRAUD IN CHINA

2012-01-14T09:10:00.001-05:00

Rampant fraud in Canada's visa post in Beijing is not news. What is news is the new twist that children may be involved in fraudulent schemes. Vancouver Sun article below describes the concerns:

Feds using DNA to block suspected child smuggling

By Peter O'Neil, Vancouver SunJanuary 13, 2012

Canada's Immigration Minister Jason Kenney speaks during Question Period in the House of Commons on Parliament Hill in Ottawa December 13, 2011.

Photograph by: Chris Wattie, Reuters

OTTAWA — The federal government is using DNA testing to block attempts to sneak Chinese children through Canada's immigration system using phoney documents, an official said Friday.

The DNA initiative was one of several measures undertaken after an investigation of the estimated 275 applications for children filed annually through Canada's Beijing immigration office under the family class program found fake or altered birth certificates.

The investigation was launched amid concerns among Canadian officials about child trafficking taking place throughout China, according to internal documents covering the 2009-10 period that were obtained by immigration lawyer Richard Kurland.

The government was asked to confirm whether child traffickers attempted to fraudulently bring children into Canada.

"To the best of our knowledge, none of these cases have any links to human trafficking," Candice Malcolm, spokeswoman for Immigration Minister Jason Kenney, said in an email.

She said an investigation at Citizenship and Immigration Canada's Beijing office uncovered cases involving fraudulent documents, "such as fake birth certificates for children," being used to seek entry into Canada under the family class immigration category.

"Since discovering cases of birth certificate fraud, CIC has improved its review process," she said.

"We created a more strict document verification process that includes an interview, submission of a timeline of photographs, proof of written and ongoing correspondence, proof of financial support and, in extreme cases where birth certificate verification is not possible, DNA testing.

"Last year, approximately 10 per cent of birth certificates on (family class) applications in Beijing were sent to the anti-fraud unit for verification."

Kurland released internal government documents covering the 2009-10 period earlier this week that noted several examples of fraud involving Chinese immigration applicants.

One CIC Canada analysis noted that it is "common practice" for Chinese couples who have emigrated to Canada to return to China to have children, to then go back to Canada when their kids reach school age.

A study by the office's anti-fraud unit found that five per cent of the cases studied involved confirmed or suspected fraud, though the report doesn't indicate whether the children involved were trafficked.

"The exercise indicated that there is a significant risk of abuse" of the child application program, the report stated.

"In response, the FCU (Family Class Unit) has raised evidentiary requirements for this caseload."

Kurland said new Chinese immigrants to Canada often return to China to have children because they want their children to be close to grandparents.

The jump back to Canada, he said, reflects higher-quality public schooling in Canada and healthier living conditions in terms of factors such as air pollution.

Malcolm said the government accepts that many Canadians move abroad for work and family reasons.

"This is fine, so long as they follow our laws," she said.

"We also recognize that there are some cases where individuals come to Canada with the intent of abusing our generosity and receiving our protection, without ever intending to become true Canadians.

"We have said that Canadian citizenship is not for sale. That is why we have strengthened Canadian citizenship by cracking down on residency fraud, by strengthening language requirements, and by introducing a new Canadian history-based knowledge test for citizenship."

AMBASSADOR BRIDGE OWNER ORDERED TO JAIL FOR CONTEMPT

2012-01-13T08:57:00.001-05:00

The Canada-US Ambassador Bridge is in need of repair. The bridge may have outlived its usefulness.

Court won’t release Ambassador Bridge owner from jail - The Globe and Mail

HUNGARIAN ROMA IN HAMILTON HUMAN SMUGGLING TRIAL

2012-01-13T06:51:00.001-05:00

See article below from the Hamilton Spectator, ongoing case on human trafficking. As the economic situation in Hungary continues to deteriorate, the numbers will probably become larger. It is time to impose a visa on Hungary, as it seems unable to curb the abuse of our refugee determination system. A few years ago, the same situation arose with Roma citizens of the Czech Republic, until Canada reimposes a visa requirement.

