Friday, December 31, 2010

CBSA EMPLOYEE KEEPS JOB DESPITE MISCONDUCT

See this story from today's National Post. If accurate, this is story is quite amazing: despite wasting an enormous amount of time on the job, sending nude photos through government email, and apparently not being forthcoming during the investigation, this individual gets to keep his job.

Would he have kept his job in the private sector? Probably not, as his conduct would have been grounds for dismissal with just cause. No private sector employer would have tolerated such conduct. Obviously, if he spent five hours a day on this matter, he was probably not doing much else at work, given the eight hour days....In the private sector, his desk would have been cleared within five minutes. I wonder if the story is missing something from the facts, as this is quite incredible.

But I suppose we are "nice Canadians" so we must tolerate tax dollars wasted, inefficiency and unbecoming conduct. What do civil servants need to do to get fired? This is puzzling....Only in Canada....


Civil servant keeps job despite porn


Civil servant keeps job despite porn

Glen McGregor, Postmedia News · Friday, Dec. 31, 2010

A federal government employee who spent as much as five hours a day searching pornographic personal ads on his office computer and sending naked photos of himself from his work email has kept his job.

The Canadian Border Services Agency has conducted an investigation into allegations an employee in its national headquarters in Ottawa was reading and responding to sexually explicit ads on Craigslist, Kijiji and other sites while at work. The department was tipped off in January by a member of the public who thought it inappropriate to use a government email address to respond to personal ads.

The professional standards investigation revealed the unidentified employee spent 176 hours--about 4½work weeks --on the Internet over a three-month period.

A search of his CBSA email account found he had used it to send and receive explicit descriptions and photos, including pictures of genitalia and sex acts.

"He exchanges emails with interested parties and gives detailed descriptions of himself, including his sexual organs," the investigation report says. "He speaks of his sexual preferences and comments on explicit photographs of sexual acts sent to him by people responding to his ad."

The employee will also "forward to interested parties naked photos of himself (head excluded). These pictures are extremely explicit and inappropriate."

The numerous hours spent on the Internet every day affects his work, the report concludes. Investigators said that the employee had breached the agency's policy on the use of electronic resources.

But CBSA would not say what disciplinary action was taken.

"We can confirm that following the professional standards investigation, appropriate disciplinary measures were taken," spokeswoman Esme Bailey said in an email. "We can also tell you that the employee does not occupy a position that interacts with the general public."

Ms. Bailey said CBSA allows limited personal use of email and the Internet, provided it complies with other policies.

"The incidence of misuse of workplace equipment is very low," she said.

Although CBSA restricts access to Craigslist, the employee was able to get to the personal ads by using a variant of the address not blocked by the department's servers. The web logs show he spent the most time on usedottawa.com,a classified ads site, and investigators said it was safe to assume some of this time was spent on its personal listings. The employee had been working for the department for six years at the time of the investigation.

During an interview with investigators, he first said he was accessing the ads on his lunch-hour and breaks. Later, he said he spent three hours a day searching personal ads and said he couldn't argue if the web logs showed he sometimes spent five hours daily online.

He said the nude photos he sends out are not of himself. He said he is a hard worker and felt guilty about the inappropriate Internet use.
.

Read more: http://www.nationalpost.com/Civil+servant+keeps+despite+porn/4043797/story.html#ixzz19hpfj0b8

Thursday, December 30, 2010

IMMIGRATION CHANGING PRINCE EDWARD ISLAND

Interesting update, but it fails to mention that the Provincial Nominee Program is under scrutiny now. the question is how many people who declare an intention to settle in PEI really do so, remain there, and create jobs. More details are necessary.

Immigrant influx changing face of P.E.I. Posted National Post

Wednesday, December 29, 2010

LANGUAGE TRAINING NEEDS SKYROCKET

Provinces are under a tremendous amount of stress coping with the growing needs for free language classes by newcomers who have no official language skills and little education, many of them being refugees, and its consequential costs. The article below mentions the needs to be met but not the cost. Governments around the country spend several billion dollars a year on language training, highlighting our dysfunctional immigration policy which should instead be geared towards attracting those ready to enter the labour force, highly trained and language-ready. The article also fails to mention how the students featured support themselves while they attend classes, it would have been interesting to know that aspect of their lives, both to see if they have to be commended for making sacrifices, or if they are on social assistance. Especially troubling is the statement in the story that:"Depending on what skills a student arrives with, academic language proficiency can take up to seven years. Supports must be put in place to ensure these students feel comfortable in the classroom and ready to learn". What does it mean? Seven years of not being ready to work? Subsidies? This is confusing. This is a "feel good" story, but hardly analytical. The government needs to find a way to reduce these costs and improve productivity and efficiency, as Canada lags on both those metrics according to recent studies.


Language education needs multiply with immigration

Language education needs multiply with immigration

By Jeanette Stewart, The StarPhoenix
December 28, 2010

At Mount Royal Collegiate’s holiday potluck, sticky rice wrapped in banana leaf nudges cranberry sauce and a spicy chickpea salad sits beside turkey and dressing.

Students and teachers form a long line for the food, with more than 90 people coming together for a holiday meal shared by the students and teachers who are part of the school’s rapidly expanding English as an Additional Language program.

Enrolment in English language programs at Saskatoon Public Schools has tripled in city elementary schools and doubled in public high schools since the 2008-09 school year, to more than 1,000 students this year from about 400. Administrators are preparing for a further influx of students who need extra help with English as the province accepts an increasing number of immigrants.

“It’s like knowing you’re going to have company, but not knowing when they’re coming or how many are coming,” said Donnalee Weinmaster, superintendent of education for the public division. She oversees the EAL program.

In 2001-02, the province accepted 92 immigrants — that number grew to 9,002 in 2009-10. During the last decade, more than 30,000 people have come to the province, and the impact is being felt strongly in Saskatoon’s schools. Acquiring basic English takes about two years. Depending on what skills a student arrives with, academic language proficiency can take up to seven years. Supports must be put in place to ensure these students feel comfortable in the classroom and ready to learn.

The four students selected by EAL teacher Lana Lehr for an interview are friendly and articulate, at times talking over one another in their eagerness to share their stories of how they came to Canada and the vast differences between life in our country and the ones they came from.

“I really lucked out,” said Lehr about her students, whose faces are those of a changing city and province, one that for decades lagged behind more cosmopolitan cities such as Montreal and Toronto when it came to immigration.

Mahasin Adam, 21, came from Sudan two years ago. She lived in a refugee camp in the country all her life and when her father disappeared, her older brother left school to take care of the family. Her mother applied to emigrate and her entire family was brought to Canada because of the circumstances surrounding her father’s disappearance.

During the potluck meal, Adam opens up. She wants to be a journalist or a writer, though she’s unsure she’ll ever find the proper words. English is her fourth language and she speaks rapidly in Arabic with her sister, who will also graduate from Mount Royal this year.

In Eritria, their country of origin, the nation’s media is strictly controlled by the government. According to the BBC, it is the only African country without a privately owned news media, with its private press closed in 2001 for endangering national security. Reporters Without Borders classify it as the worst country in the world for press freedom.

There, a career as a journalist is a position of respect. For Adam, becoming a writer is a chance for her to tell her story.

“I have so many things to learn,” she said. “Maybe I can, maybe I can’t.”

Most of the students share common bonds — life in refugee camps, a tenuous education and inadequate health care. For the most part, their families came seeking a life of peace and opportunity for their children.

Karwan Mahmoodpour’s family spent 20 years in Iraq before they were forced out of the country. As Kurdish people in Turkey, they were forced to report to police daily and were one of many families seeking escape from oppression.

The now-16-year-old and his family came to Canada 4 1/2 years ago because his younger brother needed heart surgery. Mahmoodpour is a bright, articulate teenager who would like to become a doctor or a dentist.

“That’s my plan, but if that doesn’t work, I play soccer and I have dreams of becoming a soccer player,” he said.

For Bwe Doh Sue, 19, life in Canada presents a chance to create change for his people. Sue belongs to the Karen people, an ethnic group in Myanmar (Burma). His people have been victims of ethnic cleansing under Myanmar’s military regime for decades, and like many of the Karen people who have come to Canada from Thai refugee camps, his goal is to advocate for his people and his country, which is controlled by military leaders.

“I came here for my people,” he said. “I want to make a change of Burma.”

The self-assured, confident and well-spoken teen is already a strong advocate for his people and community. This fall he was chosen to address the public school board on Mount Royal’s EAL program.

His popularity at the school is evident, as he moves from table to table chatting with students and teachers alike.

EAL teachers such as Lehr have created a close community within their classroom. While at times the English of the students is hard to comprehend, they have a knack for understanding one another’s particular accents and phrasing.

The quietest of the four students is Hari Adhikari. Adhikari, 19, came from Nepal 1 1/2 years ago.

“When first I came I was so unhappy,” she said. “Now I like it here.”

Mount Royal has received the greatest influx of high school English learners, and the classrooms and hallways are where they receive their introduction to language and culture.

