This recent decision shows how lack of appropriate detail in the evidence presented by the applicant to support her job experience can easily lead to a refusal of the application. The situation is not uncommon. Applicants sometimes think that it is "easy" to handle immigration applications, and erroneously conclude that they can do them on their own, to save money. The results of such false confidence are self-evident.
Kaur v. Canada (Minister of Citizenship and Immigration)
BetweenBaljinder Kaur, Arvinder Singh, Paramjit Kaur, Applicants,
and
The Minister of Citizenship and Immigration, Respondent
[2010] F.C.J. No. 587
2010 FC 442Docket IMM-3475-09 Federal CourtToronto, OntarioTremblay-Lamer J.Heard: April 22, 2010.
Judgment: April 23, 2010.
(15 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application by Baljinder Kaur (the Applicant), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (IRPA) for judicial review of a decision dated June 15, 2009, by the Second Secretary (Immigration) of the Canadian High Commission in Delhi (the visa officer), denying the Applicant's application for a skilled worker visa.
2 The Applicant is a citizen of India. She applied for permanent residence in Canada as a skilled worker. She indicated that she was a cook, and had been employed in this trade for three and a half years.
3 In support of her application she provided a copy of a letter from an employer, stating that she was a good worker and had learned to cook many types of Indian meals. She also provided a brief description of her duties on a form submitted with her application.
4 The visa officer found these supporting documents to be insufficient. Therefore, he denied her application.
5 The visa officer never contacted the Applicant or her employer regarding his concerns. The Applicant only learned of them upon receiving the letter informing her of the rejection of her application.
6 The sole issue raised by the Applicant relates to procedural fairness. If the visa officer breached his duty of fairness, no deference will be owed to his decision, and it will be set aside, because "[i]t is for the courts ... to provide the legal answer to procedural fairness questions" (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at par. 100).
7 The Applicant submits that she provided a "detailed letter" stating that she performed the duties of a cook for three years and a half in India. The visa officer's concern that it was insufficient could easily have been addressed had he notified the Applicant. Indeed, the officer had a duty to do so. While the Applicant recognizes that she must present sufficient evidence in support of her claim, she argues that she did in fact submit sufficient prima facie evidence to impose on the visa officer a duty to address any outstanding concerns with her. She adds that she could not have anticipated the visa officer's doubts as to the sufficiency of her supporting materials.
8 The Minister submits that the Applicant's employer's letter was not detailed and indeed failed to include information, such as the Applicant's responsibilities at her workplace and her remuneration, which she was required to provide. Furthermore, it does not corroborate the list of duties submitted by the Applicant with her application.
9 The Applicant bears, and failed to discharge, the onus of submitting sufficient evidence in support of her application. Fairness did not require the visa officer to advise the Applicant of the inadequacy of her materials. The Applicant was not entitled to an interview to correct her own failings.
10 I agree with the Minister. The Applicant failed to discharge her burden to present adequate evidence in support of her obligation, and the visa officer had no duty to assist her in doing so. As Justice Marshall Rothstein, then of the Federal Court, Trial Division, held in Lam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239 (F.C.T.D.) at par. 3-4, the argument that an applicant might present prima facie evidence which, though insufficient to support his or her application will nevertheless trigger a duty to seek clarifications of this evidence :
gives an advantage to applicants for permanent residence who file ambiguous applications. This cannot be correct.
A visa officer may inquire further if he or she considers a further enquiry is warranted. Obviously, a visa officer cannot be wilfully blind in assessing an application and must act in good faith. However, there is no general obligation on a visa officer to make further inquiries when an application is ambiguous. The onus is on an applicant to file a clear application together with such supporting documentation as he or she considers advisable. The onus does not shift to the visa officer and there is no entitlement to a personal interview if the application is ambiguous or supporting material is not included.
11 It is true that in some cases a visa officer will indeed have a duty to put his concerns to an applicant. However, having reviewed the cases where such a duty was found to exist, justice Richard Mosley explained, in Hassani v. Canada (Minister of Citizenship and Immigration) 2006 FC 1283, [2007] 3 F.C.R. 501, at par. 24, that "it is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the Applicant to address his or her concerns." (See also, e.g., Roberts v. Canada (Citizenship and Immigration), 2009 FC 518 at par. 20 and the cases cited there for applications of that principle).
12 The question whether an applicant has the relevant experience as required by the regulations and is thus qualified for the trade or profession in which he or she claims to be a skilled worker is "based directly on the requirements of the legislation and regulations" (Hassani, above, at par. 26). Therefore it was up to the Applicant to submit sufficient evidence on this question, and the visa officer was not under a duty to apprise her of his concerns.