Human trafficking case puts spotlight on refugee system

Nicole O'Reilly
January 12, 2012

An ongoing human trafficking case in Hamilton has sparked sharp criticism of Canada’s immigration and refugee system.
The case prosecutor, assistant Crown attorney Toni Skarica blames the removal of Hungarian visitors’ visa requirements for providing “the opportunity for the expansion of the ... criminal organization into Canada,” he wrote in a court document.
He denounced the alleged criminal organization as “an invasion of evil,” from Hungary.
“They came into Canada virtually unmolested and set up shop ... something has to be done to prevent that in the future,” Skarica said in court.
It’s the largest human trafficking case in Canadian history.
Since the RCMP issued arrest warrants more than 13 months ago, 13 members of an alleged Hungarian Roma criminal organization have been arrested.
A youth pleaded guilty and was deported in September and Lajos Domotor — a “latecomer” to the organization — pleaded guilty to human trafficking and criminal organization charges Tuesday. He is dying of stomach cancer and will spend up to 10½ months in custody before being deported back to Hungary.
There are 10 accused who remain in jail awaiting trial later this year. None can be named because of a publication ban.
The RCMP have statements from 19 alleged victims, who describe being forced to hand over their documentation, live in their captors’ basements and work for little or no pay.
Skarica and RCMP say the alleged criminal organization would recruit people from Hungary, pay for their airfare to Canada, have them claim refugee status, sign up for welfare and then work like slaves.
During Lajos Domotor’s sentencing Justice Stephen Glithero expressed shock that this criminal organization “came over here without any apparent challenge and set up shop.”
In 2001, Canada required Hungarians to apply for a visa before entering the country. This was in response to the large number of Hungarian refugee claims, explains Skarica in the court document obtained by the Hamilton Spectator.
But when Hungary entered the European Union, Canada lifted that visa requirement in March 2008. Since then, Hungarians have been flocking to Canada to claim refugee status, according to statistics released from Canada’s Immigration and Refugee Board.
In 2007, 34 Hungarians claimed refugee status, and of the cases finalized, 43 per cent were accepted as refugees. But in 2009, for instance, 2,423 Hungarians claimed refugee status. The refugee board was only able to get through 268, of which only 1 per cent were accepted.
Most cases are withdrawn or simply abandoned without notice or explanation.
Hungary went from not making the list of top 10 countries that refugee claimants come from to ranking second highest in 2009 and topping all countries in 2010.
In the first half of 2011, Hungary continued to dominate, with 1,600 refugee claimants referred to the board.
While the government doesn’t further break down the reasons people claim refugee status, anecdotally it’s understood many of the claimants coming from Hungary say they are persecuted because they are Roma, said Imre Helyes, head of the consular section of the Hungarian embassy in Ottawa.
Most of the victims and all of the accused in the ongoing human trafficking case are Roma.
The Roma population of Hungary has long claimed persecution and there is clearly racial tension between Hungarian nationals and the gypsy group. However, Helyes said he believes most claimants are simply trying to abuse Canada’s immigration and refugee system.
If lives were truly in danger, he said, why would so many people abandon or withdraw their refugee claims and choose to go back to Hungary?
There have been whispers about Canada considering imposing visa requirements on Hungary for the last few years. Immigration Minister Jason Kenney visited Budapest in June 2009, where he urged Hungarian authorities to take steps to stem the flood of refugee claimants.
Kenney’s office declined an interview request by The Spectator for this article, deferring to a Citizenship and Immigration Canada spokesperson who would not say whether the government is considering changing the visa requirement.
“We are concerned about the number of asylum claims coming from the EU, and in particular Hungary, as there has been a significant increase,” CIC spokesperson Nancy Caron said in an email.
The government passed the Balanced Refugee Reform Act last June, which makes a number of changes to the refugee claim system. Caron said when the act comes into effect this June, the government expects claimants to have their cases heard in a matter of weeks — it currently takes months.
Helyes said he believes these changes — particularly if cases are heard much faster — will be a deterrent to false asylum seekers.
Human trafficking is in no way only a Hungarian or Canadian issue. But it is one Hungary is focusing on, he said.
In Hungary, this starts with stricter law enforcement to “suppress” this activity, he said, adding that the country is also working on intelligence-gathering that it shares with allies.
But there are key differences in the justice systems of Canada and Hungary.
Prosecutors of the Hamilton case found that several of the accused human traffickers skipped out on criminal charges in Hungary when they came to Canada.
But when the Hungarian court can’t find or access a suspect, in many cases after a handful of years pass, the charges are dissolved. This happened with two alleged key members of the Roma criminal organization, who had criminal charges against them dropped in Hungary in 2006.
“This meant that (they) had status in Canada and were also free from any threat of deportation back to Hungary,” Skarica said in the court document. It was shortly after these developments that the pair began to expand their alleged organization in Canada.
Helyes confirmed there is a statute of limitations on some crimes, but he added that criminals who have fled Hungary are often extradited back for trial.
Hungary is aware of the human trafficking issue and authorities are committed to working with Canada, he said. Hungarian authorities have been working with the RCMP on the ongoing Hamilton case.
But to change the visa requirements would have much larger political implications.
A visa-free regime is a way of deepening the relationship between countries, Helyes said. But he also recognizes it comes with responsibility.
“Hungary has been very clear ... firmly stating that Hungary is ready and committed to co-operate with the Canadian side and/or take other measures if necessary.”

ASSAULT CONVICTION IN NEW YORK MAKES PERSON INADMISSIBLE TO CANADA

2012-01-12T08:34:00.000-05:00

When a person has been convicted of a nay criminal offence abroad and seeks entry to Canada, an assessment will be made as to the equivalency between the offence abroad and that in Canada. The case below is a good summary of the test to be applied:

Wang v. Canada (Minister of Citizenship and Immigration)
Between

Ru Wang, Applicant, and

The Minister of Citizenship and Immigration, Respondent

[2011] F.C.J. No. 1832

2011 FC 1510
Docket IMM-4226-11
Federal Court

Toronto, Ontario
Mactavish J.

Heard: December 20, 2011.

Judgment: December 22, 2011.

(36 paras.)
________________________________________

REASONS FOR JUDGMENT AND JUDGMENT

1 MACTAVISH J.:-- Ru Wang's Canadian wife's application to sponsor him was put on hold pending the determination of whether there were reasonable grounds to believe that he was inadmissible to Canada under paragraph 36(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA ]. The Immigration Appeal Division found that Mr. Wang was inadmissible as he had been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years.

2 Mr. Wang now seeks judicial review of the Board's decision, asserting that the Board erred in its equivalency analysis. For the reasons that follow, I have concluded that the Board did not err as alleged. As a consequence, the application for judicial review will be dismissed.

Background

3 Mr. Wang is a citizen of China, although he lived for some time in the United States. He married a Canadian citizen on December 19, 2006, and the couple has one American-born son.

4 On August 30, 2000, Mr. Wang was arrested in New York City and was charged with gang assault in the first degree and assault in the first degree. He subsequently pled guilty to assault in the second degree pursuant to Article 120.5 of the New York Penal Code [NYPC ]. He was sentenced by the Supreme Court of New York to 10 months imprisonment. This sentence was subsequently reduced to eight months.

5 Mr. Wang came to Canada on August 26, 2009, and filed a claim for refugee protection. He has since withdrawn his refugee claim and applied for permanent residence as a member of the family class.