There are no signs the growth in EAL students will stop.

“We anticipate the same rate of growth in the next year and a half as seen in the last year and a half,” said Weinmaster. “It’s incredibly exciting. It’s an exciting time in our city, it’s an exciting time in our schools. We’re working really, really hard to ensure that all students have equal opportunities to learn and to grow academically, socially.”

Providing extra supports to English learners costs money, and while it is happy to deal with the richness these students bring to the classroom, the division must fund teaching staff, a program co-ordinator and supports such as speech and language pathologists, school counsellors and support for the families. The school division is also working to provide enough professional development for teachers who want to learn more about teaching students who need help with English.

The number of full-time EAL teachers has gone up from 12 in the 2008-09 school year, to 30 as of Dec. 10. This costs the division about $1.1-million more per year.

Extra costs must be absorbed into the existing budget, as the government has not set out special provisions to fund EAL learners. Enrolment growth is not funded until the following school year.

“If there’s a need out there, we’ve got to meet the need, so we have to fund it,” said Garry Benning, chief financial officer for Saskatoon Public Schools.

Education Minister Donna Harpauer said she recognizes the “upcoming pressure” on schools to provide this type of programming but said the Ministry of Advanced Education, Employment and Immigration has been working on creating supports for those students who come to the province in need of intensive language training.

Despite the challenges they face, the students say they are happy to be here.

“They had the power, the teachers, to beat students up,” said Mahmoodpour, who said when he was allowed to go to school in Turkey, teachers were strict and would beat their students. Adam also would receive beatings if she was late for school and as an Eritrean refugee in Sudan, she was forced to pay double what other students paid to attend.

“In Canada, it’s really good for education,” said Mahmoodpour, the others nodding in agreement



Tuesday, December 28, 2010

VISITOR VISA REFUSAL NOT SURPRISING

This story appeared today. I am not sure why it is considered newsworthy, as it is a too common. Visitor visas are granted based on a variety of factors, including establishment in the country of residency, likelihood of return, employment commitments, family ties, savings to allow a person to support herself, etc. Applications need to be complete and thorough, and preferably handled by experienced lawyers who understand what the standards that need to be met are.


Frustration sparked by Salvadoran's visa rejection Calgary & Alberta News Calgary Sun

Thursday, December 23, 2010

COURT RAISES SENTENCE ON REFUGEE

Excellent judgement by Saskatchewan court, it makes perfect sense and contains a good summary of the law.  The better question, however, is why a person who has demonstrated violent tendencies and has already been the subject of criminal prosecution several times, continues to be under the radar of CBSA. Refugee status should not be used as carte blanche to commit crimes, and the principle of equality before the law should be respected: citizens and non-citizens should be subject to the same, predictable punishment for the same offence.

R. v. Nistor


Between

Her Majesty the Queen, Appellant, and

Daniel Nistor, Respondent

[2009] S.J. No. 744

2009 SKQB 464

347 Sask.R. 36

259 C.C.C. (3d) 436

Docket: Q.B.C.A. No. 13 of 2009



Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon



M.D. Acton J.



November 30, 2009.

(43 paras.)

________________________________________



JUDGMENT

1 M.D. ACTON J.:-- This is a sentencing appeal by the Crown from a decision of the Provincial Court of Saskatchewan of March 4, 2009 at which time the respondent was sentenced to three consecutive six-month conditional discharges based on a conviction of November 14, 2008 on three counts of assault contrary to s. 266 of the Criminal Code of Canada. The respondent has served eight of the eighteen months of the conditional sentence.

2 The respondent is a Romanian gypsy who is currently in Canada on refugee status.

3 The three sentences being appealed relate to an incident involving an assault by acts of personal violence toward three separate victims: one being the former partner of the respondent and the mother of his child, another woman who was a neighbour, and the neighbour's teenage son.

4 The respondent had previously received the benefit of conditional discharges on two prior offences, one, February 26, 2007 in Saskatoon, Saskatchewan, for theft under $5,000 contrary to s. 334(b) of the Criminal Code, and one February 25, 2008 at Calgary, Alberta for theft under $5,000 contrary to s. 234(b) of the Criminal Code. At the time of the trial respecting the three assault charges the respondent had two outstanding charges for breach of conditions on the previous conditional sentences but these have not yet been dealt with by the Court. He subsequently pleaded guilty to the breaches under a joint submission resulting in a further conditional sentence.

5 The appellant submits that the trial judge erred in granting the respondent a conditional discharge following his conviction, on three counts of common assault. The appellant argues that a discharge should not be granted where it would otherwise clearly not be mandated. The mere fact that the immigration authorities might not be sympathetic to a convicted accused's situation should not affect the appropriate sentence imposed. In addition, the appellant argues that in deciding whether or not a discharge should be granted, the Court may consider whether the accused had been granted a discharge on previous occasions.

6 The appellant argues that given the serious nature of the charges, together with the respondent's criminal history, a conditional discharge was not in the range of sentence appropriate for such an offence, nor is it in the public interest to grant the respondent a third, fourth and fifth conditional discharge.

7 The appellant recommends that the Court impose fines followed by probation on each count or in the alternative a suspended sentence with probation and community service in lieu of fines rather than conditional discharges.

8 The respondent argues that the general principles of sentence appeals mandate a significant deference to the sentencing judge. He states that the trial judge was allowed to consider the respondent's immigration status as a refugee in making his decision. Further, the respondent argues that the trial judge was aware of and considered all the relevant factors in determining an appropriate sentence which has not been demonstrated to be unfit or fall outside the reasonable range of sentences for common assault pursuant to s. 266 of the Criminal Code.

THE LAW

9 The purpose and principles of sentencing are set out in s. 718 of the Criminal Code:



• 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:



• (a)

to denounce unlawful conduct;

• (b)

to deter the offender and other persons from committing offences;

• (c)

to separate offenders from society, where necessary;

• (d)

to assist in rehabilitating offenders;

• (e)

to provide reparations for harm done to victims or to the community; and

• (f)

to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

10 Section 718.2 sets forth other sentencing principles. The portions relevant in the current situation are:



• 718.2 A court that imposes a sentence shall also take into consideration the following principles:



• (a)

a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,



• ...



• (ii)

evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

• (ii.1)

evidence that the offender, in committing the offence, abused a person under the age of eighteen years, ...



• shall be deemed to be aggravating circumstances;



• (b)

a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• (c)

where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

• (d)

an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

...

11 Section 718.01 of the Criminal Code is particularly relevant with respect to the offence against the neighbour's teenage son which section states:



• Objectives - offences against children - When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

The court must also consider s. 718.1 of the Criminal Code which states:



• Fundamental principle - A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

12 As well, when imposing a conditional sentence s. 742.1 of the Criminal Code is relevant and states:



• 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3.

13 The compulsory conditions of a conditional sentence, set out in s. 742.3(1) are as follows:



• 742.3(1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:



• (a)

keep the peace and be of good behaviour;

• (b)

appear before the court when required to do so by the court;

• (c)

report to a supervisor



• (i)

within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and

• (ii)

thereafter, when required by the supervisor and in the manner directed by the supervisor;



• (d)

remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and

• (e)

notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

14 Guidance in the application of these provisions of the Criminal Code are provided by the Supreme Court of Canada in R. v. Proulx, [2000] 1 S.C.R. 61 and by the Saskatchewan Court of Appeal in R. v. Laliberte (M.R.), 2000 SKCA 27, 189 Sask. R. 190 and by the decisions cited therein.

15 The Supreme Court in R. v. Proulx, supra, summarizes the law respecting sentencing appeals as follows (at page 65):



• Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

16 Respecting elements favouring a conditional sentence the Court stated at para. 122:



• ... Therefore, it would be in the offender's best interests to establish those elements militating in favour of a conditional sentence. ... For instance, the offender should inform the judge of his or her remorse, willingness to repair and acknowledgment of responsibility, and propose a plan of rehabilitation. The offender could also convince the judge that he or she would not endanger the safety of the community if appropriate conditions were imposed. ...

17 The Supreme Court goes on further to state at para. 125:



• Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying interference. Further, minor errors in the sequence of application of s. 742.1 may not warrant intervention by appellate courts. Again, I stress that appellate courts should not second-guess sentencing judges unless the sentence imposed is demonstrably unfit.

18 The Saskatchewan Court of Appeal in R. v. Laliberte, supra, considering conditional sentences, considerations in imposing sentences, the powers of an appeal court in variation of sentences and the effect of the decision of the Supreme Court of Canada in R. v. Proulx, supra, and the effect of ss. 718 to 718.2 on the purposes and principles of sentencing wherein the Court states at paras. 73 and 74:



• [73] In C.A.M. [[1996] 1 S.C.R. 500], Chief Justice Lamer, while acknowledging the important function appellate courts serve in reviewing and minimizing the disparity of sentences, cautioned courts of appeal to exercise a margin of deference before intervening in the "specialized discretion that Parliament has explicitly vested in sentencing judges" ... Appellate courts should only interfere where there has been a substantial and marked departure from sentences customarily imposed for similar offences. Courts of appeal should not be quick to use a so called disparity to interfere with sentences imposed by trial judges. To do so runs contrary to the role of appellate courts.