13 Besides, as the Minister points out, the Applicant was provided with a checklist to help her prepare her application. That checklist stipulated that letters of reference from employers "must include," inter alia, the Applicant's "main responsibilities in each position" which she held and her "total annual salary plus benefits." Yet the only independent evidence submitted was a letter by a former employer which failed to provide the required information.
14 The visa officer could be reasonably concerned at the utter lack of detail in the Applicant's employer's letter. It did not help that the Applicant's own description of her duties appeared to be copied from the National Occupational Classification. Thus, it was open to the visa officer, on the basis of the scant evidence before him, to find that the Applicant had not established that she had sufficient work experience in her stated occupation, and to reject her application on that basis.
15 For these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that:
For these reasons, the application for judicial review is dismissed.
TREMBLAY-LAMER J.
Monday, May 31, 2010
Sunday, May 30, 2010
BEWARE OF THIS "LOTTERY"
This article appeared in Maclean's magazine. I have seen the previous incarnation of this "website" .What is interesting is that the body regulating lotteries in the Province of Quebec does not appear to have done much to put a stop to this.
BEWARE!
Selling hope to the unwitting
May 29, 2010 by Michael Friscolanti
The federal government is about to announce new legislation aimed at cracking down—yet again—on fraudulent, fly-by-night immigration consultants. The details are still secret, but in a recent speech to a gathering of lawyers, Immigration Minister Jason Kenney said Ottawa is serious about cleaning up the racket once and for all, and assured his audience that tougher rules are imminent.In the meantime, people all over the world will keep sending cash to Ehab Lotfi—hoping to “win” their way into Canada.
As Maclean’s readers may remember, Lotfi was the proud founder of the “Canadian Immigration Lottery,” a slick website that, minus the fine print, made it seem as though Canada actually operates an immigration lottery. We don’t, of course. What Lotfi’s Montreal company was really doing was charging wannabe newcomers $115 a pop for the chance to win an all-expenses paid visa application. Thousands signed up. Hundreds “won.” Profits were made.
At the time, Lotfi insisted that his site was an innocent “marketing tool,” and not a scam to trick the naive and the desperate into thinking they could really win a spot in Canada. But when industry regulators launched an investigation, Lotfi opted for a name change. The Canadian Immigration Lottery became CIFA (Canadian Immigration Financial Assistance).
Today, the controversial website is called something else: canadagreencard.org.
The problem? Canada doesn’t give out green cards. America does. But that hasn’t stopped Lotfi and his associates from reeling in the contestants. “At Canada Green Card, we believe that dreams do come true,” the website says. “Never stop dreaming.”
The concept is exactly the same as the original lottery. Applicants pay $115 to Lotfi’s firm, Canadian Immigration House (CIH), to be entered into a random daily draw. Winners receive a professionally crafted visa application, a service that typically costs around $2,000. Losers receive nothing—except the fuzzy feeling of knowing that their entry fees helped cover the winners’ prizes.
Back in 2006, Lotfi admitted the obvious: that he was also pocketing a cut. (“I’m running a business,” he said. “It’s not a one-way business.”) But now that his creation is called the Canada Green Card program, he insists he is losing money—and quite happily. “I am helping these people, and I don’t care what you think about it, what other people think about it, what you write, what you don’t write,” he said. “My clients love me and my clients believe in me.”
The Canadian Society of Immigration Consultants (CSIC) does not believe him. The organization, which regulates the profession across the country, revoked his membership in January. “Many individuals are seeking anything they can to try to establish a foothold in Canada,” says Nigel Thomson, the CSIC’s chair. “You can say that people are gullible and they should know better, but when you’re desperate you search out whatever means you can.”
Lotfi has hired a lawyer and is promising to take the CSIC to court, arguing that the organization doesn’t have the legal authority to blacklist him. He also denies any suggestion that someone on the other side of the world might stumble across the new website and assume that it’s a raffle for genuine green cards. “If people are applying for immigration, they are educated, and when they read the website exactly they will understand there is no green card,” he said. “I think it’s well-explained.”
Lotfi is so confident in the credibility of his “charity” work that he agreed to pose for a picture—until the Maclean’s photographer actually showed up at his office. Lotfi phoned the police instead.
BEWARE!
Selling hope to the unwitting
May 29, 2010 by Michael Friscolanti
The federal government is about to announce new legislation aimed at cracking down—yet again—on fraudulent, fly-by-night immigration consultants. The details are still secret, but in a recent speech to a gathering of lawyers, Immigration Minister Jason Kenney said Ottawa is serious about cleaning up the racket once and for all, and assured his audience that tougher rules are imminent.In the meantime, people all over the world will keep sending cash to Ehab Lotfi—hoping to “win” their way into Canada.
