Monday, May 31, 2010


This recent decision shows how lack of appropriate detail in the evidence presented by the applicant to support her job experience can easily lead to a refusal of the application. The situation is not uncommon. Applicants sometimes think that it is "easy" to handle immigration applications, and erroneously conclude that they can do them on their own, to save money. The results of such false confidence are self-evident.

Kaur v. Canada (Minister of Citizenship and Immigration)

BetweenBaljinder Kaur, Arvinder Singh, Paramjit Kaur, Applicants,
The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 587
2010 FC 442Docket IMM-3475-09 Federal CourtToronto, OntarioTremblay-Lamer J.Heard: April 22, 2010.
Judgment: April 23, 2010.
(15 paras.)


1 TREMBLAY-LAMER J.:-- This is an application by Baljinder Kaur (the Applicant), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (IRPA) for judicial review of a decision dated June 15, 2009, by the Second Secretary (Immigration) of the Canadian High Commission in Delhi (the visa officer), denying the Applicant's application for a skilled worker visa.
2 The Applicant is a citizen of India. She applied for permanent residence in Canada as a skilled worker. She indicated that she was a cook, and had been employed in this trade for three and a half years.
3 In support of her application she provided a copy of a letter from an employer, stating that she was a good worker and had learned to cook many types of Indian meals. She also provided a brief description of her duties on a form submitted with her application.
4 The visa officer found these supporting documents to be insufficient. Therefore, he denied her application.
5 The visa officer never contacted the Applicant or her employer regarding his concerns. The Applicant only learned of them upon receiving the letter informing her of the rejection of her application.
6 The sole issue raised by the Applicant relates to procedural fairness. If the visa officer breached his duty of fairness, no deference will be owed to his decision, and it will be set aside, because "[i]t is for the courts ... to provide the legal answer to procedural fairness questions" (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at par. 100).
7 The Applicant submits that she provided a "detailed letter" stating that she performed the duties of a cook for three years and a half in India. The visa officer's concern that it was insufficient could easily have been addressed had he notified the Applicant. Indeed, the officer had a duty to do so. While the Applicant recognizes that she must present sufficient evidence in support of her claim, she argues that she did in fact submit sufficient prima facie evidence to impose on the visa officer a duty to address any outstanding concerns with her. She adds that she could not have anticipated the visa officer's doubts as to the sufficiency of her supporting materials.
8 The Minister submits that the Applicant's employer's letter was not detailed and indeed failed to include information, such as the Applicant's responsibilities at her workplace and her remuneration, which she was required to provide. Furthermore, it does not corroborate the list of duties submitted by the Applicant with her application.
9 The Applicant bears, and failed to discharge, the onus of submitting sufficient evidence in support of her application. Fairness did not require the visa officer to advise the Applicant of the inadequacy of her materials. The Applicant was not entitled to an interview to correct her own failings.
10 I agree with the Minister. The Applicant failed to discharge her burden to present adequate evidence in support of her obligation, and the visa officer had no duty to assist her in doing so. As Justice Marshall Rothstein, then of the Federal Court, Trial Division, held in Lam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239 (F.C.T.D.) at par. 3-4, the argument that an applicant might present prima facie evidence which, though insufficient to support his or her application will nevertheless trigger a duty to seek clarifications of this evidence :
gives an advantage to applicants for permanent residence who file ambiguous applications. This cannot be correct.
A visa officer may inquire further if he or she considers a further enquiry is warranted. Obviously, a visa officer cannot be wilfully blind in assessing an application and must act in good faith. However, there is no general obligation on a visa officer to make further inquiries when an application is ambiguous. The onus is on an applicant to file a clear application together with such supporting documentation as he or she considers advisable. The onus does not shift to the visa officer and there is no entitlement to a personal interview if the application is ambiguous or supporting material is not included.
11 It is true that in some cases a visa officer will indeed have a duty to put his concerns to an applicant. However, having reviewed the cases where such a duty was found to exist, justice Richard Mosley explained, in Hassani v. Canada (Minister of Citizenship and Immigration) 2006 FC 1283, [2007] 3 F.C.R. 501, at par. 24, that "it is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the Applicant to address his or her concerns." (See also, e.g., Roberts v. Canada (Citizenship and Immigration), 2009 FC 518 at par. 20 and the cases cited there for applications of that principle).
12 The question whether an applicant has the relevant experience as required by the regulations and is thus qualified for the trade or profession in which he or she claims to be a skilled worker is "based directly on the requirements of the legislation and regulations" (Hassani, above, at par. 26). Therefore it was up to the Applicant to submit sufficient evidence on this question, and the visa officer was not under a duty to apprise her of his concerns.
13 Besides, as the Minister points out, the Applicant was provided with a checklist to help her prepare her application. That checklist stipulated that letters of reference from employers "must include," inter alia, the Applicant's "main responsibilities in each position" which she held and her "total annual salary plus benefits." Yet the only independent evidence submitted was a letter by a former employer which failed to provide the required information.
14 The visa officer could be reasonably concerned at the utter lack of detail in the Applicant's employer's letter. It did not help that the Applicant's own description of her duties appeared to be copied from the National Occupational Classification. Thus, it was open to the visa officer, on the basis of the scant evidence before him, to find that the Applicant had not established that she had sufficient work experience in her stated occupation, and to reject her application on that basis.
15 For these reasons, the application for judicial review is dismissed.


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


Sunday, May 30, 2010


This article appeared in Maclean's magazine. I have seen the previous incarnation of this "website" .What is interesting is that the body regulating lotteries in the Province of Quebec does not appear to have done much to put a stop to this.


Selling hope to the unwitting

May 29, 2010 by Michael Friscolanti

The federal government is about to announce new legislation aimed at cracking down—yet again—on fraudulent, fly-by-night immigration consultants. The details are still secret, but in a recent speech to a gathering of lawyers, Immigration Minister Jason Kenney said Ottawa is serious about cleaning up the racket once and for all, and assured his audience that tougher rules are imminent.In the meantime, people all over the world will keep sending cash to Ehab Lotfi—hoping to “win” their way into Canada.
As Maclean’s readers may remember, Lotfi was the proud founder of the “Canadian Immigration Lottery,” a slick website that, minus the fine print, made it seem as though Canada actually operates an immigration lottery. We don’t, of course. What Lotfi’s Montreal company was really doing was charging wannabe newcomers $115 a pop for the chance to win an all-expenses paid visa application. Thousands signed up. Hundreds “won.” Profits were made.
At the time, Lotfi insisted that his site was an innocent “marketing tool,” and not a scam to trick the naive and the desperate into thinking they could really win a spot in Canada. But when industry regulators launched an investigation, Lotfi opted for a name change. The Canadian Immigration Lottery became CIFA (Canadian Immigration Financial Assistance).
Today, the controversial website is called something else:
The problem? Canada doesn’t give out green cards. America does. But that hasn’t stopped Lotfi and his associates from reeling in the contestants. “At Canada Green Card, we believe that dreams do come true,” the website says. “Never stop dreaming.”
The concept is exactly the same as the original lottery. Applicants pay $115 to Lotfi’s firm, Canadian Immigration House (CIH), to be entered into a random daily draw. Winners receive a professionally crafted visa application, a service that typically costs around $2,000. Losers receive nothing—except the fuzzy feeling of knowing that their entry fees helped cover the winners’ prizes.
Back in 2006, Lotfi admitted the obvious: that he was also pocketing a cut. (“I’m running a business,” he said. “It’s not a one-way business.”) But now that his creation is called the Canada Green Card program, he insists he is losing money—and quite happily. “I am helping these people, and I don’t care what you think about it, what other people think about it, what you write, what you don’t write,” he said. “My clients love me and my clients believe in me.”
The Canadian Society of Immigration Consultants (CSIC) does not believe him. The organization, which regulates the profession across the country, revoked his membership in January. “Many individuals are seeking anything they can to try to establish a foothold in Canada,” says Nigel Thomson, the CSIC’s chair. “You can say that people are gullible and they should know better, but when you’re desperate you search out whatever means you can.”
Lotfi has hired a lawyer and is promising to take the CSIC to court, arguing that the organization doesn’t have the legal authority to blacklist him. He also denies any suggestion that someone on the other side of the world might stumble across the new website and assume that it’s a raffle for genuine green cards. “If people are applying for immigration, they are educated, and when they read the website exactly they will understand there is no green card,” he said. “I think it’s well-explained.”
Lotfi is so confident in the credibility of his “charity” work that he agreed to pose for a picture—until the Maclean’s photographer actually showed up at his office. Lotfi phoned the police instead.