• [74] ... consider all available sanctions other than imprisonment that are reasonable in the circumstances. Those new statutory provisions coupled with the new conditional sentence of imprisonment created by s. 742.1, which the Supreme Court recognized in Gladue [1999] 1 S.C.R. 688] as creating a new sentencing regime, expand the principles and parameters of sentencing. They require appellate courts to re-examine the appropriateness of sentences imposed prior to September 3, 1996, including where the sentences are served, and the ranges created for such offences. This is necessary for the purpose of determining whether there is disparity in sentences imposed subsequent to September 3, 1996, pursuant to Part XXIII.

19 As the appeal before the Court considers the effect of the respondent's status as a refugee the Court must also consider the effect of s. 64 of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27 ("IRPA"), which states:



• 64.(1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.



• (2)

For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.

20 This section of the IRPA strips a refugee of his right to appeal to the Immigration Appeal Division when he has been convicted of a criminal offence and punished for a term of at least two years. Although the court does not presently have jurisdiction to deal with the immigration matter, the fact that the respondent may inevitably lose his right to appeal a decision of the Immigration Appeal Division is one that should be considered when imposing a just sentence.

21 A number of decisions have considered s. 64 of the IRPA in the context of criminal sentencing. The common view is that an unduly tough sentence should not be imposed where the effect of the sentence produces "unintended collateral consequences". In R. v. Leila, 2008 BCCA 8, [2008] B.C.J. No. 30 (QL), the Court of Appeal reversed the sentence of the accused and imposed a sentence of two years less one day. At para. 23, the Court stated:



• I agree with appellant's counsel that the loss of the appellant's immigration appeal rights is a disproportionately severe collateral sanction, which was unforeseen by the appellant and his counsel at the sentencing hearing and apparently unintended by the sentencing judge. In the circumstances of this case, reducing the appellant's sentence to one which will allow him to preserve his immigration appeal rights is inconsequential to the sentence principles relied upon by the sentencing judge.

22 The avoidance of "unintended collateral consequences" has also been considered by the Saskatchewan Court of Appeal, in R. v. Almajidi, 2008 SKCA 56, 310 Sask. R. 142, a decision that cited Leila with approval.

23 It is admitted by counsel for the respondent that the result of the conviction will not result in automatic deportation. As noted in R. v. Kanthasamy, 2005 BCCA 135, 195 C.C.C. (3d) 182, the immigration consequences can be a relevant consideration in sentencing. Donald J.A., for the Court, stated:



• [14] The question of fitness in this case relates not to the quantum of the sentence, in the ordinary sense, but to a serious but unintended collateral effect of the penalty. The matter of a single day, two years rather than two years less a day, is inconsequential in terms of denunciation, retribution and deterrence, although it determines the availability of a probationary order and it also designates which corrections system, Federal or Provincial, is engaged.



• [15] But, in relation to the appellant's immigration status and his personal safety, the difference of one day carries potentially enormous consequences. ...

24 In Kanthasamy, the Court cited R. v. Hamilton and Mason (2004), 186 C.C.C. (3d) 129 (Ont. C.A.) as standing for the principle that the sentencing process should not be used to circumvent the IRPA, nor should the IRPA be used to defeat the applicable goals of sentencing. At para. 156 of Hamilton:



• The case law referable to the relevance of deportation in fixing an appropriate sentence addresses two very different situations. In the first situation, it is acknowledged that imprisonment is the only appropriate sentence and that deportation from Canada will inevitably follow upon completion of the sentence. In the second situation, it is argued that a certain kind of sentence should be imposed to avoid the risk of deportation from Canada. In the first situation, the certainty of deportation may justify some reduction in the term of imprisonment for purely pragmatic reasons: R. v. Critton, [2002] O.J. No. 2594 (S.C.J.) (QL) ..., at paras. 77-86. In the second situation, the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Protection Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender: ...

25 Imposing a sentence of less than two years will not deny the respondent's right of appeal. Nor will it prevent the Immigration Appeal Division from considering whether the respondent would be inadmissible, pursuant to s. 36 of the IRPA.

26 In the circumstances of this case the respondent's right to appeal will not be significantly affected by the imposition of a more severe sentence, provided the sentence is less than two years of incarceration.

27 The appellate division of the Alberta Supreme Court in R. v. Fung (1973), 11 C.C.C. (2d) 195 at 196 stated:



• ... The appellant is in Canada not as of right but as a privilege. We do not think the section should be applied in order to influence the immigration authorities; in fact to the contrary, we think the immigration authorities are entitled to know that the appellant has committed the offence and to take such into consideration in coming to a decision whether the appellant should be allowed to remain in Canada.

The Court declined to substitute a conditional discharge for the conviction of an individual from Hong Kong in Canada on a student visa.

28 This view is repeated in R. v. Melo (1975), 26 C.C.C. (2d) 510 (Ont. C.A.), wherein the Court states at para. 22:



• ... The case is clearly one in which, apart from immigration considerations, not even a conditional discharge should have been granted. Accordingly, in keeping with the principles I have earlier stated, the fact of imminent jeopardy with the immigration authorities ought not to lead to the granting of a discharge in this case.

29 As stated in R. v. Mendoza (1993), 135 A.R. 395 (C.A.), at para. 3:



• We agree with the Ontario Court of Appeal in The Queen v. Melo (1975), 26 C.C.C. (2d) 510, that the fact that an accused person's immigration status will be adversely affected does not in itself justify the granting of a discharge; nor will the granting of a discharge ensure that the appellant will not face deportation. ...

30 It is also noted in R. v. Tan, [1975] 2 W.W.R. 747, the British Columbia Court of Appeal stated at page 751:



• These facts [that the accused had received a previous conditional discharge] were being introduced in this case, not to form the basis of a request for greater punishment, but rather to satisfy the Court that the Court should not form the consideration referred to in s. 662.1(1) [Criminal Code] and thus make a direction for another conditional or absolute discharge and for the second time absolve the appellant from punishment.



• This construction is in complete harmony with the objects which s. 662.1 seeks to achieve and it rejects the complete and total absurdity which would result otherwise.

31 McIntyre J.A. goes on further to state at page 751-52:



• ... In deciding whether to grant or withhold a discharge under the provisions of the Criminal Code, R.S.C. 1970, c. C-34, s. 662.1 [en. 1972, c. 13, s. 57], the sentencing judge must consider both the interest of the accused and that of the public. In the second consideration the question of whether the accused person has had a previous discharge and the manner of his or her reaction to it is certainly both by logic and common sense a relevant factor to be known and considered by the judge. This information may, indeed must, be put before the judge so that he can discharge his task in considering the fundamental conditions under which a discharge may be given.



• No question of a past conviction is involved. In dealing with the matter the trial judge is merely weighing a factor relevant to the disposition of the case. ...

32 The respondent has referred the Court to a number of cases involving the consideration of a conviction on the accused's ability to state his case under the Immigration Act including possible deportation. Most of the cases referred to were minor shoplifting cases and all of the cases appear to be first-time offences with no prior criminal record even R. v. Boyle (1990), 100 N.S.R. (2d) 39 (T.D.), where the accused was found guilty of causing bodily harm.

33 In the case before the Court it is noted that the respondent did not plead guilty to his offences, failed to express any remorse for his actions, continued to deny the allegations of assault throughout the trial and inflicted an assault with violence upon a domestic partner as well as an individual under the age of 18 years.

34 The trial judge in making his decision stated at page 262 of the transcript, at line 5:



• ... the only issue is whether he gets it by way of a suspended sentence, probation or -- or a conditional discharge.



• Ordinarily I'm not inclined to give conditional discharges on assaults, especially when the assault involves a -- a family member, a partner. And the reason for that is not -- not because of any particular reasons that I feel, but it's what Parliament has said, and Parliament has said that I have to treat them more seriously than an ordinary assault. And in this case having heard the trial, the facts are not minimal either when I look at all of the things that happened that -- that particular evening.



• I am mindful of -- however, of the immigration issues here, and of the -- what might be in the best interests of the accused, but only be if it was not contrary to the public interest that I would not grant a conditional discharge. ...

35 The trial judge states further on page 267, lines 5-16:



• Mr. Nistor, I'm very cognizant of the fact that -- that had I done -- that if -- if you breach any of these conditions and lose out on the benefit of conditional sentence then you may very well be deported. And if you are, I'm trying to avoid that because as I told the Crown, I want the punishment to fit the crime here. But had it not been for the special situation you're in as a refugee in Canada, I would have considered a suspended sentence here and you would have a criminal record arising out of this, so you'll have to govern yourself accordingly. ...

36 As stated by the Supreme Court of Canada, the court must consider what is in the best interest of the accused but only to the extent it is not contrary to the public interest combined with the principle that absent as stated in R. v. M. (C.A.), supra, at para. 90, "[p]ut simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit" [my emphasis].