6 On May 14, 2010, a report was issued under subsection 44(1) of IRPA alleging that Mr. Wang was inadmissible under paragraph 36(1)(b) of IRPA for having committed an offence in the United States that, if committed in Canada, would be equivalent to an offence under subsection 267(b) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 [Criminal Code], namely assault causing bodily harm.

7 The question of Mr. Wang's admissibility was initially referred to the Immigration Division for determination. In a decision dated September 15, 2010, the Immigration Division declared that Mr. Wang was not a person described in paragraph 36(1)(b) of IRPA. The Immigration Division determined that article 120.5(1) of the NYPC was not equivalent to section 267 of the Criminal Code, and that section 265 of the Code was the equivalent Canadian offence. Section 265 creates the offence of simple assault.

8 On appeal, the Immigration Appeal Division found Mr. Wang to be inadmissible to Canada pursuant to paragraph 36(1)(b) of IRPA. Applying, amongst other things, the test for aiding and abetting set out in section 21 of the Criminal Code, the Board found that a conviction under article 120.5(1) of the NYPC was equivalent to offences described under sections 267, 268 and 269 of the Criminal Code of Canada.

Standard of Review

9 Although Mr. Wang raised an issue of procedural fairness in his memorandum of fact and law, that issue was not pursued at the hearing. Consequently, the only matter in issue is the Board's equivalency finding.

10 Findings of equivalency are factual determinations which attract deference and are to be reviewed on the reasonableness standard: Abid v. Canada (Minister of Citizenship and Immigration), 2011 FC 164, 384 F.T.R. 74 at para. 11.

11 In reviewing a decision against the reasonableness standard, the Court must consider the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.

Statutory Framework

12 Mr. Wang was found to be inadmissible to Canada under paragraph 36(1)(b) of IRPA which provides that:

• 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

• [...]

• (b)

having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;

* * *

• 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants

• [...]

• b)

être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans;

13 In accordance with section 33 of IRPA, the facts underlying admissibility findings include facts "for which there are reasonable grounds to believe that they have occurred".

14 The Supreme Court of Canada described the "reasonable grounds to believe" evidentiary standard as requiring "something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities". Reasonable grounds will exist "where there is an objective basis for the belief which is based on compelling and credible information": Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at para. 114.

Information Regarding the Offence

15 The evidentiary record with respect to the events giving rise to Mr. Wang's conviction is sparse. We do not have a copy of the indictment, and thus do not know what acts he was charged with having committed. Nor do we have Mr. Wang's plea agreement, the judgment convicting him or the reasons for imposing sentence.

16 According to a police report in the file, Mr. Wang and four of his friends were sitting on a bench when a stranger came by. The five individuals approached the victim from behind, punched him in the head and face and shot him in the left thigh. I do not understand there to be any claim by the Minister that Mr. Wang actually fired the shots. In considering police report it must be recognized that it only contains allegations, and does not necessarily reflect the facts that actually formed the basis of Mr. Wang's conviction.

17 However, Mr. Wang's own rehabilitation application states that while walking around in a park with his friends, one of Mr. Wang's friends got into an argument with a stranger. When the argument became worse, Mr. Wang says that his friend "forced him" to go and get a gun at the friend's home. Mr. Wang says that he "reluctantly" followed his friend's order, and brought the gun back to him. The friend then "lost control" and fired twice, hitting the victim and Mr. Wang himself. It is noteworthy that in discussing the events giving rise to his criminal conviction, Mr. Wang makes no mention of having struck the victim in the head, leading to the clear inference that it was his role in the shooting that formed the basis of the conviction.

Analysis

18 Mr. Wang's first argument is that although it had been established that he had been convicted of assault in the second degree contrary to Article 120.5 of the NYPC, it was not established under which of the nine subsections of Article 120.5 he had been convicted.

19 The Board's finding that Mr. Wang had been convicted of an offence under Article 120.5(1) of the NYPC was reasonable. The Certificate of Disposition Indictment issued by the Supreme Court of the State of New York makes it quite clear that Mr. Wang's conviction of assault was entered under Article 120.5(1) of the NYPC. This subsection provides that a person is guilty of assault when the person "with intent to cause serious physical injury to another person ... causes injury to such person or to a third person".

20 The parties agree that in Hill v. Canada (Minister of Employment and Immigration) (1987), 1 Imm. L.R. (2d) 1, 73 N.R. 315 [Hill ], the Federal Court of Appeal determined that equivalency can be determined in one of three ways.

21 The first is "by a comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining therefrom the essential ingredients of the respective offences".

22 The second way that equivalency can be established is "by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not". Finally, equivalency can be established by a combination of the first two tests: all quotes from Hill, above at para. 16.

23 In this case, the Board appears to have applied a combination of the first two Hill tests, concluding that both the New York and the Canadian statutes require intent or knowledge, that the accused be a party to the offence, and that injury be caused to the victim.

24 The Board weighed the evidence before it and was satisfied that the Minister had established reasonable grounds to believe that Mr. Wang had committed acts amounting to aiding and abetting an assault causing bodily harm. In my view, this was a conclusion that was reasonably open to the Board on the record before it and does not fall outside the range of reasonable defensible outcomes on the facts and the law.

25 Based upon Mr. Wang's own admissions, the Board found that while involved in a five-on-one altercation, Mr. Wang had retrieved a firearm at the behest of a co-participant, who then used the gun to shoot the victim causing injury. The Board considered Mr. Wang's role in the offence, and whether he could have been deemed to be a party to the offence under Canadian law.

26 After examining the evidence, including Mr. Wang's admissions as to his role in the shooting incident, the Board concluded that there were reasonable grounds to believe that Mr. Wang had the requisite knowledge of the shooter's intent to bring him within the definition of an aider or abettor under section 21 of the Criminal Code. This was a reasonable conclusion. If Mr. Wang did not intend to assist in the commission of the offence, why did he go and get the gun?