Friday, May 28, 2010


May be President Calderon should start by wiping out the drug cartels and the culture of corruption that reigns in Mexico before complaining about what Canada does to stem the flow of refugee claimants. If the situation was reversed, would Mexico tolerate Canadians going there, claiming refugee status, collecting welfare and getting legal aid, clogging the system? Mexico has some of the most stringent immigration laws in the Western hemisphere and regularly expels thousands of people from neighbouring countries such as Honduras, El Salvador, Nicaragua, Guatemala, etc. Complaining about the visa imposition should not be a substitute for fixing Mexico's dire situation.

Calderon ‘Regrets’ Canada Visa Rule, Promotes Mexico (Update1) - BusinessWeek

Thursday, May 27, 2010

Canada will have more seniors than kids in the next decade: StatsCan

No doubt, this should have a serious impact on our immigration policies, reinforcing the fact that we need younger, more dynamic immigrants to ensure economic activity, and that we need to rethink immigration programs such as sponsorships of parents and grandparents who will not join the labour force. This is a wake up call for policy makers.

Canada will have more seniors than kids in the next decade: StatsCan Posted National Post

Tuesday, May 25, 2010


This article from today's Globe and Mail is a fairly typical story: a "consultant" makes outlandish promises that sound "perfect", misrepresents "connections" and "guarantees" a good result. The trouble is that those promises are just that....empty promises. On the other hand, the "client" is not without blame: he was eager to bring people to work in his business, and instead of hiring a reputable immigration lawyer who would give him accurate and measured advice, he opted for someone with purported "connections", hoping to gain the inside track. The result? no success, and his money wasted. The lesson? Hire competent immigration lawyers who give realistic advice and have a proven track record, and stay away from individuals who promise success and offer "money back guarantees". Professionals must be compensated accordingly, and NEVER guarantee a specific result, as they do not make the decisions. A professional can only offer to use his best efforts in a case, in accordance with his experience and with the law. What is also interesting here is that the "client" wanted to bring foreign workers for a construction business at a time when there are many unemployed Canadians in that industry. Had the client received good advice from an immigration lawyer, he would have been told that it would be extremely difficult to bring foreign construction workers in these hard economic times and probably would not have proceeded with the application, or at least have done so with lowered expectations.

'Ghost agents' slip through immigration loophole - The Globe and Mail

Sunday, May 23, 2010

CTV British Columbia - Victims of immigration fraud call for industry regulation - CTV News

CTV British Columbia - Victims of immigration fraud call for industry regulation - CTV News


This is long overdue. However, I doubt that any kind of regulatory regime will deter people abroad from defrauding potential immigrants with outlandish promises and misrepresentations of influence with government officials. What must be understood is that , unless a person is a Canadian citizen, and physically resident and doing business in Canada, there can be no extra-territorial application of the law, it is impossible to prosecute the worst offenders who concoct grandiose schemes or who commit outright fraud. The only solution is a firm ban on consultants operating abroad, and to bring those in Canada under the jurisdiction of the provincial law societies to enforce strict education and ethical standards.

Feds ponder tougher controls over immigration consultants

Feds ponder tougher controls over immigration consultants

By Norma Greenaway, Canwest News Service
May 22, 2010

Federal Citizenship and Immigration Minister Jason Kenney is expected to propose a more robust regulatory body as part of a long-promised legislative package aimed at cracking down on unscrupulous "ghost" immigration consultants, Canwest News Service has learned.

OTTAWA — The body currently regulating immigration consultants in Canada could be replaced by a more accountable organization with stronger investigative powers under new measures the federal government is preparing to introduce in Parliament.
Immigration Minister Jason Kenney is expected to propose a more robust regulatory body as part of a long-promised legislative package aimed at cracking down on unscrupulous "ghost" consultants, Canwest News Service has learned.
The package, which Kenney plans to unveil within the next couple of weeks, is also expected to make it an offence for anyone to misrepresent themselves to prospective immigrants if they are not lawyers or certified immigration consultants.
New Democrat MP Olivia Chow hasn't seen the proposals, but she is optimistic they will meet the key demand of the all-party immigration committee to create a more muscular regulator.
"He understands the problem. He's heard the complaints," said Chow, her party's immigration critic.
"Ghost" consultants operate inside Canada and abroad without any oversight, charging prospective immigrants thousands of dollars to fill out applications, which they may load with false information and which, in some cases, they don't even submit.
They earned the "ghost" label because they are not seen by immigration officials and their names appear nowhere on the paperwork submitted to the government.
Unlike lawyers and certified immigration consultants, they don't have to adhere to education and ethical standards imposed respectively by provincial law societies or the Canadian Society of Immigration Consultants, a private corporation established in 2004 by the federal government. Many operate abroad, making it difficult for authorities here to put them out of business.
The new measures will likely include a provision requiring applicants to provide the names of people they paid to help them with their paper work, sources said, with a promise their applications will not be affected if they are found to have used an illegitimate representative.
Canada admitted about 250,000 new permanent residents last year, meaning uncertified consultants have a large pool of prospective clients to tap into.
Chow said she's been bending Kenney's ear on the need to tighten the regulatory regime for consultants since he was named immigration minister in 2008.
"I told him, don't be soft on crime against immigrants," she said, purposely applying the "soft on crime" label the ruling Tories like to hurl at opposition politicians.
The CSIC has been criticized by some of its members, the Canadian Bar Association and politicians of all stripes for not being effective enough in regulating its own membership and going after bad consultants.
Barring a last-minute change of plan, the government intends to replace the CSIC with a new organization, modelled along the lines of provincial law societies, with strengthened powers to investigate its members, prosecute misconduct and compel testimony from witnesses. It would be created as a federal entity, making it more accountable to its members and the public.
There likely will be a transition period during which the estimated 1,700 consultants registered with CSIC will continue to be recognized as legitimate representatives until the new regulatory body is up and running.
The report by the immigration committee, which received support from all parties, called for a new regulatory body after hearing a litany of complaints about CSIC during cross-Canada hearings that, it said, could not be attributed to growing pains.
The committee said it heard that CSIC membership fees were too high, decision-making is undemocratic and lacks transparency, and that the board of directors is not accountable to anyone.
The report also highlighted a rule change that makes it a professional offence to "undermine" CSIC, a change that has resulted in a handful of its members being disciplined because, they say, they publicly endorsed the immigration committee's call for a new regulatory authority.
The consultants are challenging their treatment in the Federal Court of Canada.
Nigel Thomson, chairman of the CSIC, defended the organization, saying it does a good job of educating members, weeding out bad ones and handling complaints.
He acknowledged, however, he is out of loop on what the government is planning and that CSIC has not been asked for input. Thomson said his repeated requests for a meeting with Kenney have gone unanswered.