37 In the current appeal, the Court does find there was an "overemphasis of the appropriate factors" as it relates to the respondent's refugee status while giving inordinately little weight to the principles of denunciation and general deterrence with the imposition of three further conditional sentences.

38 For the respondent to face a possible immigration hearing to justify why he should be allowed to remain in Canada would hopefully "promote a sense of responsibility" in the respondent and encourage an "acknowledgment of the harm done to victims and to the community" (s. 718 of the Criminal Code). This is a far more significant denunciation of the actions of the respondent than five consecutive conditional discharges within slightly more than two years.

39 Had this been the first offence and first conditional discharge requested by the respondent this decision may have been different. However it is contrary to the public interest and would bring the administration of justice into disrepute to have successive conditional discharges considered appropriate because the accused claims refugee status. In arriving at this decision the Court has considered in particular s. 718 of the Criminal Code with respect to denunciation, deterrence and promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims and to the community as well as the principles set forth in s. 718.2 with particular reference to ss. (2.1) and (b) as well as the quotation of Professor Mason in R. v. Laliberte, supra, at para. 36:



• [36] Professor Manson puts it this way in Finding a Place for Conditional Sentences ...



• "... Our Supreme Court, recently distinguished between retribution and denunciation:



• 'The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct ... in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.'



• ...



• "Regardless of how one explains denunciation, it is an expressive goal. Denunciation signifies a communal message about the gravity of the offence in general or the gravity of a particular offence as shaped by a characteristic of the offender. The goal of the expressive message is to promote fundamental values. It may only remind us of how we condemn certain conduct ...".

[emphasis in original]

40 The Court stated further at para. 71:



• Section 718.2(b) of the Code provides: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This implies there must not be an unjustifiable disparity in sentences between sentences imposed for similar offences and similar offenders. ...

41 The principles of denunciation and deterrence are of paramount significance in cases involving domestic violence (s. 718.2(a)(ii) of the Criminal Code). As stated by the Ontario Court of Appeal in R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.), the Court states at para. 27:



• ... this court has repeatedly emphasized that the principles of denunciation and deterrence are of paramount importance in cases involving domestic violence ... In Denkers, [1994] O.J. No. 660, in particular, this court indicated that the sentences imposed in cases involving domestic violence must be such that they will foster an environment in which individuals can feel free to leave romantic relationships without fear of harassment or harm, and without fear of violence aimed at forcing a return to a no longer wanted relationship: ...

42 To grant five conditional discharges successively to one accused on three occasions in less than a two-year period when such a large number of conditional discharges would not be granted to other individuals for similar offences is not in compliance with s. 718.2(b) of the Criminal Code.

43 For the reasons set forth above the Court does find the original sentence demonstratively unfit and the appeal is allowed. The three consecutive conditional discharges are replaced with one global suspended sentence of 18 months probation upon the same conditions as set forth by the trial judge in the original sentence.

M.D. ACTON J.

DISPUTE OVER PARTNER EDUCATION RESULTS IN VISA DENIAL

This recently reported case arose as a result of a dispute over how many points should b allocated to an applicant in the Federal Skilled Worker category under the heading of "Adaptability" for a partner's education.  There is very little litigation in the subject, and the court ruled against the applicant based on the evidence considered by the visa officer. Applicants should bear in mind that immigration applications are not as simple as they may seem, and they should retain lawyers to deal with the fine points of the legislation.


De Guzman v. Canada (Minister of Citizenship and Immigration)
Between

Emelita De Guzman, Applicant, and

The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 1467

2010 FC 1113



Docket IMM-494-10



Federal Court

Toronto, Ontario



Pinard J.



Heard: October 12, 2010.

Judgment: November 17, 2010.

(23 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT

1 PINARD J.:-- This is an application for judicial review of a decision of the First Secretary, Immigration, of the Canadian Embassy in Makati City, Philippines, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, by Emelita De Guzman (the "applicant"). The officer rejected the applicant's application for permanent residence under the Federal Skilled Worker class on the basis that she did not receive the required number of points under the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").

2 The applicant is a citizen of the Philippines. She is the primary applicant in this application for permanent residence, and lists her husband and her three sons as dependents.

3 The applicant has a Bachelor of Sciences in Nursing, as well as an additional diploma in Nursing, and has worked as a registered nurse since 1991. Her husband, in addition to completing secondary schooling, has a one-year diploma in automotive mechanics. Her husband attended other post-secondary institutions for a total of three years, but did not complete any diploma or certificate. Her husband has two sisters who live in Canada and are Canadian citizens.

4 The applicant filed her application for permanent residence under the Federal Skilled Worker class in July 2004, at which time she submitted all relevant documents regarding her education and that of her husband, as well as regarding the family members in Canada. In April 2009, the Embassy requested updated information regarding these issues. The applicant provided copies of this information, which had not changed since 2004.

5 The applicant submitted in her application that she should receive 67 points according to the Regulations, including 22 points in the category of Education, and 8 points in the category of Adaptability, on the basis of her family in Canada and her spouse's education.

6 The officer awarded the applicant a total of 62 points, and determined that this total was insufficient to satisfy the officer that the applicant would be able to become economically established in Canada, as the minimum requirement for admission is 67 points.

7 The officer awarded 20 points, not 22, in the Education category (the respondent concedes that 22 points, not 20, should have been awarded to the applicant on the basis of her education, and that the officer erred with respect to this category. However, the respondent notes that this only brings the applicant's total points to 64).

8 The officer awarded 5 points, not 8, in the Adaptability category.

9 The relevant portion of the Regulations is as follows:



• Definitions



• 78.

(1) The definitions in this subsection apply in this section.



• "full-time"



• "full-time" means, in relation to a program of study leading to an educational credential, at least 15 hours of instruction per week during the academic year, including any period of training in the workplace that forms part of the course of instruction.



• "full-time equivalent"



• "full-time equivalent" means, in respect of part-time or accelerated studies, the period that would have been required to complete those studies on a full-time basis.



• Education (25 points)



• 78.

(2) A maximum of 25 points shall be awarded for a skilled worker's education as follows:



• (a) 5 points for a secondary school educational credential;



• (b) 12 points for a one-year post-secondary educational credential, other than a university educational credential, and a total of at least 12 years of completed full-time or full-time equivalent studies;



• (c) 15 points for



• (i)

a one-year post-secondary educational credential, other than a university educational credential, and a total of at least 13 years of completed full-time or full-time equivalent studies, or

• (ii)

a one-year university educational credential at the bachelor's level and a total of at least 13 years of completed full-time or full-time equivalent studies;



• (d) 20 points for



• (i)

a two-year post-secondary educational credential, other than a university educational credential, and a total of at least 14 years of completed full-time or full-time equivalent studies, or

• (ii)

a two-year university educational credential at the bachelor's level and a total of at least 14 years of completed full-time or full-time equivalent studies;



• (e) 22 points for



• (i)

a three-year post-secondary educational credential, other than a university educational credential, and a total of at least 15 years of completed full-time or full-time equivalent studies, or

• (ii)

two or more university educational credentials at the bachelor's level and a total of at least 15 years of completed full-time or full-time equivalent studies; and



• (f) 25 points for a university educational credential at the master's or doctoral level and a total of at least 17 years of completed full-time or full-time equivalent studies.

Multiple educational achievements



• (3)

For the purposes of subsection (2), points



• (a) shall not be awarded cumulatively on the basis of more than one single educational credential; and



• (b) shall be awarded



• (i)

for the purposes of paragraphs (2)(a) to (d), subparagraph (2)(e)(i) and paragraph (2)(f), on the basis of the single educational credential that results in the highest number of points, and

• (ii)

for the purposes of subparagraph (2)(e)(ii), on the basis of the combined educational credentials referred to in that paragraph.



• Special circumstances



• (4)

For the purposes of subsection (2), if a skilled worker has an educational credential referred to in paragraph (2)(b), subparagraph (2)(c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) or paragraph (2)(f), but not the total number of years of full-time or full-time equivalent studies required by that paragraph or subparagraph, the skilled worker shall be awarded the same number of points as the number of years of completed full-time or full-time equivalent studies set out in the paragraph or subparagraph.

[...]

Adaptability (10 points)



• 83.

(1) A maximum of 10 points for adaptability shall be awarded to a skilled worker on the basis of any combination of the following elements:



• (a) for the educational credentials of the skilled worker's accompanying spouse or accompanying common-law partner, 3, 4 or 5 points determined in accordance with subsection (2);



• (b) for any previous period of study in Canada by the skilled worker or the skilled worker's spouse or common-law partner, 5 points;



• (c) for any previous period of work in Canada by the skilled worker or the skilled worker's spouse or common-law partner, 5 points;



• (d) for being related to a person living in Canada who is described in subsection (5), 5 points; and



• (e) for being awarded points for arranged employment in Canada under subsection 82(2), 5 points.