27 While Mr. Wang now claims that he was acting under duress, the mens rea or mental element required under section 21 of the Criminal Code to deem a person to be a party to an offence in which he or she was not directly involved is not negated by duress: see R. v. Hibbert, [1995] 2 S.C.R. 973, [1995] S.C.J. No. 63 (Q.L.), at para. 39.

28 The Board concluded that, based upon Mr. Wang's own admissions, there were reasonable grounds to believe that he had pled guilty for his active involvement (bringing a gun to the principal actor) which he knew was to be used in the shooting of the victim. While the events surrounding Mr. Wang's plea are not entirely clear, I am satisfied that there was sufficient evidence before the Board to support its findings, having regard to the "reasonable grounds to believe" standard applicable to factual matters under section 36 of IRPA.

29 Finally, the Board's conclusion that Article 120.5(1) of the NYPC was equivalent to assault causing bodily harm under section 267 of the Criminal Code was also reasonable, having regard to the essential elements of each offence.

30 Both offences require the commission of an assault, as well as a mental element or intention. As previously discussed, the Board reasonably concluded that Mr. Wang's conviction for assault in New York, and his admitted involvement in the shooting, were sufficient to make him party to the offence under Canadian law, and to satisfy the requisite mental element of the offence.

31 Both the Canadian and the American offences also require the infliction of a significant injury.

32 The New York offence requires a "serious physical injury", which is defined in Article 10 of the NYPC as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ".

33 The Canadian offence requires "bodily harm", which is defined at section 2 of the Criminal Code as "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature".

34 The law does not require that offences be identical in every respect. As the Federal Court of Appeal observed in Li v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1060 at para. 18, what is required is "essentially the similarity of definitions of offences". In my view, the definition of the degree of injury required in the two offences is sufficiently similar as to render the offences equivalent for the purposes of a section 36 analysis. If anything, the "serious physical injury" element of the NYPC offence is more onerous that the "bodily harm" of the Canadian offence. That is, harm that qualifies as the "serious physical injury" for the purposes of the NYPC offence would necessarily qualify as "bodily harm" for the purposes of section 267 of the Criminal Code.

Conclusion

35 For these reasons, the application for judicial review is dismissed.

Certification

36 Neither party has suggested a question for certification, and none arises here.

JUDGMENT

• THIS COURT ORDERS AND ADJUDGES that:

• 1. This application for judicial review is dismissed; and

• 2. No serious question of general importance is certified.

MACTAVISH J.

IMMIGRANTS THAT THE ECONOMY DOES NOT NEED?

2012-01-12T06:53:00.002-05:00

The story below is familiar: immigrants come to Canada with high expectations and their hopes are quickly dashed. This is one more argument to ensure that Canada concentrates its efforts to bring immigrants that the economy needs, who come with prearranged employment or with the skills to find one quickly. Language ability is a must, as all studies show.

Immigrants struggle to land quality jobs in Canadian cities

Immigrants struggle to land quality jobs in Canadian cities

By Tamara Cunningham, Daily News

January 11, 2012

Ping Hui was an established environmental engineer with more than 25 years experience when she came to Canada from her home in China.
She expected a smooth transition into a career in Nanaimo, where her daughter studies criminology, but Hui has been at a loss to find even an entry-level job.
She teaches calligraphy at the Nanaimo Chinese Language and Arts Centre and picks up the occasional seasonal work folding clothes at department stores, but can't seem to find a permanent job. She's been looking for two years.
"They wanted me to pass an ESL test and get training and certification in Canada (for environmental engineering) and for that I have to go back to school," she said. "For me, that isn't an option."
Hui is not the only immigrant struggling to find work.
Canada attracts skilled foreign workers seeking for a lifestyle change or the chance to be closer to family. But when they get here, they face barriers to getting a job in their related fields because foreign education, training and accreditation is often not recognized. Some people remain unemployed while others pick up jobs they're overqualified for or minimum wage "survival" work, said Nanette Leather, director for the Nanaimo Immigration Centre.
"Engineers have to get a new license, become a part of the professional association, complete accreditation assessments and testing - and with all that work some decide it's better to just be a technician," she said.
A job shortage doesn't make the process of settling into a new community any easier. Although unemployment rates improved to 7.5% in December from a high of 16% last spring, experts say the job market is still limited and immigrants are hardest hit.
"It's unfortunate but when there are lots of unfilled positions, employers are willing to overlook or deal with challenges around language or culture," Leather said. "At the moment that's not happening."
The Immigration Centre saw more than 200 people between March 2010 and March 2011 access employment programs and services hoping to find work; with the majority of people coming from China and the Philippines.
Cedrik Ignacio, 35, immigrated to Canada from the Philippines nine months ago where he worked as a physiotherapist and ambulance attendant. It was his "dream to move to North America and establish a career," but was told when he arrived his credentials didn't apply. He would have to re-train.
"It was difficult to hear I'd have to go back to scratch," he said. "That could take a long time."
Ignacio found seasonal work for the holidays and now plans to train as a care attendant.
Helena Eskiltsen of Denmark moved to Nanaimo eight months ago with her Canadian husband to be closer to his family. She can afford to search for the right job because her husband works, but says the search is harder than she expected. She has a master's equivalent to business marketing and tourism.
"It's hard for everyone, but for immigrants you lack a network and your references are not always understood," she said.
"I haven't had any interviews yet, but I am not giving up."

AFTER 17 YEARS FEDERAL COURT ORDERS MUGESERA DEPORTED

2012-01-12T06:41:00.001-05:00

Do you think that there is something wrong with the Canadian refugee determination and immigration system? How does a war criminal mange to live in Canada for 17 years without being kept in custody? And eight years after the Supreme Cour of Canada a cleared the way for his deportation? Of course, he was "taken to hospital' right after the verdict...how convenient.