Saturday, May 22, 2010


I find it amazing how incredibly bad our system is in dealing with these types of cases. This is nothing short of laughable. I can't understand why the appeal is not simply dismissed by failure to file on time. Hundreds of appeals and reviews are dismissed regularly for that reason. The adjudicator is wrong in law, as there is nothing in the legislation to obligate CBSA to wait for the applicant to file a document.

Deportation case stalled as Bosnian refuses to file paperwork

Deportation case stalled as Bosnian refuses to file paperwork

By Sherri Zickefoose, Calgary HeraldMay 21, 2010

CALGARY — A convicted double murderer fighting deportation to Bosnia for fear he will be killed has stalled proceedings by failing to follow up his federal appeal.
Elvir Pobric, arrested on an Interpol warrant in Calgary last year, is accused of escaping prison and fleeing to Canada as a refugee in 1999.
While his pre-removal risk assessment rejects his case to stay, Pobric is two months late filing submissions for a federal appeal of his stripped refugee status. The appeal was filed last February by his previous lawyer.
He now has up to four weeks to file the submissions.
"The only application preventing your removal is your application to the federal court," Immigration and Refugee Board adjudicator Leeann King said from Vancouver during Friday's hearing in Calgary.
If Pobric drops the appeal, the Bosnian Embassy says it can have his travelling papers ready within two weeks, the hearing learned.
He has 15 days to appeal the pre-removal risk assessment, which rejected his case of persecution Wednesday.
Pobric has told his lawyer and guards that "he'd rather die here than go back" to Bosnia, where he faces another 15 years and five months in jail to complete his 20-year sentence.
Pobric was ordered detained in custody for another month, King said, because she is satisfied if released, he would be unlikely to appear.
Pobric, who has a wife and two children in Hamilton, Ont., allegedly escaped from jail in Bosnia and fled to Canada, never revealing his double murder conviction or prison sentence to immigration officials.
He was granted refugee status before the Interpol warrant was issued for his arrest in 2009.
Pobric claims he was wrongly accused.
He has since been stripped of refugee and permanent resident status and ordered deported from Canada.
He is wanted in Bosnia-Herzegovina for allegedly escaping jail on a double-murder conviction in the early 1990s for the deaths of two men in a black market currency deal.

Friday, May 21, 2010


This case is an example of how a careless handling of an application, and the provision of contradictory information, may result in serious s consequences. The applicant apparently enlisted a "travel agency" to obtain a visitors visa to Canada, after she filed the immigration application on her own. She should have hired a lawyer...

Cao v. Canada (Minister of Citizenship and Immigration)

Qianghua Cao, Chugang Wu and Zhimin Wu, Applicants,
The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 537
2010 FC 450Docket IMM-3493-09 Federal CourtToronto, OntarioMainville J.Heard: March 25, 2010.Judgment: April 26, 2010.
(38 paras.)


1 MAINVILLE J.:-- This concerns an application submitted pursuant to sections 72 and following of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") by Qianghua Cao (the "principal Applicant"), her husband Chugang (or Chuguang) Wu, and her son Zhimin Wu, all citizens of the People's Republic of China, seeking judicial review of a decision dated June 23, 2009 of Susan Burrows, Consul (Immigration) at the Canadian Consulate General in Hong Kong (the "Senior Officer") rejecting, pursuant to paragraph 40(1)(a) of the Act, the principal Applicant's application for permanent residence in Canada on the ground of misrepresentation.
2 This application for judicial review shall be dismissed for the reasons set out below.