• Educational credentials of spouse or common-law partner



• (2)

For the purposes of paragraph (1)(a), an officer shall evaluate the educational credentials of a skilled worker's accompanying spouse or accompanying common-law partner as if the spouse or common-law partner were a skilled worker, and shall award points to the skilled worker as follows:



• (a) for a spouse or common-law partner who would be awarded 25 points, 5 points;



• (b) for a spouse or common-law partner who would be awarded 20 or 22 points, 4 points; and



• (c) for a spouse or common-law partner who would be awarded 12 or 15 points, 3 points.



• Family relationships in Canada



• (5)

For the purposes of paragraph (1)(d), a skilled worker shall be awarded 5 points if



• (a) the skilled worker or the skilled worker's accompanying spouse or accompanying common-law partner is related by blood, marriage, common-law partnership or adoption to a person who is a Canadian citizen or permanent resident living in Canada and who is



• [...]



• (v)

a child of their father or mother,



• [...]

* * *



• Définitions



• 78.

(1) Les définitions qui suivent s'appliquent au présent article.



• "équivalent temps plein"



• "équivalent temps plein" Par rapport à tel nombre d'années d'études à temps plein, le nombre d'années d'études à temps partiel ou d'études accélérées qui auraient été nécessaires pour compléter des études équivalentes.



• "temps plein"



• "temps plein" À l'égard d'un programme d'études qui conduit à l'obtention d'un diplôme, correspond à quinze heures de cours par semaine pendant l'année scolaire, et comprend toute période de formation donnée en milieu de travail et faisant partie du programme.



• Études (25 points)



• 78.

(2) Un maximum de 25 points d'appré-ciation sont attribués pour les études du travailleur qualifié selon la grille suivante :



• a) 5 points, s'il a obtenu un diplôme d'études secondaires;



• b) 12 points, s'il a obtenu un diplôme postsecondaire - autre qu'un diplôme universitaire - nécessitant une année d'études et a accumulé un total d'au moins douze années d'études à temps plein complètes ou l'équivalent temps plein;



• c)

15 points, si, selon le cas :



• (i)

il a obtenu un diplôme postsecondaire - autre qu'un diplôme universitaire - nécessitant une année d'études et a accumulé un total de treize années d'études à temps plein complètes ou l'équivalent temps plein,

• (ii)

il a obtenu un diplôme universitaire de premier cycle nécessitant une année d'études et a accumulé un total d'au moins treize années d'études à temps plein complètes ou l'équivalent temps plein;

• d)

20 points, si, selon le cas :



• (i)

il a obtenu un diplôme postsecondaire - autre qu'un diplôme universitaire - nécessitant deux années d'études et a accumulé un total de quatorze années d'études à temps plein complètes ou l'équivalent temps plein,

• (ii)

il a obtenu un diplôme universitaire de premier cycle nécessitant deux années d'études et a accumulé un total d'au moins quatorze années d'études à temps plein complètes ou l'équivalent temps plein;

• e)

22 points, si, selon le cas :



• (i)

il a obtenu un diplôme postsecondaire - autre qu'un diplôme universitaire - nécessitant trois années d'études à temps plein et a accumulé un total de quinze années d'études à temps plein complètes ou l'équivalent temps plein,

• (ii)

il a obtenu au moins deux diplômes universitaires de premier cycle et a accumulé un total d'au moins quinze années d'études à temps plein complètes ou l'équivalent temps plein;



• f) 25 points, s'il a obtenu un diplôme universitaire de deuxième ou de troisième cycle et a accumulé un total d'au moins dix-sept années d'études à temps plein complètes ou l'équivalent temps plein.



• Résultats



• (3)

Pour l'application du paragraphe (2), les points sont accumulés de la façon suivante :



• a) ils ne peuvent être additionnés les uns aux autres du fait que le travailleur qualifié possède plus d'un diplôme;



• b)

ils sont attribués :



• (i)

pour l'application des alinéas (2)a) à d), du sous-alinéa (2)e)(i) et de l'alinéa (2)f), en fonction du diplôme qui procure le plus de points selon la grille,

• (ii)

pour l'application du sous-alinéa (2)e)(ii), en fonction de l'ensemble des diplômes visés à ce sous-alinéa.



• Circonstances spéciales



• (4)

Pour l'application du paragraphe (2), si le travailleur qualifié est titulaire d'un diplôme visé à l'un des alinéas (2)b), des sous-alinéas (2)c)(i) et (ii), (2)d)(i) et (ii) et (2)e)(i) et (ii) ou à l'alinéa (2)f) mais n'a pas accumulé le nombre d'années d'études à temps plein ou l'équivalent temps plein exigé par l'un de ces alinéas ou sous-alinéas, il obtient le nombre de points correspondant au nombre d'années d'études à temps plein - ou leur équivalent temps plein - mentionné dans ces dispositions.

[...]

Capacité d'adaptation (10 points)



• 83.

(1) Un maximum de 10 points d'appréciation sont attribués au travailleur qualifié au titre de la capacité d'adaptation pour toute combinaison des éléments ci-après, selon le nombre indiqué :



• a) pour les diplômes de l'époux ou du conjoint de fait, 3, 4 ou 5 points conformément au paragraphe (2);



• b) pour des études antérieures faites par le travailleur qualifié ou son époux ou conjoint de fait au Canada, 5 points;



• c) pour du travail antérieur effectué par le travailleur qualifié ou son époux ou conjoint de fait au Canada, 5 points;



• d) pour la présence au Canada de l'une ou l'autre des personnes visées au paragraphe (5), 5 points;



• e) pour avoir obtenu des points pour un emploi réservé au Canada en vertu du paragraphe 82(2), 5 points.



• Études de l'époux ou du conjoint de fait



• (2)

Pour l'application de l'alinéa (1)a), l'agent évalue les diplômes de l'époux ou du conjoint de fait qui accompagne le travailleur qualifié comme s'il s'agissait du travailleur qualifié et lui attribue des points selon la grille suivante :



• a) dans le cas où l'époux ou le conjoint de fait obtiendrait 25 points, 5 points;



• b) dans le cas où l'époux ou le conjoint de fait obtiendrait 20 ou 22 points, 4 points;



• c) dans le cas où l'époux ou le conjoint de fait obtiendrait 12 ou 15 points, 3 points.



• Parenté au Canada



• (5)

Pour l'application de l'alinéa (1)d), le travailleur qualifié obtient 5 points dans les cas suivants :



• a) l'une des personnes ci-après qui est un citoyen canadien ou un résident permanent et qui vit au Canada lui est unie par les liens du sang ou de l'adoption ou par mariage ou union de fait ou, dans le cas où il l'accompagne, est ainsi unie à son époux ou conjoint de fait :



• [...]



• (v)

un enfant de l'un de leurs parents,



• [...]

10 At the hearing before me, counsel for both parties agreed to raise only one issue, namely: Did the officer err in law in failing to award eight points in the Adaptability category when the applicant has qualifying relatives living in Canada and the applicant's husband holds a 1-year diploma and a total of 15 years of education?

11 The respondent acknowledges that the applicant rightly received five points on the basis of her family members in Canada.

12 The applicant submits that she should have received three additional points in this category on the basis of her husband's education. Both sides are in agreement as to the method of calculating the points awarded for a spouse's education under the Adaptability category. According to section 83 of the Regulations, the officer calculates the number of points the spouse would have received for his or her education under section 78 of the Regulations if the spouse had been the primary applicant. A corresponding number of points is then awarded to the primary applicant under section 83 on the basis of this calculation.

13 The parties disagree on the calculation of the husband's years of education. The applicant submits that the husband has a total of 15 years of education, including the one-year diploma in automotive mechanics. According to the Regulations, if he were the primary applicant, under subparagraph 78(2)(c)(i), he would be awarded 15 points. Therefore, per paragraph 83(2)(c), the applicant would receive three points for her husband's education.

14 The respondent argues that the husband does not have 15 years of education. On the applicant's application forms (page 85 of the Tribunal Record), the husband is shown to have completed 10 years of elementary and secondary schooling. He also completed a one-year diploma in automotive mechanics. However, the respondent notes that the husband's two years at Far Eastern University (1974-1976) and his one year at University of Manila (1976-1977) did not result in completed studies, and that therefore these years do not count towards his total years of education and are not relevant to this application. I agree.

15 Subsection 78(1) of the Regulations defines "full-time studies" as being "in relation to a program of study leading to an educational credential"; the corresponding French version is more precise: "À l'égard d'un programme d'études qui conduit à l'obtention d'un diplôme". As the husband in the present case did not obtain an educational credential from these years of study, namely 1974-1976 and 1976-1977, they should not be considered.