As Maclean’s readers may remember, Lotfi was the proud founder of the “Canadian Immigration Lottery,” a slick website that, minus the fine print, made it seem as though Canada actually operates an immigration lottery. We don’t, of course. What Lotfi’s Montreal company was really doing was charging wannabe newcomers $115 a pop for the chance to win an all-expenses paid visa application. Thousands signed up. Hundreds “won.” Profits were made.
At the time, Lotfi insisted that his site was an innocent “marketing tool,” and not a scam to trick the naive and the desperate into thinking they could really win a spot in Canada. But when industry regulators launched an investigation, Lotfi opted for a name change. The Canadian Immigration Lottery became CIFA (Canadian Immigration Financial Assistance).
Today, the controversial website is called something else: canadagreencard.org.
The problem? Canada doesn’t give out green cards. America does. But that hasn’t stopped Lotfi and his associates from reeling in the contestants. “At Canada Green Card, we believe that dreams do come true,” the website says. “Never stop dreaming.”
The concept is exactly the same as the original lottery. Applicants pay $115 to Lotfi’s firm, Canadian Immigration House (CIH), to be entered into a random daily draw. Winners receive a professionally crafted visa application, a service that typically costs around $2,000. Losers receive nothing—except the fuzzy feeling of knowing that their entry fees helped cover the winners’ prizes.
Back in 2006, Lotfi admitted the obvious: that he was also pocketing a cut. (“I’m running a business,” he said. “It’s not a one-way business.”) But now that his creation is called the Canada Green Card program, he insists he is losing money—and quite happily. “I am helping these people, and I don’t care what you think about it, what other people think about it, what you write, what you don’t write,” he said. “My clients love me and my clients believe in me.”
The Canadian Society of Immigration Consultants (CSIC) does not believe him. The organization, which regulates the profession across the country, revoked his membership in January. “Many individuals are seeking anything they can to try to establish a foothold in Canada,” says Nigel Thomson, the CSIC’s chair. “You can say that people are gullible and they should know better, but when you’re desperate you search out whatever means you can.”
Lotfi has hired a lawyer and is promising to take the CSIC to court, arguing that the organization doesn’t have the legal authority to blacklist him. He also denies any suggestion that someone on the other side of the world might stumble across the new website and assume that it’s a raffle for genuine green cards. “If people are applying for immigration, they are educated, and when they read the website exactly they will understand there is no green card,” he said. “I think it’s well-explained.”
Lotfi is so confident in the credibility of his “charity” work that he agreed to pose for a picture—until the Maclean’s photographer actually showed up at his office. Lotfi phoned the police instead.
Friday, May 28, 2010
MEXICO'S CALDERON COMPLAINS ABOUT VISAS
May be President Calderon should start by wiping out the drug cartels and the culture of corruption that reigns in Mexico before complaining about what Canada does to stem the flow of refugee claimants. If the situation was reversed, would Mexico tolerate Canadians going there, claiming refugee status, collecting welfare and getting legal aid, clogging the system? Mexico has some of the most stringent immigration laws in the Western hemisphere and regularly expels thousands of people from neighbouring countries such as Honduras, El Salvador, Nicaragua, Guatemala, etc. Complaining about the visa imposition should not be a substitute for fixing Mexico's dire situation.
Calderon ‘Regrets’ Canada Visa Rule, Promotes Mexico (Update1) - BusinessWeek
Calderon ‘Regrets’ Canada Visa Rule, Promotes Mexico (Update1) - BusinessWeek
Thursday, May 27, 2010
Canada will have more seniors than kids in the next decade: StatsCan
No doubt, this should have a serious impact on our immigration policies, reinforcing the fact that we need younger, more dynamic immigrants to ensure economic activity, and that we need to rethink immigration programs such as sponsorships of parents and grandparents who will not join the labour force. This is a wake up call for policy makers.
Canada will have more seniors than kids in the next decade: StatsCan Posted National Post
Canada will have more seniors than kids in the next decade: StatsCan Posted National Post
Tuesday, May 25, 2010
IF IT SOUNDS TOO GOOD ....