Immigration minister welcomes decision to deport Mugesera

By Katherine Wilton, THE GAZETTEJanuary 11, 2012

Saying that the Rwandan people deserve justice, federal Immigration Minister Jason Kenney has welcomed a Federal Court decision that could pave the way for the deportation of Léon Mugesera.
“He is guilty of serious war crimes and he has to face justice in his country of origin,” Kenney said in Montreal on Wednesday.
“This guy has gone all they way to the Supreme Court of Canada; at some stage we have to actually remove war criminals and stop talking about doing it.”
Federal Court Justice Michel M. J. Shore refused to quash a removal order against Mugesera, who was scheduled to be deported on Thursday afternoon. However, a few hours after hearing the verdict, Mugesera was taken by ambulance to a hospital in Quebec City.
The fact that Mugesera has been able to remain in Canada for 17 years after deportation proceedings first began shows that the government needs to “review how we can deport foreign criminals more quickly,” Kenney said.
Rwanda has “established a fair court system in their new, stable, democracy,” Kenney said.
“We do not send people back if our legal system determines they are likely to face cruel or unusual punishment,” he said. “Our system has determined that he does not face such risk and it is time for him to go.”
The court decision in the Mugesera case was made public at the same time Kenney was holding a press conference in Montreal. He was here to announce that the Canada Border Services Agency is expanding its “most wanted” list of people it wants to deport from Canada. Last July, the CBSA published a “most wanted” list of criminals and asked the public to call a hotline number to report on the whereabouts of those on the list. The list contained the names of 30 men suspected of war crimes or crimes against humanity. Since it was set up, 225 people have called in tips, allowing the CBSA to locate 15 people on the list. Of that number, seven people have been deported from Canada and another four have been located abroad.
The CBSA announced Wednesday that it has added another 30 names to the list, and expanded the categories to include those who are inadmissible to Canada on security grounds or for being involved in organized criminality here or abroad.
When the “most wanted list was first published last summer,” some opponents said they believed that the “outing” of war criminals undermines the presumption of innocence here, and wherever the suspect is deported to.
Kenney dismissed suggestions that putting names and pictures of criminals on its website could create problems for the men back home.
“We are not going to respond to every foreign criminal who constantly invent stories of risk,” he said.
Benoît Chiquette, the CBSA regional director for Quebec, said everyone on the list is inadmissible under immigration law and subject to a removal order.
At present, there are 42 names on the list. Some of the men have committed crimes in Canada and others have committed crimes in their native countries and are not entitled to live here.
“Canada’s borders are not open to those who break the law or endanger the safety of our citizens,” Kenney said.
He said the Conservative government is “coming forward with a legislative package this year to streamline the appeals process for foreign criminals.”

HUMANITARIAN AND COMPASSIONATE GROUNDS NOT SUFFICIENT TO OVERCOME FAILURE TO DISCLOSE CHILD

2012-01-11T08:59:00.001-05:00

Many applicants for permanent residency fail to disclose an existing child, not realizing the dire consequences of such failure. See recent case below for an illustration. Applicants are cautioned to seek legal counsel before following the advice of well-intentioned but ill-informed friends or non-lawyers.

Tesheira v. Canada (Minister of Citizenship and Immigration)

Romario Leonardo Tesheira, Applicant, and

Minister of Citizenship and Immigration, Respondent

[2011] F.C.J. No. 1787

2011 FC 1418
Docket IMM-1064-11
Federal Court

Montréal, Quebec
Pinard J.
Heard: October 19, 2011.

Judgment: December 14, 2011.

(17 paras.)
_______________________________________

REASONS FOR JUDGMENT AND JUDGMENT

1 PINARD J.:-- On February 18, 2011, Romario Leonardo Tesheira (the "applicant") filed the present application for judicial review of the decision of R. Choo Quan, a Designated Immigration Officer at the High Commission of Canada in Port-of-Spain, Trinidad and Tobago (the "officer"), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). The officer rejected the applicant's visa application for permanent residence as a member of the family class. Moreover, it should be noted at the outset that his brother Amol Devon Tesheira's application was also dismissed for the same reasons.

2 The applicant was born on July 13, 1994, in St. Vincent and the Grenadines, where he is a citizen and currently resides, allegedly with his aunt and brother Amol. His father resides in St. Vincent as well, but claims to have never lived with his sons, the applicant stating that they do not have a close relationship. The applicant's mother left St. Vincent in 1999 and became a permanent resident of Canada in 2002. The applicant and his brother stayed in St. Vincent, supposedly with their grandmother, because she could not bare the thought of being separated from all of her grandchildren, the applicant's three other siblings having gone to Canada with their mother. However, his grandmother passed away in 2007, which he claims left him and his brother under the care of his aunt who now suffers from cervical cancer.

3 When the applicant's mother applied for permanent residence in Canada, in 2002, sponsored by her husband at the time, from whom she divorced in 2006, she failed to mention the applicant and her other son Amol, who remained in St. Vincent, on her application. Having completed the application form on her own and having a very limited education, she did not know that she needed to mention all of her children as dependents: she only mentioned those with her. As a result, she was unaware that she would lose the right to sponsor them in the future.

4 In his decision dated November 17, 2010, the officer assessed the applicant's visa application for permanent residence as a member of the family class (subsections 12(1) of the Act and 117(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, as amended [the "Regulations"]) and based on humanitarian and compassionate grounds under section 25 of the Act.

5 The officer rejected the applicant's application as a member of the family class, specifically as a dependent child of his mother, the sponsor, on the basis of paragraph 117(9)(d) of the Regulations: "when [his mother] submitted her application for landing in Canada, she did not declare [him] as her dependant and [he] therefore, did not meet immigration requirements as her dependant".