16 In Roberts v. Minister of Citizenship and Immigration, 2009 FC 518, Justice Max M. Teitelbaum stated:



• [18] Even if it had been before the Officer, the extra year of A Level study would not be relevant to the assessment of education credentials. In Bhuiya v. Canada (Minister of Citizenship and Immigration), 2008 FC 878, [2008] F.C.J. No. 1110, Justice Anne Mactavish explained that "the years of education requirement is clearly intended to establish minimum standards for each type of degree" and the fact that an applicant may have spent one additional year in school after obtaining their degree "does not turn a 16 year Master's degree into a 17 year Master's degree". That same logic applies here: the fact that the Applicant spent an extra year in school after obtaining her O Levels does not turn an 11-year diploma into a 12-year one.

(See also MD. Ali Khan v. The Minister of Citizenship and Immigration, 2010 FC 983, and MD. Khairul Kabir v. The Minister of Citizenship and Immigration, 2010 FC 995.)

17 For the reasons set out above, this application for judicial review is dismissed.

18 The applicant has suggested the following question for certification:



• In assessing the points for education under section 78 of the Immigration and Refugee Protection Regulations, does the visa office award points for years of full-time or full-time equivalent studies that did not result in the issuance of an academic credential and were not part of the progression towards the highest academic credential?

19 The question is whether the question is a "serious question of general importance" as required by paragraph 74(d) of the Immigration and Refugee Protection Act. The respondent argues that it is not, as the Regulations answer the question, in that the definition of "full-time [education]" set out in subsection 78(1) qualifies it as being "in relation to a program of study leading to an educational credential". In French, "temps plein" is defined as being "[à] l'égard d'un programme d'études qui conduit à l'obtention d'un diplôme".

20 The respondent further notes that subparagraph 78(3)(b)(i) specifies that points will be awarded "on the basis of the single educational credential that results in the highest number of points", and argues that when read together with the definition of "full-time", it is clear that Parliament's intention was that years of study that did not lead to an educational credential were not to be counted. The focus in subparagraph 78(3)(b)(i) on the educational credential itself makes this clear.

21 I am convinced by the respondent's argument. The applicant cites several cases that she says demonstrate divergence in the jurisprudence on this point. However, McLachlan v. Minister of Citizenship and Immigration, 2009 FC 975, dealt with the interpretation of subsection 78(4), which was not raised in this case, and the two recent cases decided by Madam Justice Elizabeth Heneghan, Khan v. Minister of Citizenship and Immigration, 2010 FC 983, and Kabir v. Minister of Citizenship and Immigration, 2010 FC 995, dealt with situations in which the applicants were attempting to count the years from two Masters degrees. In all of these cases, the years of education, whether in excess of the norm or not, led to an educational credential. The applicant did not point to any cases where the years of education did not lead to any educational credential.

22 As the applicant has not identified any diverging jurisprudence on the issue, and the definitions in the Regulations appear to provide the answer, the applicant's question does not meet the threshold of a "serious question of general importance".

23 No question is certified.

JUDGMENT

The application for judicial review of a decision of the First Secretary, Immigration, of the Canadian Embassy in Makati City, Philippines, rejecting the applicant's application for permanent residence under the Federal Skilled Worker class, is dismissed.

PINARD J.

SECOND SPONSORSHIP TRIGGERS MISREPRESENTATION REPORT

The situation below is all too common, with one party who was sponsored under the Family Class as a spouse, then divorces and attempts to sponsor a second spouse, raising suspicions from CBSA and resulting in a report for misrepresentation of the initial entry to Canada, and eventual deportation order.

Applicants are advised to consult competent legal immigration counsel before engaging in any course of action that may result in suspect conduct.


Gill v. Canada (Minister of Citizenship and Immigration)




Between

Sukhninder Singh Gill, Applicant, and

The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 1470

2010 FC 1116



Docket IMM-174-10



Federal Court

Toronto, Ontario



Pinard J.



Heard: October 14, 2010.

Judgment: November 17, 2010.

(17 paras.)
________________________________________



REASONS FOR JUDGMENT AND JUDGMENT

1 PINARD J.:-- This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD"), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the "Act") by Sukhninder Singh Gill (the "applicant"). The IAD issued a removal order for the applicant on December 21, 2009, after hearing an appeal from a decision of the Immigration Division. The IAD found, as had the Immigration Division, that the applicant had made a material misrepresentation in his application for permanent residence under the family class, as his marriage to his sponsor was a marriage of convenience. The IAD also found that there were not sufficient humanitarian and compassionate grounds to warrant special relief for the applicant.

2 The applicant is a citizen of India. His parents and two sisters are permanent residents of Canada, having been sponsored in 1998 by his elder sister. The applicant was not sponsored at that time because he was over the age limit, and was not a full-time student.

3 The applicant's first wife, Kulwinder Kaur, was either a permanent resident or a citizen of Canada (it is not clear from the record) in 2000. She went to India and took part in an arranged marriage with the applicant; the marriage was arranged by relatives of each party. The marriage took place on February 9, 2000, and the applicant alleges that the couple cohabitated for a week and consummated the marriage. Kulwinder Kaur returned to Canada a week later, allegedly to complete her studies. She sponsored the applicant under the family class, and he arrived in Toronto on February 13, 2001.

4 The applicant alleges that upon his arrival, his wife informed him that she had a boyfriend in British Columbia, and that she no longer wished to be married to him. She left Toronto and returned to British Columbia on February 15, 2001. She filed for divorce, but the Statement of Claim was never served on the applicant, and he was not aware of the divorce proceedings until he received the divorce judgment, finalized on November 12, 2001. In the Statement of Claim for divorce, Kulwinder Kaur alleges a separation date of February 18, 2000, and states that the parties never cohabitated.

5 The applicant married an Indian citizen in 2004 and applied to sponsor her to Canada. As a result of this application and Canada Border Services Agency's subsequent investigation, he was reported for misrepresentation in his original application for permanent residence. When questioned, Kulwinder Kaur did not mention the boyfriend as the cause of the break-up, but stated the marriage broke down quickly because the applicant was very traditional and she was not. The applicant was the subject of a removal order dated July 30, 2008, which he appealed on August 20, 2008. Hearings were held on September 22, 2009 and November 26, 2009, and the decision of the IAD was rendered December 21, 2009.

6 As a preliminary matter, the IAD rejected the applicant's submission (made at the hearing) that as the impugned conduct pre-dated the Act, and was not the subject of a report under section 20 or section 27 of the former Immigration Act, R.S.C. 1985, c. 1, the present Act did not apply to the applicant, and no removal order could be made against him. The IAD found that there were no time limits on investigations, and that there was no need for an investigation to have been instituted under the former Act. The IAD found that the date on which the impugned conduct occurred was irrelevant for the purposes of starting an investigation.

7 Regarding the validity of the removal order, the IAD found that the inconsistency between the applicant's testimony and his wife's divorce application regarding the date of separation, and the inconsistency in their testimonies regarding the period of cohabitation were not, on their own, fatal to the applicant's case, but that in combination with the timing of the separation after the applicant's arrival in Canada and the minimal effort by the applicant to reconcile with his wife, these inconsistencies had greater importance. The IAD found that if the marriage were genuine, the applicant would have made a greater effort to reconcile with his wife than to make a few phone calls. The IAD found that even if the marriage were consummated in India, this was only one factor. The IAD found that neither testimony was credible. The IAD determined that the marriage was not genuine, and that this constituted a misrepresentation on a material fact regarding a relevant matter that induced an error in the administration of the Act, and that the applicant should not have been granted permanent residence.

8 On the matter of humanitarian and compassionate grounds, the IAD listed the factors to be applied as per Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, and noted that the factors were non-exhaustive and discretionary. The IAD found that the applicant's misrepresentation regarding his marriage was serious in nature, but that the applicant was well-established in his community in Canada. The IAD found that his mother was in poor health and would suffer some displacement were the applicant to be removed, but found that the applicant's sisters would be able to support the mother. It noted that the applicant's wife and child are in India, that the applicant has returned to India regularly for long periods since 2004, and that he is familiar with the video/music business there and could continue a line of work similar to what he does in Canada. The IAD considered the best interests of the applicant's son, but found that the child is established in India, and that there is no evidence that he would be better off in Canada; this was a neutral factor. On balance, the IAD concluded that the humanitarian and compassionate grounds were insufficient to allow the applicant to remain, especially given that his removal came about as a result of his own misrepresentation.



• A.

Timeliness of the investigation into the applicant's marriage

9 The applicant is reiterating his argument, made at the hearing and alluded to by the IAD in its decision, that as no report had been filed under section 27 of the former Immigration Act, pursuant to section 321 of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the "Regulations") the transition provisions do not apply to his case, and no report could have been issued against him. I do not agree. I find that the IAD's interpretation of the Act is correct; section 44 of the current Act does not state that the action leading to the alleged inadmissibility must have occurred subsequent to the coming in force of the new Act. In my opinion the transition provision in section 321 of the Regulations applies only to reports that were already in existence, and not to conduct that had not yet been discovered; otherwise any misrepresentation not discovered prior to the coming in force of the new Act would be immune from investigation.



• B.