3 The principal Applicant submitted an application dated April 30, 2007 for permanent residence in Canada as a business immigrant. In this application, she describes herself as "Board Chairman & General Manager" (at page 163 of the Tribunal Record).
4 In her background declaration dated October 26, 2008, the principal Applicant mentioned, with respect to her educational achievements, studies at Guangzhou Radio School and part-time studies in economic management. She did not mention any training, curriculum, degree or certificate in law. The principal Applicant also mentioned that she had been employed, since 1994, as "Legal Representative, President and General Manager" by the Guangzhou Haizhu District Xinda Real Estate Consultant Service Center ("Xinda") (at page 167 of the Tribunal Record). She did not mention any employment or association with a law firm.
5 In a document attached to her application and dated October 28, 2008, the principal Applicant claims to hold 67% of the shares of Xinda. She states that Xinda is active "mainly in analysis and consultancy on investment project (sic) of real estate, supplementary service for real estate exchange, legal consultancy service, etc." and she states that she is employed in Xinda as "legal representative and concurrently general manager" (at page 174 of the Tribunal Record).
6 Numerous documents setting out the principal Applicant's experience and education were attached to her application for permanent residence, but none concerning any legal training or any association with a law firm. Some of these documents appear to be official registrations for Xinda in which the principal Applicant is described as Xinda's legal representative, and the corporate purposes of Xinda are said to include real estate information consulting.
7 An organizational chart of Xinda was also submitted with the application, and it designates the principal Applicant as the General Manager of the business responsible for three departments, namely Finance, Personnel and Marketing. A distinct Deputy General Manager position is also set out in this chart responsible for "Law Consulting Service" and "Information Service" (at page 123 of the Application Record).
8 While her application for permanent residence was being processed, the principal Applicant also submitted to Canadian immigration authorities an application signed August 11, 2008 to obtain the required authorization for the purpose of temporary travel plans to Canada. In this temporary residence application, the principal Applicant stated that she was employed as a "lawyer" by "Everwin Law Office" in Quangzhou where she was a "partner" (at pages 154-55 of the Tribunal Record). Moreover, the principal Applicant made no mention whatsoever of Xinda in her temporary residence application.
9 The officer reviewing her permanent residence application eventually took note of the discrepancies, and a letter dated March 17, 2009 (the "fairness letter") was sent to the principal Applicant informing her of the apparent misrepresentation, and asking her for information or documents which might clarify the situation.
10 The principal Applicant responded on April 9, 2009 stating that she had always been the "Legal Representative and General Manager" of Xinda since 1994. However, since Xinda is active in real estate consulting, the types of legal problems the business encounters are manifold. This was said to explain why she obtained a lawyer's licence after two years of self-study, and passed the National Lawyer Qualification Examination to become a lawyer in June of 1997. However, she claims that in order to be able to practice law, she needed to register her license and join a licensed law firm. Consequently, she claims that she registered as a part-time lawyer with the Everwin Law Office ("Everwin") in 1998. She states that she only works as an in-house lawyer for Xinda and thus provides legal advice to Xinda's clients and never does any work for Everwin. In sum, the Applicant asserts that her arrangement with Everwin is simply one of convenience.
11 In her April 9, 2009 response, the principal Applicant explained as mistakes by her travel agency the statements in her temporary visa application concerning her employment as a lawyer for, and a partner of, Everwin. She claims she gave that agency all required documents, including Xinda's documents and her lawyer's license. She adds that it was the travel agency that prepared the application and made the mistakes. She thus blames her travel agency for the inclusion of the wrong information in the temporary residence application.
12 As to the absence of any mention of Everwin in her permanent residence application, the Applicant explains this omission as follows: "I might not mention much about my part time job as a lawyer with "Everwin" because I don't have to deal with them at all and I never have to report duty to them, that sometimes makes me forget about them."
The impugned decision
13 The notes in the record dated June 19, 2009 from the Senior Officer set out the details of her decision to deny the application for permanent residence on the ground of misrepresentation:
It is clear to me that the applicant misrepresented material facts related to her work experience. Such facts could have led to an error in the administration of the act as we may have omitted crucial backgrounds checks related to her admissibility. Her explanation of blaming discrepancies on an agency that completed her forms is a common one but not a credible one. She is responsible for ensuring that her applications are complete and truthful. She was given an opportunity to explain her omissions and did not provide a credible explanation. By my authority, I am refusing this application as per section A40 and sending a refusal letter to that effect. This renders her inadmissible to CDA for all purposes for two years.
Relevant provisions of the Act
14 The relevant provisions of the Act are subsection 16(1) and paragraphs 40(1)(a) and 40(2)(a), which read as follows:
16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
The following provisions govern subsection (1):
(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; [...]
* * *
16. (1) L'auteur d'une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, donner les renseignements et tous éléments de preuve pertinents et présenter les visa et documents requis.
40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi;
Les dispositions suivantes s'appliquent au paragraphe (1):
a) l'interdiction de territoire court pour les deux ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l'étranger n'est pas au pays, ou suivant l'exécution de la mesure de renvoi; [...]
Position of the principal Applicant
15 The principal Applicant submits that no issue of misrepresentation is raised in this case. Specifically, the principal Applicant argues that in assessing misrepresentation, it was not open to the Senior Officer to consider the temporary residence application, since that application was unrelated to the permanent residence application at issue in these proceedings. Consequently, the real issue to be addressed by this Court is rather whether the principal Applicant withheld material facts relating to a relevant matter that induced or could induce an error in the administration of the Act in relation to her permanent residence application.
16 The principal Applicant further argues that the Court cannot find that she withheld information under paragraph 40(1)(a) of the Act, unless she was expected to provide the information because specific questions had been asked or she had been otherwise made aware that she had to disclose a relevant fact. Applicants should not be exposed to the risk of being declared inadmissible for having unintentionally withheld information.
17 Consequently, the principal Applicant submits that she answered correctly the questions on her work experience in her permanent residence application by advising the authorities of her activities since 1994. She asserts that all the information provided was correct, she disclosed that she was the legal representative and general manager of Xinda and that this enterprise supplied legal services related to real estate consultancy work. Moreover, she had no duty to disclose her registration with Everwin since this relationship was entered into as a mere formality that enabled her to provide advice to Xinda.
18 The principal Applicant further submits that even if this Court were to find that she did withhold information, it did not concern material facts relating to a relevant matter that induced or could induce an error in the administration of the Act. Her registration with Everwin was simply pro forma, and could have no influence on her application for permanent residence as a business immigrant. The information withheld must be shown to have led to an error in the administration of the Act, and this has not been shown in this case. The Senior Officer does not explain why the principal Applicant, who applied for permanent residence as a successful businesswoman and manager of a real estate company, would have required less scrutiny than she would now require given that it was revealed that in addition to these functions, she was also a part-time lawyer providing legal advice to the same company.
19 Moreover, the principal Applicant corrected the information supplied after receiving her fairness letter; hence, it is submitted by the principal Applicant that under paragraph 40(1)(a), an applicant is not barred from correcting a misrepresentation or providing withheld information as long as no official has acted on the basis of flawed information.
Position of the Minister
20 The Minister first submits that the applicable standard of review in this case is that of reasonableness.
21 The Minister is of the view that the principal Applicant did not provide complete, honest and truthful information both when she submitted her application for permanent residence and subsequently submitted her application for temporary residence. Both applications are clearly contradictory; therefore, there has been a misrepresentation on the part of the principal Applicant. These misrepresentations were material and directly or indirectly induced or could have induced an error in the administration of the Act.
22 The Senior Officer considered the explanations given by the principal Applicant concerning these discrepancies and found them not to be credible. Such a decision was reasonable in the circumstances, was based on the evidence, and was open to the Senior Officer to make. Consequently, this Court should not disturb this finding.
Standard of review
23 The decision of the Senior Officer in this case raises essentially questions of fact: did the principal Applicant make misrepresentations or withhold information? If the answer is affirmative, were those misrepresentations or withheld information material in that they could have induced an error in the administration of the Act?
24 As noted in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 ("Dunsmuir") at paragraph 53, decisions from administrative bodies concerning issues of fact usually attract a standard of reasonableness in judicial review proceedings. This is the standard applicable in this case to the determinations of facts made by the Senior Officer.
25 However, the decision is also being challenged by the Applicant on the basis that the Senior Officer misapplied or misconstrued paragraph 40(1)(a) of the Act. The interpretation of that provision is a question of law. In addition, it was stated by the Supreme Court in Dunsmuir (at paragraph 54) that a standard of reasonableness may also apply where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity. However this is not always the case. Here, a consideration of various factors leads me to conclude that the Senior Officer's decision must be reviewed on a standard of correctness if the interpretation of paragraph 40(1)(a) of the Act is at issue.
26 I come to this conclusion in view of a number of factors; in particular, the Senior Officer is not an administrative tribunal but rather an officer of the Crown entrusted with a non-adjudicative function; the Senior Officer's decision is not covered by a privative clause; the Senior Officer holds no special expertise in the interpretation of the Act and, in view of the general scheme of paragraph 40(1)(a), no deference is due to the Senior Officer on questions of law raised in a determination of misrepresentation.
27 In addition, the approach described above is consistent with the pre-Dunsmuir case law of this Court. It was held in Khan v. Canada (Minister of Citizenship and Immigration), 2008 FC 512, [2008] F.C.J. 648 (QL) (at paragraph 22) that questions of statutory interpretation related to paragraph 40(1)(a) of the Act are subject to a standard of correctness. It has also been held that determinations of misrepresentations under that paragraph call for deference in judicial review proceedings, since they are factual in nature: Baseer v. Canada (Minister of Citizenship and Immigration), 2004 FC 1005, [2004] F.C.J. 1239 (QL) at paragraph 3 and Bellido v. Canada (Minister of Citizenship and Immigration), 2005 FC 452, [2005] F.C.J. 572 (QL) at paragraph 27.


28 Under paragraph 40(1)(a) of the Act, the Applicant is inadmissible to Canada if she has misrepresented or withheld material facts on a relevant matter that induces or could induce an error in the administration of the Act. I conclude that this provision, read in combination with paragraph 16(1) of the Act, imposes a general and broad duty on the Applicant to disclose all facts which may be material to her application for permanent residence. The Canadian immigration system rests on the premise that all persons applying under the Act will provide truthful and complete information on the basis of which decisions regarding their eventual admission into Canada will be made. The integrity and credibility of that system requires that this duty be taken seriously by all those concerned, including in this case the Applicant.
29 In the light of these principles, I disagree with the Applicant, who submits that her temporary visa application cannot be taken into account in determining whether she misrepresented information or withheld information in her permanent residence application. The temporary visa application is a proper document for the Senior Officer to consider, and the argument that a misrepresentation in the temporary residence application cannot attract the application of paragraph 40(1)(a) is not cogent.
30 The information provided by the Applicant in her temporary residence application is clearly inconsistent with the information she provided in her permanent residence application. In one application she claims to be a lawyer and a partner of the law firm of Everwin, while in the other she claims to be a senior manager and majority shareholder of Xinda. Obviously the Applicant has made a misrepresentation in at least one of these applications, and this in and of itself sufficient to attract the application of paragraph 40(1)(a) of the Act.
31 The Applicant admits to the misrepresentation in her temporary residence application, but argues that this was an error of her travel agent. Again, that does not bar the application of paragraph 40(1)(a) of the Act. The Applicant signed her temporary residence application and consequently must be held personally accountable for the information provided in that application. It is as simple as that.
32 The Applicant denies having withheld information in her permanent residence application, and rather attributes her omission to mention her legal training and certification and her association with Everwin as facts that simply slipped from her mind. The Senior Officer did not find this explanation credible and this finding is clearly reasonable in the circumstances. It indeed defies belief that a difficult legal training leading to certification as a lawyer would have been forgotten by the Applicant in submitting her permanent residence application. In addition, the Applicant's claim lacks credibility in the light of her own admission that she viewed this information as relevant for the purposes of her temporary residence application. If it was relevant for the latter purposes, it follows logically that it was relevant for the purposes of her permanent residence visa application.
33 The Applicant further asserts that her association with Everwin is purely one of convenience since she simply acts as legal counsel to Xinda. However the organizational structure of Xinda provided by the Applicant rather shows that the Deputy General Manager of Xinda, and not the Applicant, is responsible for Xinda's legal department.
34 Finally, the Applicant argues that the misrepresentation or withholding was subsequently cured when she provided the information after she received the fairness letter. I disagree. When the Minister uncovers the fact that a misrepresentation has been made or that information has been withheld, a simple subsequent correction of the record or the communication of the information in question will not normally act as a bar to the application of paragraph 40(1)(a): Khan v. Canada (Minister of Citizenship and Immigration), supra at paragraph 25.
35 I turn now to the question of the relevance and materiality of her misrepresentations. The Senior Officer found that those misrepresentations or omissions could have led to an error in the administration of the Act in that crucial background checks related to the Applicant's admissibility may not have been carried out. This is a finding of fact closely related to the procedures and policies applied by the immigration authorities working out of the Hong Kong office. Deference is owed by this Court in reviewing this finding. Unless it can be demonstrated that this finding is unreasonable, it should not be overturned in a judicial review proceeding.
36 The Senior Officer noted at paragraph 11 of the affidavit she signed in the context of this judicial review proceeding that certain occupations, such as that of lawyer, could be subjected to background checks. This affidavit was not challenged by the Applicant, and no evidence was presented to me to show that such background checks were not carried out by the Hong Kong office for lawyers seeking permanent residence in Canada. Consequently, the Applicant has failed to convince me that the finding of the Senior Officer on this matter was unreasonable or otherwise flawed.