6 The officer went on to consider the humanitarian and compassionate grounds raised in the applicant's application, specifically, his best interests as a child, the reunification of his family, his close relationship with his mother, the illness of his aunt and the lack of family to care for him in St. Vincent. Nonetheless, the officer concluded that the applicant had not demonstrated undue hardship would be incurred if he remained in St. Vincent and that it was in the applicant and his brother Amol's best interests to stay in St. Vincent together with their father and other relatives: they never resided with their mother in Canada and have been separated from her for the past eleven years, having also been separated from their other siblings for five years.

7 The relevant portions of the Act are as follows:

• Application before entering Canada

• 11. (1) A 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 may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.

• Family reunification

• 12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.

• Humanitarian and compassionate considerations -- request of foreign national

• 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

* * *

• Visa et documents

• 11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi.

• Regroupement familial

• 12. (1) La sélection des étrangers de la catégorie "regroupement familial" se fait en fonction de la relation qu'ils ont avec un citoyen canadien ou un résident permanent, à titre d'époux, de conjoint de fait, d'enfant ou de père ou mère ou à titre d'autre membre de la famille prévu par règlement.

• Séjour pour motif d'ordre humanitaire à la demande de l'étranger

• 25. (1) Le ministre doit, sur demande d'un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, sur demande d'un étranger se trouvant hors du Canada, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des considérations d'ordre humanitaire relatives à l'étranger le justifient, compte tenu de l'intérêt supérieur de l'enfant directement touché.

8 The relevant portion of the Regulations is as follows:

• Member

• 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is

(b) a dependent child of the sponsor;

• Excluded relationships

• (9)

A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

• (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

* * *

• Regroupement familial

• 117. (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu'ils ont avec le répondant les étrangers suivants :

• b)

ses enfants à charge;

• Restrictions

• (9)

Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :

• d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d'une demande à cet effet, l'étranger qui, à l'époque où cette demande a été faite, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle.

9 At the hearing before me, counsel for the applicant essentially argued that the appreciation of the facts made by the officer was sufficiently wrong to justify the intervention of the Court. I do not agree, for the following reasons.

10 The applicable standard of review to an officer's factual determinations is reasonableness (Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 [Khosa]; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]). This same standard of reasonableness applies to the officer's assessment of the best interests of a child, being a question of mixed fact and law (Legault v. Canada (Minister of Citizenship and Immigration) (C.A.), [2002] 4 F.C. 358 at para 9 [Legault]). Considerable deference is owed to such determinations made by the officer since visa applications are discretionary decisions (section 11 of the Act; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]). Therefore, the weighing of the relevant factors, whether it be in the assessment of the visa application by the officer, or whether it be in evaluating the best interests of a child, is not a function of this court: "a reviewing court should not disturb a decision made based on a "broad discretion" unless the [officer] has made some error in principle in exercising [his] discretion or has exercised [his] discretion in a capricious or vexatious manner" (see, for example, Legault at para 9; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para 9; Woldeselassie v. The Minister of Citizenship and Immigration, 2006 FC 1540 at para 14). Hence, it was the role of the officer to determine the appropriate weight to be given to the humanitarian and compassionate grounds raised by the applicant and the factors that go into this analysis (Suresh; Legault at para 9).

11 In the case at bar, the officer's analysis with respect to the humanitarian and compassionate grounds, including the best interests of the child, appears in the Computer Assisted Immigration Processing System ("CAIPS") notes and reads as follows:

• ... I have considered all factors, including the positive H&C factors and all arguments raised with respect to the best interests of a child, have given them due weight and have considered the positive factors against the facts that weight against granting an exemption under section 25 and have found the following: - Mother (sponsor) left St. Vincent when applicant was 3yrs old. Became a PR in 2002. The applicant was now 6yrs old. - Sponsor has never returned to St. Vincent to visit or care for applicant since leaving for Canada. - Applicant was left in the care of his gr-mother as stated by sponsor, no documentary evidence of same has been submitted. Gr-mother is now deceased and sponsor states applicant now lives with his aunt, Janet Adams who has since been diagnosed with cancer and can no longer care for the applicant. The sponsor has submitted no satisfactory evidence to confirm that the applicant in fact resides with Janet Adams. - Sponsor states that children's father cannot care for them as he is unemployed, however, the applicant's address listed on both the previous application of 2008 and the current application, is the same as the address listed for the applicant's father. I am not satisfied that the applicant does not continue to reside with his father in St. Vincent. - The sponsor states that she has continuously sent financial support for the upkeep of her children since she left for Canada. It is noted that seven Western Union money transfers were submitted in support of this claim for 2009 only. No other evidence of financial support has been submitted. The recipient of these funds is listed as Conrod Tesheira, the applicant's father, which further compounds the suggestion that the applicant remains in his care. - No other documentary evidence has been submitted in support of a continued relationship between the applicant and the sponsor. In the last 10yrs, the applicant has had two trips to Canada in Jul2006 & 2008 for minimal periods. The sponsor has not returned to St. Vincent. I find it unreasonable to believe that any strong bond or parent child relationship could have been established on these two visits. CONCLUSION: From the documents presented by the sponsor's lawyer in support of consideration under Sec25, I am satisfied that I have sufficient documentation to make an assessment and that I find no H&C factors exists. The applicant is now 14yrs old and continues to reside in St. Vincent with his father, one sibling and other family members. The applicant is currently attending High School and has not demonstrated any undue hardship will be incurred by remaining in St. Vincent. The applicant has never resided in Canada with his mother and has been separated from his mother for the last 11yrs and his other siblings for the last 5yrs. I am satisfied that remaining in St. Vincent with his father, sibling and other family members will be in the best interest of the child. Refused.