Genuineness of the applicant's marriage

10 The applicant argues that as both he and his first wife had testified that the marriage was genuine, the IAD's finding was made without regard to the evidence before it, and constituted an erroneous finding of fact. The applicant alleges that the discrepancy in the date of separation between his testimony and the Statement of Claim for divorce came about because Kulwinder Kaur misrepresented the date in order to get a divorce more quickly than she would otherwise have been able to do. The applicant alleges that he was never able to correct this date as he did not receive any notice of the proceedings until the divorce judgment.

11 The respondent argues that while the applicant clearly disagrees with the IAD's conclusion, he has failed to demonstrate a reviewable error that could lead this Court to overturn the decision. The respondent notes that it was open to the IAD to find that together, the inconsistencies and implausibilities in the applicant's evidence were significant enough to lead to a conclusion of a marriage of convenience. I agree with the respondent on this point; the applicant's arguments merely repeat his contention that the marriage was genuine, but do not point to any reviewable error made by the IAD.

12 The applicant submitted a supplementary affidavit containing several additional exhibits intended to supplement his position regarding the genuineness of the marriage. I agree with the respondent that the applicant may not introduce new evidence upon judicial review in order to supplement the elements of his testimony that were disbelieved by the IAD. Cases such as Nejad v. Minister of Citizenship and Immigration, 2006 FC 1444, paragraphs 15 to 17, and Deol v. Minister of Citizenship and Immigration, 2009 FC 406, paragraphs 44 to 46, are clear on this point.



• C.

Humanitarian and compassionate grounds

13 The applicant argues that the IAD failed to reasonably consider the evidence presented in its decision that the humanitarian and compassionate grounds were insufficient to overcome the removal order. The applicant alleges that the IAD wrongly determined that his sisters would take care of his ailing mother, when the applicant is the sole provider for his mother. He argues that he would face hardship in India, as he has no immediate family there beyond his wife and son, and there is no guarantee that he will be able to find a job there in the video/music business and be able to support his family.

14 The respondent argues that it is "not the role of the courts to re-examine the weight given to the different factors by the officers", according to the Federal Court of Appeal in Legault v. Minister of Citizenship and Immigration, [2002] 4 F.C. 358, at paragraph 11. The respondent submits that the IAD's decision was not unreasonable in light of the factors present in this case, including the seriousness of the misrepresentation, the presence of the wife and child in India and the applicant's frequent visits there, and the applicant's familiarity with the video/music business in India.

15 In my opinion, the applicant has again failed to point to any reviewable error in the IAD's determination of this issue. He disagrees with the manner in which the factors were weighed, but merely reiterates evidence that was before the IAD and adds additional explanation, without showing that the IAD reached an unreasonable conclusion.

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

17 No question is certified.

JUDGMENT

The application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board dated December 21, 2009 is dismissed.

PINARD J.

IRAQ MILITARY OFFICER DENIED RESIDENCY

This is a very interesting and unusual rently reported case, which highlights the provisions of the legislation related to membership in military forces deemed to have engaged in human rights violations.


Younis v. Canada (Minister of Citizenship and Immigration)




Between

Nada Younis and Anmar Mohamad Nouri, Applicants, and

The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 1441

2010 FC 1157



Docket IMM-4866-09



Federal Court

Toronto, Ontario



O'Keefe J.



Heard: June 15, 2010.

Judgment: November 18, 2010.

(34 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT

1 O'KEEFE J.:-- This is an applicant pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a refusal letter of the Second Secretary - Immigration (the officer) of the Canadian Embassy in Damascus, Syria, refusing the applicants' application for permanent residence on the grounds that Anmar Mohamad-Nouri (the male applicant) is inadmissible to Canada pursuant to paragraph 35(1)(b) of the Act. The decision was based on the officer's determination that there were reasonable grounds to believe that the male applicant was a senior member of the Iraqi Army during Saddam Hussein's regime.

2 The applicants seek an order setting aside the decision of the officer and an order directing that a different panel review and assess the applicants' application for permanent residence in Canada.

Background

3 During the period of the male applicant's military service, 1983 to 1996, the Iraqi military was designated as a regime which, in the opinion of the respondent Minister, has engaged in gross human rights violations and other crimes. Having been a prescribed senior official in the service of that military would render a foreign national inadmissible to Canada pursuant to paragraph 35(1)(b) of the Act.

4 The Canadian Embassy in Syria that processed the application, noticed the male applicant's declared military service in the Iraqi Army and on December 16, 2008, sent a note to the applicants requesting that the male applicant complete a Details of Military Service form. Correspondence ensued in which the applicants were specifically advised of the officer's concerns regarding the male applicant's tenure in the Iraqi Army and were given opportunities to provide information and address those concerns.

5 The male applicant's submission to the Canadian Embassy was that he was merely an engineer with the army and while he may have moved up in rank to the position of lieutenant colonel, was never involved in any type of combat. He worked in the electro mechanical directorate from July 1983 to September 1989 and in the computer directorate from October 1989 to September 1996.

6 On February 26, 2009, Canada Border Services Agency (CBSA) provided a report to the officer which outlined the relevant law, standard of proof, policy and the application of paragraph 35(1)(b) to the male applicant. The recommendation was that the male applicant be found inadmissible. Based on the evidence, the male applicant's rank of lieutenant colonel was clearly within the top half of the Iraqi Army, being the sixth-highest rank out of fifteen.

7 The Canadian Embassy sent two more notes to the applicants requesting details regarding the organizational chart of the Iraqi Army indicating the male applicant's placement.

8 On May 26, 2009, the officer provided a fairness letter indicating that there were reasonable grounds to believe that the male applicant was a member of the inadmissible class of persons described in paragraph 35(1)(b) of the Act. In the officer's opinion, the organizational charts supplied by the male applicant confirmed that he was in the top half of the organization and that his position was six positions removed from General Saddam Hussein.

9 The male applicant submitted in reply that within the Iraqi Army, positions of responsibility were classified into three classes: A, B and C. The positions the male applicant occupied fell within the C class which included commanders and officers who were running support services and other backup directorates. He reiterated that he had nothing to do with any combat activities. The male applicant also submitted that he was not loyal to Hussein's regime and in fact that he was forced to retire from the military. His family also secretly opposed the regime and even had members in the opposition forces.

10 On July 23, 2009, the officer rendered her final determination refusing the application. After considering all of the information on file, the officer was still not satisfied that the rank or positions held by the male applicant were not senior ones. Despite the submissions that his positions were merely support, service or backup in nature, the officer was not satisfied that the positions he held were not positions of significant responsibility.

Issue

11 Was the officer's decision reasonable?

Relevant Legislation and the Standard of Review

12 Paragraph 35(1)(b) of the Act provides:



• 35.(1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for



• ...



• (b)

being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or

* * *



• 35.(1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants :



• ...



• b)

occuper un poste de rang supérieur -- au sens du règlement -- au sein d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou commet ou a commis un génocide, un crime contre l'humanité ou un crime de guerre au sens des paragraphes 6(3) à (5) de la Loi sur les crimes contre l'humanité et les crimes de guerre;

13 It is not in dispute that the government of Iraq under Ahmad Hassn Al-Bakr and later under Saddam Hussein between 1968 and May 22, 2003, is designated as a regime that, in the opinion of the Minister of Citizenship and Immigration, engaged in systematic or gross human rights violations and other such crimes.

14 Defining senior official for the application of section 35 of the Act, section 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) provides:



• 16.

For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official in the service of a government is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes



• (a)

heads of state or government;

• (b)

members of the cabinet or governing council;

• (c)

senior advisors to persons described in paragraph (a) or (b);

• (d)

senior members of the public service;

• (e)

senior members of the military and of the intelligence and internal security services;

• (f)

ambassadors and senior diplomatic officials; and

• (g)

members of the judiciary.

* * *



• 16.

Pour l'application de l'alinéa 35(1)b) de la Loi, occupent un poste de rang supérieur au sein d'une administration les personnes qui, du fait de leurs actuelles ou anciennes fonctions, sont ou étaient en mesure d'influencer sensiblement l'exercice du pouvoir par leur gouvernement ou en tirent ou auraient pu en tirer certains avantages, notamment :



• a)

le chef d'État ou le chef du gouvernement;

• b)

les membres du cabinet ou du conseil exécutif;

• c)

les principaux conseillers des personnes visées aux alinéas a) et b);

• d)

les hauts fonctionnaires;

• e)

les responsables des forces armées et des services de renseignement ou de sécurité intérieure;

• f)

les ambassadeurs et les membres du service diplomatique de haut rang;

• g)

les juges.

15 The standard of proof required is set out in section 33 of the Act:



• 33.

The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.

* * *



• 33.

Les faits -- actes ou omissions -- mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.

16 It was for the officer to determine whether there were reasonable grounds to believe that the male applicant's military service constituted service as a senior official. This Court has held that following the Supreme Court's decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and this Court's previous jurisprudence, the applicable standard of review governing a visa officer's decision relating to paragraph 35(1)(b) of the Act is reasonableness (see Yahie v. Canada (Minister of Citizenship and Immigration), 2008 FC 1319, 78 Imm. L.R. (3d) 91 at paragraph 21).