37 This application for judicial review is dismissed.
38 This case raises no question to be certified pursuant to paragraph 74(d) of the Act.


THIS COURT ORDERS AND ADJUDGES that this application for judicial review is dismissed.



In this recently released case, a visa officer in New Delhi failed to disclose to the applicant that he had serious concerns about the legitimacy of the job offer stated in the Arranged Employment Offer. This was fatal to his decision and the court granted a positive review. A visa officer must afford an applicant the opportunity to respond to concerns raised in the application. Note the lengthy delay from the application filing until its review, over four years!

Gill v. Canada (Minister of Citizenship and Immigration)

BetweenAmarjit Singh Gill, Applicant,
The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 548
2010 FC 466Docket IMM-3551-09 Federal CourtToronto, OntarioHarrington J.Heard: April 27, 2010.Judgment: April 28, 2010.
(17 paras.)


1 HARRINGTON J.:-- Mr. Gill, a citizen and resident of India, applied for permanent residence in Canada in 2005. His application was rejected in June 2009 by the Second Secretary, Immigration, at Canada's High Commission in New Delhi. His application had been assessed as a member of the federal skilled worker class, more particularly as a secondary school teacher. He needed 67 points, but was only awarded 62. Had he had "arranged employment" he would have received 10 additional points. As it was he was awarded none. Had he demonstrated that his spouse's brother was a permanent resident living in Canada, he would have been assessed five more points. As it was he was assessed none. This is a judicial review of that decision.
2 The delay between receipt of an application for permanent residence and the processing thereof may, as in this case, be counted in years. Much can happen in the interval.
3 The High Commission in New Delhi sent Mr. Gill two interlocutory letters. The first in January 2009 asked him to provide the results of medical exams and to advise if there was any change in his mailing address.
4 At that point in time, the evidence which he had submitted to establish that he had a brother-in-law in Canada was copy of the brother-in-law's permanent resident card, a copy of the brother-in-law's Indian passport renewed in Vancouver with a British Columbia address, and an affidavit from his wife in which she also provided her brother's British Columbia address.
5 In support of his "arranged employment" he had submitted an offer of employment from the Bambolino Montessori Academy of Toronto, and an arranged employment opinion from Service Canada.
6 In May 2009 the Second Secretary, Immigration, wrote to him to say that she did not find it credible that he had been selected for the job and gave him an opportunity to address her concerns. He replied with further letters both from himself, and from the school.
7 However the Second Secretary was still not satisfied and, as mentioned above, awarded him no points for having a brother-in-law who is a permanent resident living in Canada and no points for arranged employment. If he had succeeded on either issue he would have achieved the required minimum of 67 points. She said:
"I have awarded zero points for Arranged employment as you have failed to satisfy me that you have a genuine offer of employment in Canada. I have awarded you zero points for adaptability as you have not demonstrated that your spouse's brother is a permanent resident (the copy of the card you submitted expired on October 6, 2008) or Canadian citizen or that he resides in Canada."


8 With respect to adaptability based on a close relative being a citizen of or permanent resident of Canada, and living here, was the decision procedurally fair as Mr. Gill had been given no opportunity to address the Second Secretary's concerns?
9 With respect to the arranged employment, did the decision maker mischaracterize the legal duty imposed on her by the Regulations? If not, was the decision reasonable?


10 At the time Mr. Gill's application was assessed, his brother-in-law may or may not have been living in Canada; may or may not have met the residency obligation imposed by section 28 of the Immigration and Refugee Protection Act; may or may not have received a renewed permanent residency card; may or may not have become a citizen and there may or may not have been an investigation against him.
11 In my opinion, it was procedurally unfair for the Visa Officer to render her decision without bringing these concerns to Mr. Gill's attention and giving him the opportunity to dispel them. No deference is owed. This is not a case where there had been a bald statement of a relative living in Canada, without any evidence whatsoever. There was evidence. If the Officer wanted more, she should have asked for more.
12 Whether or not the Minister is correct that it would have been difficult for the Officer to obtain updated information about the brother-in-law's status through government channels, the Officer could, and should, have voiced her concerns to Mr. Gill. A perfect example is found in Malik v. Canada (Minister of Citizenship and Immigration), 2009 FC 1283. In that case at the time of processing the applicant received a notice which, among other things, stated:
Please provide copies of documents which show that your (or your accompanying spouse's) relative is residing in Canada. These can include documents such as income tax information, latest pay slips, credit card statements etc. Affidavits and statutory declarations are not satisfactory proof of residence in Canada.
13 No such letter was sent to Mr. Gill. It was simply wrong to rely upon a delay in processing to pounce on the fact that the permanent resident evidence, which was current when submitted, had by then expired. The duty of fairness was not observed (Laio v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1926 (T.D.) (Q.L.), Hussein v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 203, 45 Imm. L.R. (2d) 13, and Salman v. Canada (Minister of Citizenship and Immigration), 2007 FC 877, 63 Imm. L.R. (3d) 285).
14 Having reached the conclusion I have on the relative in Canada point, I need not consider the arranged employment offer because it is moot.
15 However, I venture to say that one aspect of arranged employment as applicable to Mr. Gill, a non-resident, was that an officer approve an offer of employment "based on an opinion provided to the officer by the Department of Human Resources Development...that the offer of employment is genuine" (Immigration and Refugee Protection Regulations, s. 82(2)(b)(ii)). The Minister suggests that the opinion by the Department is simply a condition precedent to the Visa Officer's assessment de novo. Reliance is placed upon the decision of Madam Justice Snider in Bellido v. Canada (Minister of Citizenship and Immigration), 2005 FC 452, where she stated at paragraph 21:
HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation.
16 Read in conjunction with s. 82(2) of the Regulations, which requires the officer to assess whether a skilled worker is able to perform and is likely to accept and carry out the employment, that case certainly stands for the proposition that the Visa Officer must determine whether the applicant is up to the job. In this case the Officer not only found that Mr. Gill was not up to the job, but when all was said and done also was of the view that the job offer was not genuine. Whether a Visa Officer in India is entitled to override the Department's opinion based on an investigation in Canada that the offer is genuine is best left for another day.
17 Both counsel agreed that there was no question of general importance to certify and that if I were minded to grant judicial review I should simply refer the matter back to another officer for re-determination, and not in any way give directions limiting the reassessment to the residency of Mr. Gill's brother-in-law.


a. The application for judicial review is granted;
b. The matter is referred back to another visa officer for redetermination;
c. There is no question of general importance to certify.