12 Upon hearing counsel for the parties and upon reviewing the relevant evidence, I conclude that the applicant has failed to show that the officer based his decision on an erroneous finding of fact that he made in a perverse or capricious manner or without regard for the material before him (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). In my view, the officer reasonably weighed the evidence, relying on the humanitarian and compassionate factors specified in the Guidelines and mentioned in Hawthorne v. Canada (Minister of Citizenship and Immigration) (C.A.), [2003] 2 F.C. 555 [Hawthorne]. Rather, the applicant merely did not provide sufficient evidence in support of his application.

13 As mentioned in his CAIPS notes, the officer concluded that the applicant had failed to provide evidence in support of many of his allegations, specifically his current residence and his current relationship with his mother. Hence, it was reasonable for the officer to conclude that the applicant resided with his father: the officer chose, as he is empowered to, to give more weight to the same addresses of the applicant and his father and that the money transfers were addressed to Conrod Tesheira, despite the applicant supposedly having a very limited relationship with him. Therefore, the officer's conclusion that it was in the applicant and his brother's best interests to remain in St. Vincent with their father was reasonable, being based on the officer's assessment of the evidence before him.

14 Moreover, it is trite law that the officer had an obligation to consider the best interests of the applicant and to be sensitive, alert and alive to the latter's best interests (see Hawthorne and Legault). In my view, the officer, in the present case, met this obligation and, in addition, his best interest analysis was proportionate to the applicant's submissions and the evidence he provided (Pillai v. The Minister of Citizenship and Immigration, 2008 FC 1312). In the CAIPS notes, the officer specified that he considered all factors, in addition to the best interests of a child, in refusing to grant the applicant humanitarian and compassionate relief, and then went on to identify which facts he relied on in making this negative decision, highlighting a lack of evidence to support the applicant's application. Therefore, the officer's assessment of the applicant's best interests was reasonable and it is not for this Court to reweigh the best interest factors.

15 Consequently, I find that the officer's conclusions fall within the "range of possible, acceptable outcomes which are defensible in respect of the facts and the law" (Dunsmuir at para 47), and are, therefore, reasonable.

16 For the above mentioned reasons, the application for judicial review is dismissed.

17 I agree with counsel for the parties that this is not a matter for certification.

JUDGMENT

The application for judicial review is dismissed.

PINARD J.

CBSA LIST OF WANTED CRIMINALS

2012-01-11T06:51:00.001-05:00

Here is the much discussed CBSA list. It is interesting that it does not list whether any of these persons have committed any crimes in Canada or whether tehy are dangerous adn people who identify them should be cautious if they see them.

Wanted by the CBSA

CHINESE CRIMINALS TARGET FOREIGN STUDENTS

2012-01-11T06:39:00.001-05:00

Foreign students in Canada should always be cautious, as there are many people
from their own community that are ready, willing and able to target them for
fraud. Beware of those who seem too solicitous and helpful and ask for personal
information! See story:

U-Pass fraudsters deported to China - British Columbia - CBC News

MORE ON "MOST WANTED LIST"

2012-01-10T06:45:00.001-05:00

The idea that we need to concerned with the privacy of people who are dangerous to our society and who are now fugitives is simply laughable.They have already received due process of law and have chosen to run away. They put all of us, citizens and law abiding immigrants, at risk and they make Canada the laughing stock of the world.

'Wanted' list may put deportees at risk: documents CTV News

'Wanted' list may put deportees at risk: documents

The Canadian Press

Updated: Mon. Jan. 9 2012 1:40 PM ET

OTTAWA — The Canada Border Services Agency was warned that publishing a "most wanted" list to track down and deport alleged foreign war criminals could instead trigger an immigration rule barring their removal, government documents show.
The list, posted on the border agency's website last July, asks the public to phone in tips on the whereabouts of denied migrants -- mostly failed refugee claimants -- the federal government accuses of committing war crimes or crimes against humanity before coming to Canada.
The list currently features mug shots and identifying details for 21 cases. Four others on the list have been deported, two remain in detention and a handful have since left the country on their own.
Immigration Minister Jason Kenney and Public Safety Minister Vic Toews have both said those involved in such crimes "will find no haven on our shores."
But a border agency briefing note prepared prior to the list's unveiling cautioned that putting a deportee on a "wanted war criminals" list could stir up attention back in their home country.
The possible notoriety could effectively paint a target on their back and put them at risk of torture or human-rights abuses, adds the note, obtained under the Access to Information Act.
Arshad Muhammad was arrested within two days of being put on the list.
But whether he will be sent back to his home country of Pakistan is now in doubt after immigration officials found him at risk of torture there.
The Immigration and Refugee Protection Act, the law governing deportations, can prevent a deportee from being kicked out if they face a significant chance of harm in the destination country.
Citizenship and Immigration Canada routinely conducts screenings for possible abuse before a removal, a process known as a pre-removal risk assessment.
The briefing note, about an early proposal for the wanted list, warns that the "release of this information would highlight a person's case to the public, potentially leading to the person being at risk when removed, potentially leading to a positive Pre-removal Risk Assessment."
A positive assessment means the deportation cannot proceed save for exceptional circumstances, such as if a deportee is deemed a danger to Canada.
A delegate of the immigration minister weighs the factors in deciding whether to allow a deportation, though the delegate's ruling could be overturned upon appeal to the Federal Court.
After Muhammad's name was posted by the border agency, media in Pakistan twigged to the publicity -- including Kenney linking him with a terrorist group -- and his family was threatened, said Lorne Waldman, a prominent immigration lawyer helping represent the man.
A minister's delegate has yet to decide whether Muhammad, who Waldman says was not deemed to be a threat by border agency officials, will be deported as planned or released. He may be reassessed in the future.
"What happened in Mr. Arshad's case is precisely what the CBSA predicted" in the internal memo, Waldman said in an interview.
Briefing notes also reveal border agency officials initially recommended the government take a go-slow approach after Toews' office "encouraged" the publishing of a wanted list.
Public servants suggested the list initially feature just five Toronto-area cases and be announced by news release only, documents show.
The pilot would allow "costs and benefits" -- including potential privacy and Charter challenges -- to be evaluated before a future expansion.
Instead, Toews and Kenney took the wraps off a Canada-wide wanted list featuring 30 cases at a Toronto news conference. A second list was later created for 32 people with deportation warrants for committing serious crimes on Canada soil.
Waldman said the internal recommendations confirm fears the Conservative government saw the wanted list mainly as a vehicle to burnish its tough-on-crime reputation.
"They put more priority on the message that they were seeking to send out as opposed to the actual implementation of the policy that they were trying to achieve," said Waldman, who called the wanted list "counterproductive."
All precautions were taken in the creation of both lists, a border agency spokesman said.
"The cases selected for inclusion on the website are researched for potential impacts and to ensure that appropriate due diligence is exercised," Luc Nadon said in an email.
The chance of risk stemming from wanted-list publication is "only one factor, out of many" determining whether a deportation goes through, Nadon said.