Written Submissions of the Parties

17 The applicants submit that the decision was unreasonable because the officer failed to follow the respondent's enforcement manual, "ENF 18: War Crimes and Crimes against Humanity" (ENF 18) in making her decision. In particular, the officer failed to consult with the modern war crimes section of the CBSA as cautioned by section 8.4 of ENF 18. The officer also erred by failing to refer to section 16 of the Regulations and by doing so, failed to examine the male applicant's degree of influence or the benefits he derived from his position as required in order to determine if an individual is a senior official. The officer erred further by concluding that positions within the top half of the Iraqi Army were considered senior positions without providing any analysis of why such a conclusion was reached. The applicants finally raise the issue that the officer did not have adequate information before her on the Iraqi Army to make a conclusive determination regarding the male applicant's level of seniority.

18 The respondent submits that the decision was reasonable and that there was no error in not referring to the manual specifically. The officer followed the procedure in ENF 18. Indeed, it is ENF 18 which states, "If it can be demonstrated that the position is in the top half of the organization, the position can be considered senior". The officer then continued to follow the procedure in ENF 18 and even went beyond by affording the male applicant three opportunities to demonstrate that his position was not senior. The officer was not required by ENF 18 to consult the modern war crimes section because the male applicant was described in subsection 16(e) of the Regulations. Contrary to the applicants' suggestion, the officer did consider the male applicant's degree of influence. The officer noted the male applicant's movement within his 12 year tenure to positions of increasing responsibility. Finally, the information the male applicant provided confirmed that he was in the top half of the Iraqi Army and accordingly, could be considered senior.

Analysis and Decision

Issue 1

Was the officer's decision reasonable?

19 Because of the standard of review, the decision will be deemed reviewable and remedial action considered if the decision is found to be unreasonable. The Supreme Court in Dunsmuir above, held that on a reasonableness review, the Court should inquire into the qualities that make a decision reasonable and to consider the decision as a whole. Reasonableness is primarily concerned with the existence of justification, transparency and intelligibility in the decision making process, but is also concerned with the end result and whether that result falls within the range of possible, acceptable outcomes (at paragraph 47).

20 The applicants point to several perceived errors in the decision or decision making process. I will now turn to analyze those perceived errors individually. The next step will be to assess the decision on the whole and determine if an established error or errors so severely impugn the merits of the decision that it ought to be interfered with.

21 The applicants' first claim is that the officer failed to consult with the modern war crimes section of the CBSA as cautioned by section 8.4 of ENF 18. In my view, there was no error here. Section 8.4 of ENF 18 in relevant part provides:



• Before considering the refusal of an applicant whose position is not listed in R16, officers are requested to consult with RZTW.

Therefore, the manual only requests that officers consult with RZTW, the modern war crimes section, if the individual's position is not listed in section 16 of the Regulations. Although the particular subsection was not cited, it is clear that in the officer's view, the male applicant's position fell within subsection 16(e) "senior members of the military and of the intelligence and internal security services".

22 The applicants then argue that it was a reviewable error that the officer did not refer to section 16 of the Regulations in her decision. Section 16 is important as its opening sets out the only legislative direction for the qualities that senior officials should have. It provides that persons should be considered senior when, by virtue of the position they hold or held, they are able to exert significant influence on the exercise of government power or are able to benefit from their position. The two key words are influence and benefit. What I take to be the essence of the applicants' argument is not the officer's failure to reference section 16 per se, but the officer's failure to conduct an analysis of the male applicant's ability to influence the Iraqi government or to have benefited from his position.

23 However, the case law implies that such analysis is not required. Indeed, section 16 appears to do away with the need to conduct such analysis with the words "...by virtue of the position they hold or held...". This puts the focus on the individual's rank in the organization and to a degree, leaves influence and or benefit to be simply assumed by operation of law if the individual is found to have held a high enough position.

24 The cases the applicants rely on turn on whether the officer properly conducted an analysis of the individual's comparative rank within the organization. In Lutfi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1391, 52 Imm. L.R. (3d) 99, the decision was ruled unreasonable because the officer made a factual error in considering the applicant to have been a colonel when he was only a lieutenant colonel in the Iraqi Army and also because the officer failed to consider the scheme of rankings in the Iraqi Army and approximately how many individuals were in each position.

25 The number of individuals in positions above and below the male applicant have proved to be a significant consideration due to section 8.2 of ENF 18, which provides that when considering military personnel, "...If it can be demonstrated that the position is in the top half of the organization, the position can be considered senior". While this guideline would disqualify a great many number of individuals in an organization such as the Iraqi Army of the 1980s and 1990s, this Court repeated implied approval of its use by immigration officers. In Hamidi v. Canada (Minister of Citizenship and Immigration), 2006 FC 333, 53 Imm. L.R. (3d) 150, Madam Justice Judith Snider quoted from section 8.2 of ENF 18 and the decision was ruled unreasonable because the officer failed to collect a military service table for the former Marxist regime of Afghanistan that would allow the officer to appropriately consider the applicant's rank therein. The officer simply assumed that the rank of colonel was senior (at paragraph 30).

26 Use of the top half indicator was also cited with apparent approval in other cases (see Nezam v. Canada (Minister of Citizenship and Immigration), 2005 FC 446, 272 F.T.R. 9 (Eng.) at paragraph 26 and Holway v. Canada (Minister of Citizenship and Immigration), 2006 FC 309, 146 A.C.W.S. (3d) 697 at paragraph 33).

27 In the present case, the officer appears to have followed the guidelines by first satisfying herself that the government concerned has been designated by the Minister. Second, the officer satisfied herself that the male applicant had held the position of lieutenant colonel by his own admission. Third, the officer considered the male applicant's ranking in the Iraqi Army by gathering operational charts of the army with the approximate number of positions at each level. The male applicant's position was six positions removed from Saddam Hussein and the sixth highest rank in the Army out of 15 total ranks. It was also considered that while there were 5,400 lieutenant colonels in the Army, the entire army was approximately 1.4 million strong. This gave the officer the evidentiary background to conclude that the male applicant was in the top half of the Iraqi Army. Section 8.2 of ENF, the use of which has been approved by this Court, allowed the officer to rely on this finding to find that the male applicant's position was senior. The officer however, continued and also considered the male applicant's relatively long tenure of 12 years and his promotions to positions of increasing responsibility to further buttress her opinion that he had been senior.

28 While the male applicant argued vigorously that his position was administrative or academic in nature and that he had no involvement in any combat, such arguments were correctly discarded by the officer. The Federal Court of Appeal has determined that personal lack of blameworthiness is simply not relevant to whether one is inadmissible under paragraph 19(1)(l) of the former Immigration Act, R.S.C. 1985, c. I-2, now paragraph 35(1)(b) of the Act (see Canada (Minister of Citizenship and Immigration) v. Adam, [2001] 2 F.C. 337). As has been repeatedly affirmed, the inquiry under paragraph 35(1)(b) of the Act is not about complicity in prohibited acts but whether a position held is senior (see Ismail v. Canada (Minister of Citizenship and Immigration), 2006 FC 987, 150 A.C.W.S. (3d) 890 at paragraph 18). It has been likened to an absolute liability provision.

29 The applicants finally raise the issue that the officer did not have adequate information before her on the Iraqi Army to make a conclusive determination regarding the male applicant's level of seniority. I would note here that the officer is not required to be sure and indeed, cannot always obtain accurate historical information regarding some regimes. The standard of proof as set out in section 33 of the Act, only requires that the officer have reasonable grounds for believing the disqualifying situation to be true. The Court in Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642, [1998] F.C.J. No. 131, (T.D.) held that reasonable grounds 'is more than a flimsy suspicion, but less than the civil test of balance of probabilities... It is a bona fide belief in a serious possibility based on credible evidence." In the present case, the officer gathered evidence identifying the male applicant's position and duties, as well as information regarding the Iraqi Army as a whole and involved the male applicant in the information gathering process. I cannot require that the officer ought to have done more or gathered more.

30 The evidence objectively points to a position somewhere in the top half of the Iraqi-Army. The officer came to the conclusion that the male applicant held a position that was senior. The officer's decision "falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law" (see Dunsmuir above, at paragraph 47). As a result, I cannot say that the officer's conclusions were unreasonable. Hence, the Court should not interfere. Moreover, the officer supported her decision by demonstrating that the position was senior under the guidelines by providing support for her conclusion that it was in the top half of the army and that his position had significant responsibilities.

31 While the Court in Lutfi above, allowed judicial review regarding an individual of the same rank and within the same organization, the case does not set a precedent favourable to the male applicant. To the extent that the errors in the decision making process identified in Lutfi above, were not made by the officer in this case, the case is not applicable.

32 As a result, the application for judicial review must be dismissed.

33 Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

JUDGMENT

34 IT IS ORDERED that the application for judicial review is dismissed.

O'KEEFE J.
Visalaw International CS CBA OBA-ABO AILA IPBA NYSRA ABA IBA