I have written many times about the issue of criminal inadmissibility. Some people assume that a minor offence does not pose a problem to enter Canada. They are wrong. If anyone still has nay doubts, see this story published today by Canadian Press. People who have criminal convictions should ALWAYS consult an immigration lawyer prior to travelling to Canada.

Baseball players with arrests or convictions warned about trips to Canada

By Ronald Blum (CP) – 12 hours ago

NEW YORK, N.Y. — The baseball players' association has warned members with criminal convictions or arrests to contact the union before trying to enter Canada.
Doyle Pryor, a union assistant general counsel, sent a memo to agents Thursday titled "immigration problems for players entering Canada." A copy of the memo was posted on and later obtained by The Associated Press.
"Individuals who are not Canadian citizens may be detained at the border and, in certain cases may not be permitted to enter Canada at all, if they have any sort of past criminal record," he wrote. "Recently, Canadian authorities have stepped up enforcement of these laws, resulting in several non-Canadian players travelling to Toronto with their teams being detained at the border because of a past criminal record."
He warned that "even an arrest, conviction or suspended sentence many years ago for a minor crime, or a juvenile offence, can result in a border detention."
Three upcoming series at the Blue Jays are specified, involving Baltimore (May 28-30), Tampa Bay (May 31-June 2) and the New York Yankees (June 4-6).
"Disclosure of past criminal records can have potential employment ramifications for players, so you should advise players with such issues to contact the players' association for advice before disclosing any past criminal record to anyone else, including their travelling secretary or any other club official," Pryor wrote.
"Waiting until the last minute to address this issue may jeopardize the player's ability to enter Canada with his teammates and could result in discipline by the club."
A pamphlet of information from Canadian immigration was attached to the memo.
"There are certain offences in Canada that are considered more major than they are in the United States," Orioles team travel co-ordinator Kevin Buck said. "Specifically, we were advised that things like DUI and that sort of thing are considered a felony in Canada. So we've just got to be careful about making sure we're aware of anything that anybody in our travelling party might have in their past to prepare for it before we head north."

Friday, May 14, 2010


This is a very interesting and unusual case. The applicant was not directly "employed" but rather "rendered services" through a corporation where he was the main shareholder and director. While the court seems to be wrong in characterizing what constitutes "work" in this context, it still upheld the refusal based on the applicant's lack of credibility and prior conduct. If the court were right in its interpretation of the "shareholder/ director" work, anyone could incorporate a personal services company, and have a third party "employer" pay the company rather than the employee directly. In other areas of law, such as taxation, this "corporate veil" could be pierced and the relationship construed as that of "employer-employee" without much difficulty. Immigration law is no different.

Ozawa v. Canada (Minister of Citizenship and Immigration)

Junji Ozawa, Applicant,
The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 515
2010 FC 444Docket IMM-5104-09 Federal CourtVancouver, British ColumbiaZinn J.Heard: April 15, 2010.Judgment: April 26, 2010.
(34 paras.)


1 ZINN J.:-- This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27, of a decision by a Visa Officer rejecting Junji Ozawa's application for a work permit. For the reasons that follow this application is dismissed


2 Junji Ozawa is a citizen of Japan. He is a hair stylist and also a shareholder in Hack Enterprises Inc. d.b.a. Hive Hair Spa, which is incorporated in the province of British Columbia.
3 Mr. Ozawa came to Canada on February 2, 2007 on a working holiday visa and worked as a hair salon manager and stylist. This visa expired on February 1, 2008. Mr. Ozawa overstayed this visa, but applied for restoration of status on April 24, 2008. On July 21, 2008, he was issued a visitor visa valid until August 1, 2008. Mr. Ozawa again overstayed his visa, which was again restored, this time until March 15, 2009. He left Canada on March 13, 2009 and returned on April 3, 2009. He was granted a 6 month visitor visa (valid to October 3, 2009) at the Vancouver International Airport.
4 Mr. Ozawa attempted to obtain a Labour Market Opinion to work as a salon manager for his business, but this application was rejected on the basis that he, the applicant, was effectively self-employed. Mr. Ozawa was instructed to apply directly to the visa office.
5 On June 10, 2009, a section 44 Report was issued against Mr. Ozawa on the basis that he had been observed working at his business without a valid work permit. This report was never challenged by the applicant. An admissibility hearing was never held because Mr. Ozawa departed voluntarily from Canada on July 13, 2009. Before leaving, Mr. Ozawa submitted a work permit application to the Canadian Embassy in Tokyo, Japan.
6 On July 21, 2009, the officer rejected Mr. Ozawa's application for a work permit. The officer determined that "based on a careful review of the information" provided, the applicant did "not meet the requirements of [sic ] for a work permit."
7 The officer determined that the applicant was unlikely to leave Canada at the end of his temporary stay because he had a history of overstaying and contravening the Act and because he had poor employment prospects in Japan. Further, the officer determined that the applicant had not "answered all questions truthfully" as is required by subsection 16(1) of the Act. In particular, the officer questioned how the applicant could list his current employment in Japan as having a duration of 12 months when he was in Vancouver within that period.
8 The officer also determined that the applicant had engaged in unauthorized work in Canada and had overstayed his visa. The officer concluded, on the basis of subsection 200(3)(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227, that the applicant was therefore barred from being issued a work permit until January 13, 2010.
9 Consequently, the officer rejected the applicant's application for a work permit. It is this decision that the applicant asks this Court to set aside.
10 The applicant raises the following issues:
1. What is the standard of review;
Whether the officer err in law because she ignored or misconstrued key evidence; and
3. Whether the officer breached the principles of natural justice.


1. What is the standard of review?

11 Both parties agree, as do I, that questions of natural justice are reviewed on the correctness standard: Level v. Canada (Minister of Citizenship and Immigration), 2008 FC 227, and factual determinations are reviewed on the reasonableness standard: Dunsmuir v. New Brunswick, 2008 SCC 9. Accordingly, the standard of review for the second issue above is reasonableness and the standard for the third issue above is correctness.