CHINESE APPLICANTS AND RESIDENCY FRAUD IN THE SPOTLIGHT

2012-01-10T06:31:00.003-05:00

The problem of document fraud in China, India, Russia and other countries has been going on for years. However, little is ever done about it. See article in the Vancouver Sun below:

New federal immigration rules exploited by fraudsters: documents

Federal anti-fraud unit finds 22 per cent of Chinese applicants misrepresented credentials

By Peter O'Neil, Vancouver Sun

January 9, 2012

Canadian flags are handed out to new Canadians at a recent citizenship ceremony in Ottawa.

Photograph by: Chris Mikukla, The Ottawa Citizen

OTTAWA — New federal immigration rules passed in 2008 to make the system more streamlined and "responsive" to Canadian economic needs were exploited by Chinese fraudsters, according to newly released internal documents.

The Conservative government quickly confirmed that the documents, obtained by immigration lawyer Richard Kurland, reflect an ongoing problem that needs to be tackled.

An official acknowledged concerns with bogus applications, particularly those relating to the arranged offer of employment (AEO) program.

"We are aware of this issue and are concerned," said Candice Malcolm, spokeswoman for Immigration Minister Jason Kenney.

"That is why we are currently reviewing options to strengthen the AEO process to prevent this fraud from taking place in the future."

She added that the Harper government has "done more than any government in Canadian history to crack down on all types of immigration fraud and strengthen the integrity of Canadian citizenship."

The documents underline a problem that is of particular concern to B.C., since close to a third of permanent residents allowed into Canada are from China.

Kurland said the documents show that understaffed Canadian missions in certain countries aren't able to contain the pressure from applicants who misrepresent themselves.

"It's China, it's Pakistan, it's Africa, and it's because some countries of the world do not have western democratic institutions issuing reliable paperwork. It's that simple," said Kurland, who obtained the documents through the Access to Information Act.

Canadian officials have "opened their eyes and they see the problem. The question is, what are they going to do about it, if anything?"

Kurland said the ongoing fraud problem could be handled by putting greater emphasis on recruiting skilled foreigners already in Canada under the Temporary Foreign Workers program.

Bill C-50, passed in 2008 under former minister Diane Finley, was intended to let the government set priorities in its selection of economic immigrants to ensure emphasis on the skilled workers needed by Canadian businesses.

But one study of skilled worker applicants from Hong Kong during the 2008-10 period, involving applicants claiming those skills who allegedly had AEOs, found that only 22 per cent had genuine jobs in Canada and many had "very low" English-speaking skills.

"There are serious problems with the validity of job offers" in the AEO category, wrote the authors of the analysis.

The Canadian government's anti-fraud unit in Beijing, meanwhile, did an analysis that found that, of applications between late 2008 and early 2010, more than one in five (22 per cent) of applicants misrepresented their own employment records.

The greatest abusers were supposed "financial auditors and accountants," as 42 per cent of them were lying about their credentials and were in many cases merely cashiers or bookkeepers.

Another above-average category was financial managers, with 27 per cent of applications being fraudulent.

"Employment fraud is an issue on certain profiles of C-50 applications," stated a summary of the report that considered applications for workers headed primarily to Ontario.

"A more thorough verification process is required."

Another 2010 study of applicants from Taiwan found that of 31 AEO applicants, the vast majority headed for B.C., only five — or 16 per cent of the total — actually took jobs with the employers that made the offers.

Kurland's documents pinpointed another fraud concern unrelated to C-50, involving the 275 or so applications for dependent children each year under the family class category.

The analysis noted that it is "common practice" for Chinese couples who have emigrated to Canada to return to China to have children, then go back to Canada when their kids reach school age.

The authors noted that there are persistent reports in China about child trafficking, raising the possibility that Canada's system could be exploited by traffickers.

The study found that five per cent of the cases studied involved confirmed or suspected fraud, though the report doesn't indicate whether the children involved were trafficked.

"The exercise indicated that there is a significant risk of abuse" of the child application program, the report stated.

"In response the family class unit has raised evidentiary requirements for this caseload."

B.C., long a magnet for Chinese immigration, attracted 9,317 of the 30,197 permanent residents from that country in 2010, according to government statistics.

Of the 17,934 Chinese students entering Canada in 2010, 6,061 went to B.C.

CANADA'S MOST WANTED LIST

2012-01-08T10:08:00.001-05:00

CBSA is basking in the success of its "most wanted list":

Canada's most wanted Toronto & GTA News Toronto Sun