This article from today's Globe and Mail is a fairly typical story: a "consultant" makes outlandish promises that sound "perfect", misrepresents "connections" and "guarantees" a good result. The trouble is that those promises are just that....empty promises. On the other hand, the "client" is not without blame: he was eager to bring people to work in his business, and instead of hiring a reputable immigration lawyer who would give him accurate and measured advice, he opted for someone with purported "connections", hoping to gain the inside track. The result? no success, and his money wasted. The lesson? Hire competent immigration lawyers who give realistic advice and have a proven track record, and stay away from individuals who promise success and offer "money back guarantees". Professionals must be compensated accordingly, and NEVER guarantee a specific result, as they do not make the decisions. A professional can only offer to use his best efforts in a case, in accordance with his experience and with the law. What is also interesting here is that the "client" wanted to bring foreign workers for a construction business at a time when there are many unemployed Canadians in that industry. Had the client received good advice from an immigration lawyer, he would have been told that it would be extremely difficult to bring foreign construction workers in these hard economic times and probably would not have proceeded with the application, or at least have done so with lowered expectations.
'Ghost agents' slip through immigration loophole - The Globe and Mail
'Ghost agents' slip through immigration loophole - The Globe and Mail
Sunday, May 23, 2010
IMMIGRATION CONSULTANTS MAY FACE STRONGER REGULATION
This is long overdue. However, I doubt that any kind of regulatory regime will deter people abroad from defrauding potential immigrants with outlandish promises and misrepresentations of influence with government officials. What must be understood is that , unless a person is a Canadian citizen, and physically resident and doing business in Canada, there can be no extra-territorial application of the law, it is impossible to prosecute the worst offenders who concoct grandiose schemes or who commit outright fraud. The only solution is a firm ban on consultants operating abroad, and to bring those in Canada under the jurisdiction of the provincial law societies to enforce strict education and ethical standards.
Feds ponder tougher controls over immigration consultants
Feds ponder tougher controls over immigration consultants
By Norma Greenaway, Canwest News Service
May 22, 2010
Federal Citizenship and Immigration Minister Jason Kenney is expected to propose a more robust regulatory body as part of a long-promised legislative package aimed at cracking down on unscrupulous "ghost" immigration consultants, Canwest News Service has learned.
OTTAWA — The body currently regulating immigration consultants in Canada could be replaced by a more accountable organization with stronger investigative powers under new measures the federal government is preparing to introduce in Parliament.
Immigration Minister Jason Kenney is expected to propose a more robust regulatory body as part of a long-promised legislative package aimed at cracking down on unscrupulous "ghost" consultants, Canwest News Service has learned.
The package, which Kenney plans to unveil within the next couple of weeks, is also expected to make it an offence for anyone to misrepresent themselves to prospective immigrants if they are not lawyers or certified immigration consultants.
New Democrat MP Olivia Chow hasn't seen the proposals, but she is optimistic they will meet the key demand of the all-party immigration committee to create a more muscular regulator.
"He understands the problem. He's heard the complaints," said Chow, her party's immigration critic.
"Ghost" consultants operate inside Canada and abroad without any oversight, charging prospective immigrants thousands of dollars to fill out applications, which they may load with false information and which, in some cases, they don't even submit.
They earned the "ghost" label because they are not seen by immigration officials and their names appear nowhere on the paperwork submitted to the government.
Unlike lawyers and certified immigration consultants, they don't have to adhere to education and ethical standards imposed respectively by provincial law societies or the Canadian Society of Immigration Consultants, a private corporation established in 2004 by the federal government. Many operate abroad, making it difficult for authorities here to put them out of business.
The new measures will likely include a provision requiring applicants to provide the names of people they paid to help them with their paper work, sources said, with a promise their applications will not be affected if they are found to have used an illegitimate representative.
Canada admitted about 250,000 new permanent residents last year, meaning uncertified consultants have a large pool of prospective clients to tap into.
Chow said she's been bending Kenney's ear on the need to tighten the regulatory regime for consultants since he was named immigration minister in 2008.
"I told him, don't be soft on crime against immigrants," she said, purposely applying the "soft on crime" label the ruling Tories like to hurl at opposition politicians.
The CSIC has been criticized by some of its members, the Canadian Bar Association and politicians of all stripes for not being effective enough in regulating its own membership and going after bad consultants.
Barring a last-minute change of plan, the government intends to replace the CSIC with a new organization, modelled along the lines of provincial law societies, with strengthened powers to investigate its members, prosecute misconduct and compel testimony from witnesses. It would be created as a federal entity, making it more accountable to its members and the public.
There likely will be a transition period during which the estimated 1,700 consultants registered with CSIC will continue to be recognized as legitimate representatives until the new regulatory body is up and running.