2. Whether the officer err in law because she ignored or misconstrued key evidence.

12 The applicant submits that the officer's decision was unreasonable because his temporary resident status was restored and he therefore did not overstay his visa as the officer determined. The applicant further submits that the officer's decision was unreasonable because she failed to consider the requirements of the departmental guidelines that require more flexibility for self-employed applicants, such as Mr. Ozawa. The applicant contends that it is not clear on what basis the officer determined that he would not leave Canada because the subcategory boxes were not checked. The applicant argues that communication issues with the immigration officer impugn the section 44 Report that was issued.
13 The respondent submits that any mistakes the officer made do not impugn the determinative aspects of his decision. The respondent contends that the applicant cannot, at this stage, challenge the section 44 Report issued against him and, in any event, it was properly issued. The respondent submits that the following conclusions were reasonably made: that the applicant had contravened conditions of his admission by working without a work permit and that he had been untruthful on his application. The respondent submits that these findings are determinative of the application.
14 It is evident to me that the officer made a number of errors in assessing the applicant's application for a work permit.
15 The officer incorrectly stated that the applicant had previously overstayed his temporary resident visas. The Regulations provide that a restoration of one's temporary resident status has the legal effect of curing any breach of the length of stay requirement inherent in the original temporary resident visa. Thus, where an applicant, such as Mr. Ozawa, successfully restores his or her temporary resident status, it cannot be said, as this officer did, that they overstayed.
16 The officer's error in this regard undermines much of her determination that the applicant would not leave after the expiration of his work permit.
17 Where the officer did not err was in her assessment of the applicant's credibility and prior violation of his temporary resident status conditions. The officer drew reasonable negative inferences based on the applicant's misrepresentation on his application and based on inconsistencies in that application. The applicant states that his mistakes are explainable, but he provided the officer with no such explanation. It was reasonable for the officer to base her decision, in part, on these negative credibility inferences.
18 More importantly, the officer's reliance on the section 44 Report on Inadmissibility that was issued against the applicant was both valid and determinative of the underlying application. A section 44 Report was issued because a different officer observed the applicant "cutting hair" at the business without a work permit. He told the officer who attended at his premises that he did 3 to 4 hair cuts each day he is at the salon. The applicant argues either that that officer made a mistake in her assessment or that he was not in law "working" because he was not an employee of the business.
19 The applicant never challenged the validity of the section 44 Report because he voluntarily left Canada. Because he left Canada, an admissibility hearing was never conducted by the Immigration Division of the Immigration and Refugee Board. As a result, a formal finding of inadmissibility was never made against the applicant and a removal order was never issued. The applicant provided an affidavit in which he attests that "At no point [was] I served by [sic ] any document by the Canadian Border Services Agency (CBSA) or signed any document to the effect that I was found engaged in unauthorized work in Canada." However, the record contains a copy of the section 44 Report together with a direction to attend at an interview. The applicant quickly obtained legal counsel who thereafter communicated with the respondent. In such circumstances, it cannot be reasonably maintained that he was unaware of the content of the section 44 Report.
20 The section 44 Report was made on the basis that the applicant had worked without a work permit in violation of the Act and Regulations.
21 "Work" is defined in section 2 of the Regulations as follows:
"work" means an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.
* * *
"travail" Activité qui donne lieu au paiement d'un salaire ou d'une commission, ou qui est en concurrence directe avec les activités des citoyens canadiens ou des résidents permanents sur le marché du travail au Canada.
22 Juneja v. Canada (Minister of Citizenship and Immigration), 2007 FC 301, which is relied on by the respondent for the proposition that the applicant was engaged in work, is distinguishable from the facts at hand. In Juneja, the applicant entered into a contingent wage agreement with a car dealership whereby he began working but was not paid wages. The agreement between the parties was that the applicant would be paid in the future, for his unpaid hours, if and when he obtained a work permit. The Board determined that this was "work" within the meaning of the Regulations. Justice Barnes upheld this determination on judicial review.
23 In this case, there was no contingent wage agreement. It is not clear at all whether the applicant may be considered to be an employee of the business. What is clear is that he is both a shareholder and director of the corporation. In my view, the definition of "work" in the Regulations may not capture the normal activities of shareholders or directors where they are not paid wages or commissions for these activities. However, as soon as a shareholder or director provides a service to the corporation that is outside the normal role of a shareholder or director, that person "is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market" and is therefore "working" within the meaning of the Regulations. Such service provided by the shareholder or director could have been purchased by the corporation from a Canadian citizen or permanent resident and its provision therefore constitutes work.
24 The officer observed the applicant cutting hair. This activity would constitute "work". In any event, the applicant did not seek judicial review of the section 44 Report, and therefore it was reasonably open to the officer in this case to rely on that report's conclusion that the applicant had been observed working without a permit in contravention of the Act and Regulations.
25 Subsection 200(3)(e) of the Regulations states:
the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless
a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition,
the study or work was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c);
section 206 applies to them; or
the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act.
* * *
il a poursuivi des études ou exercé un emploi au Canada sans autorisation ou permis ou a enfreint les conditions de l'autorisation ou du permis qui lui a été délivré, sauf dans les cas suivants :
une période de six mois s'est écoulée depuis les faits reprochés,
ses études ou son travail n'ont pas été autorisés pour la seule raison que les conditions visées à l'alinéa 185a), aux sous-alinéas 185b)(i) à (iii) ou à l'alinéa 185c) n'ont pas été respectées,
il est visé par l'article 206,
il s'est subséquemment vu délivrer un permis de séjour temporaire au titre du paragraphe 24(1) de la Loi.
26 Relying on the section 44 Report as evidence that the applicant had engaged in unauthorized work, the officer determined that the Regulations prevented her from issuing a work permit until January 13, 2010. Implicit in this determination is a finding that subsections (ii)-(iv) did not apply to the applicant and that the applicant did not cease his unauthorized work until the date he left Canada on July 13, 2009. The applicant does not raise any challenge to the implicit application of subsections (ii)-(iv), and I can see no reason why he would be captured by these subsections. Giving the applicant the benefit of the doubt, and presuming that he ceased working without authorization as of the date of the section 44 Report, on June 10, 2009, the officer was legally barred from issuing him a work permit until after December 10, 2009.
27 The officer's decision was rendered July 21, 2009 and therefore no result other than a rejection was legally permissible. Not only was the officer's decision reasonable, it was the only decision that she could have reached. On this basis, this application for judicial review must be dismissed.

3. Whether the officer breached the principles of natural justice.

28 The applicant submits that the officer breached natural justice by failing to give him an opportunity to respond to his concerns and by signing the refusal letter as a "visa officer" when in fact she was a "non-immigrant officer".
29 I agree with the respondent that the officer was not relying on information that was not in the possession of the applicant; she was relying on the applicant's own submissions. As this Court has stated in Arwinder Singh v. Canada (Minister of Citizenship and Immigration), 2009 FC 621, a visa officer is only obligated to conduct an interview where she has information of which the applicant is not aware. Not only was the applicant aware of these facts, they were within his own submissions. The onus was on the applicant to explain the apparent inconsistencies in his application and he must bear the risk of rejection when he fails to do so. Natural justice did not require the officer to conduct an interview of the applicant in the circumstances of this case.
30 The submission with respect to the title used by the officer in the decision is also without merit. How the officer signed the refusal letter has no impact on the fairness provided to the applicant. The case relied on by the applicant, Valentinov v. Canada (Minister of Citizenship and Immigration) (1998), 143 F.T.R. 46 (T.D.), was decided under the old Act and is not applicable to the current Act. The respondent is correct that "visa officer" is not a defined term under the Act or Regulations, and that a "non-immigrant officer" has the jurisdiction to issue the decision under review in this application.
31 The applicant acknowledged at the hearing that the section 44 Report barred the officer from issuing the applicant a work permit for a period of six months. Counsel stated that the applicant's concern was the finding that he had overstayed his temporary resident visa, and that this finding would colour any subsequent application. Counsel for the respondent conceded that the officer erred in that respect and that the actions taken by the applicant meant that he had not, in law, overstayed the visa. I have agreed with that characterization and thus, the applicant ought not to have this false finding adversely affect any future application.
32 However, the applicant was found to have worked without authorization. He was also found to have provided inconsistent and untruthful answers on his application. These findings were reasonably made and support the officer's refusal of the applicant's work permit application even though the officer erred in finding that the applicant had previously overstayed his visas. It cannot be said that the decision on his visa application was unreasonable.
33 In the circumstances of this case, the officer was not obligated to conduct an interview to provide the applicant an opportunity to explain the apparent inconsistencies in his application material. If an explanation was available, as the applicant now asserts, the onus was on him to provide it with his application materials. The officer did not breach the applicant's right to natural justice.
34 This application for judicial review is dismissed. Neither party proposed a question for certification; no question meets the test for certification on the facts disclosed in the record.