The report by the immigration committee, which received support from all parties, called for a new regulatory body after hearing a litany of complaints about CSIC during cross-Canada hearings that, it said, could not be attributed to growing pains.
The committee said it heard that CSIC membership fees were too high, decision-making is undemocratic and lacks transparency, and that the board of directors is not accountable to anyone.
The report also highlighted a rule change that makes it a professional offence to "undermine" CSIC, a change that has resulted in a handful of its members being disciplined because, they say, they publicly endorsed the immigration committee's call for a new regulatory authority.
The consultants are challenging their treatment in the Federal Court of Canada.
Nigel Thomson, chairman of the CSIC, defended the organization, saying it does a good job of educating members, weeding out bad ones and handling complaints.
He acknowledged, however, he is out of loop on what the government is planning and that CSIC has not been asked for input. Thomson said his repeated requests for a meeting with Kenney have gone unanswered.
Feds ponder tougher controls over immigration consultants
Feds ponder tougher controls over immigration consultants
By Norma Greenaway, Canwest News Service
May 22, 2010
Federal Citizenship and Immigration Minister Jason Kenney is expected to propose a more robust regulatory body as part of a long-promised legislative package aimed at cracking down on unscrupulous "ghost" immigration consultants, Canwest News Service has learned.
OTTAWA — The body currently regulating immigration consultants in Canada could be replaced by a more accountable organization with stronger investigative powers under new measures the federal government is preparing to introduce in Parliament.
Immigration Minister Jason Kenney is expected to propose a more robust regulatory body as part of a long-promised legislative package aimed at cracking down on unscrupulous "ghost" consultants, Canwest News Service has learned.
The package, which Kenney plans to unveil within the next couple of weeks, is also expected to make it an offence for anyone to misrepresent themselves to prospective immigrants if they are not lawyers or certified immigration consultants.
New Democrat MP Olivia Chow hasn't seen the proposals, but she is optimistic they will meet the key demand of the all-party immigration committee to create a more muscular regulator.
"He understands the problem. He's heard the complaints," said Chow, her party's immigration critic.
"Ghost" consultants operate inside Canada and abroad without any oversight, charging prospective immigrants thousands of dollars to fill out applications, which they may load with false information and which, in some cases, they don't even submit.
They earned the "ghost" label because they are not seen by immigration officials and their names appear nowhere on the paperwork submitted to the government.
Unlike lawyers and certified immigration consultants, they don't have to adhere to education and ethical standards imposed respectively by provincial law societies or the Canadian Society of Immigration Consultants, a private corporation established in 2004 by the federal government. Many operate abroad, making it difficult for authorities here to put them out of business.
The new measures will likely include a provision requiring applicants to provide the names of people they paid to help them with their paper work, sources said, with a promise their applications will not be affected if they are found to have used an illegitimate representative.
Canada admitted about 250,000 new permanent residents last year, meaning uncertified consultants have a large pool of prospective clients to tap into.
Chow said she's been bending Kenney's ear on the need to tighten the regulatory regime for consultants since he was named immigration minister in 2008.
"I told him, don't be soft on crime against immigrants," she said, purposely applying the "soft on crime" label the ruling Tories like to hurl at opposition politicians.
The CSIC has been criticized by some of its members, the Canadian Bar Association and politicians of all stripes for not being effective enough in regulating its own membership and going after bad consultants.
Barring a last-minute change of plan, the government intends to replace the CSIC with a new organization, modelled along the lines of provincial law societies, with strengthened powers to investigate its members, prosecute misconduct and compel testimony from witnesses. It would be created as a federal entity, making it more accountable to its members and the public.
There likely will be a transition period during which the estimated 1,700 consultants registered with CSIC will continue to be recognized as legitimate representatives until the new regulatory body is up and running.
The report by the immigration committee, which received support from all parties, called for a new regulatory body after hearing a litany of complaints about CSIC during cross-Canada hearings that, it said, could not be attributed to growing pains.
The committee said it heard that CSIC membership fees were too high, decision-making is undemocratic and lacks transparency, and that the board of directors is not accountable to anyone.
The report also highlighted a rule change that makes it a professional offence to "undermine" CSIC, a change that has resulted in a handful of its members being disciplined because, they say, they publicly endorsed the immigration committee's call for a new regulatory authority.
The consultants are challenging their treatment in the Federal Court of Canada.
Nigel Thomson, chairman of the CSIC, defended the organization, saying it does a good job of educating members, weeding out bad ones and handling complaints.
He acknowledged, however, he is out of loop on what the government is planning and that CSIC has not been asked for input. Thomson said his repeated requests for a meeting with Kenney have gone unanswered.
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