1. This application for judicial review is dismissed; and
2. No question is certified.


Tuesday, May 11, 2010


This is a very unusual and somewhat strange adoption case of an adult. It appears that the decision may be wrong in law and may open some of the floodgates set up by previous court decisions to prevent the use of adoption law to circumvent immigration law. Unfortunately, because this is simply an endorsement of the record, the court does not describe in detail the surrounding circumstances of the adult child and does not mention if the adult child has pursued a permanent residency application.

C.T.A. (Re)

RE: C.T.A. Adoption Application

[2010] O.J. No. 1738
2010 ONSC 2222Court File No. FA-10-013
Ontario Superior Court of Justice
J. Mackinnon J.
Heard: By written submissions.Judgment: April 15, 2010.
(17 paras.)



A. Introduction

1 This is an application by the C.'s to adopt an adult child, C.T.A. The C's are spouses. The child was born in the Philippines and became their foster child under the Foster Parents Plan of Canada in 1994 at the age of 11 years. During the intervening years, the C.'s developed a close relationship with C.T.A. In 2003, the C.'s visited C.T.A. and her family in the Philippines. Two years later, C.T.A. came to visit them in Ontario. The C.'s financed C.T.A.'s university education in the Philippines. When C.T.A. was experiencing difficulty finding suitable employment, they invited her to come here to study. C.T.A. arrived in Ontario in February 2007 as an international student. She completed intensive English language training and then enrolled in a Business Administrative program at Algonquin College. She will graduate this spring and already has an offer of full time employment.
2 Both C.T.A. and her parents in the Philippines have filed affidavits in support of and consenting to the proposed adoption.

B. Issues Raised by the Application

3 This adoption application, although unopposed, raises four legal issues. These are:
1. Whether an Ontario resident as required by s. 146(5) of the Child and Family Services Act1;
2. Whether the application is brought for a collateral purpose related to immigration status;
3. Whether the essential purpose of adoption, namely to fill a parental gap, is met; and,
4. Depending upon the resolution of the first three issues, the court may proceed to consider whether the proposed adoption will promote the adult child's best interests, protection and well being.

C. Residence

4 The word "residence" does not have a single, legal definition. It is considered to pose a question of fact to be determined in the context of the specific legislation. In Re Rai2, the Ontario Court of Appeal considered the residency requirement under the adoption provisions of the Child Welfare Act3 then in force. The Court held at pp. 5-6:
Residence is not established by mere presence in the Province on a casual visit, or while passing through. Indeed, in such a case, our Courts would decline jurisdiction to change the status of a person belonging to another civilized country because of the respect we have for the laws of that country. But, apart from exceptional cases, the purpose of the statutory requirement of residence will have been met if there is a reasonable connection between the child and Ontario, and if the child has lived here for sufficient time to enable an effective investigation to be made into the suitability of the adopting parents and whether the proposed adoption order would be in the best interests of the child.
In the present case, the child is no longer a mere visitor, whatever may be her technical status under the Immigration Act. She has lived in Ontario with permanent residents since her arrival on February 27, 1977, in the hope of adoption, and she attends school as a regular student. I think she has met the jurisdictional requirement that she reside in Ontario and that the application for adoption ought to have been dealt with on its merits.
5 C.T.A. has lived in Ontario with the C.'s for over three years, since February 2007. She has attended school and worked part time since then. She holds an Ontario driver's license. Her plan is to obtain full time employment upon graduation under a work permit, and after the one year requisite period, to apply for permanent residence status as is permitted under the Canadian Experience Class Program of the Immigration and Refugee Protection Act4.
6 On these facts, C.T.A. meets the statutory requirement for residence in Ontario.

D. Collateral Purpose

7 In Re K.5, the Ontario Court of Appeal ruled that if an adoption order is sought to satisfy requirements of immigration law, such an order would not fall within the intent and purpose of provincial adoption legislation. The Court held that where proposed adoption "has the appearance of an accommodation adoption to get around the stringencies or requirements of the Immigration Act, R.S.C. 1970, c. I-2, and the Court and the provincial legislation should not be used as a means to achieve that end."
8 I am satisfied that the application before the court is bona fide. The relationship between the Applicants and C.T.A. has endured for 16 years. It commenced as an international foster parent/child relationship and has grown since that time. The relationship provides an underlying basis for the proposed adoption, independent of C.T.A.'s immigration status here.
9 The Applicants have no other children. They have formed a close parental bond with C.T.A. over the past 16 years. C.T.A. has referred to them as Mom and Dad for some 10 years. The Applicants have provided C.T.A. with financial support and guidance over a long period of time. The three have lived as a family for the past three years. This case is not at all similar to Re K. where the Court found that "the adoption of one brother by another with a 10-year age difference ... appears to us to be inconsistent with the intent of ... of the Child Welfare Act."6 Nor is it similar to Re S.W.7 where the relationship was of one year duration previous to which, the applicant and adult child had only known each other as pen pals.
10 In addition, C.T.A. has lived in Ontario for over three years under a student visa. When she graduates, she is entitled to apply for a post graduate work permit that would allow her to continue to reside and work her for up to three additional years. It is likely that after one year full time employment that she will qualify under the Canadian Experience Class Program to apply for permanent residence status. Accordingly, while the Court of Appeal has also stated that the status of a child under immigration laws does not affect the jurisdiction of the court, it is relevant to consider in determining "whether the applicants really intend to create a new relationship of parent and child, or whether the statute is being used for a collateral purpose."8
11 Based on the evidence before me, I find that this application is bona fide and is not for collateral purposes related to C.T.A.'s immigration status. If the adoption order is granted, it may be the basis to accelerate the timing of C.T.A.'s application for permanent resident status, but the facts are such that eligibility for that status is probable in any event.

E. Parental Gap

12 Re Proposed Adoption of A.L.K.Q.9 held that the evidence in support of an adult adoption must satisfy the court that there is a parental gap that needs to be filled; that the biological relationship should be replaced by a new parent-child relationship in the form proposed by the applicant.
13 C.T.A.'s parents are alive and well and living in the Philippines. In all, they have nine children and are described as living in poverty. With legal advice, they consent to the proposed adoption of C.T.A. They state that they know of C.T.A.'s intention to reside permanently in Ontario and agree with that decision. C.T.A. states that for the past three years and more, the C.'s have provided her with the parental guidance, advice and support that she needs as a resident of Ontario. Her own parents would be incapable of doing so given their own limitations as to experience with this culture, and social and work environments. C.T.A. acknowledges that she will always have family in the Philippines, but that her parents are here, and are the C.'s.
14 The C.'s describe in detail the building of their parental relationship to C.T.A. over the years. They describe the help they have given her to adjust to and learn about life in Ontario. They agree that her parents are not equipped to provide C.T.A. with meaningful guidance as to her personal, professional and cultural life in Ontario.
15 In my view, there is a clear parental gap in C.T.A.'s life as she has, with valid reasons, chosen it to be. The C.'s are ideally suited to fill that gap. Although C.T.A. is an adult, in her circumstances, she will clearly benefit from the parental guidance and support that the C.'s can provide her in the years to come. In my view, the proposed adoption is, in its essence, designed to provide C.T.A. with the parental relationship that she needs and that is missing in her new life in Ontario.

F. Best Interests

16 The proposed adoption is in C.T.A.'s best interests. It will provide her with a strong parent-child relationship well equipped to assist her in all aspects of her life. It meets the essential requirement of an adoption, namely, to fill the parental void left by great geographic distance and unfamiliarity with the local economic and cultural environment that C.T.A. has chosen to live in. The proposed adoption is authentic and not for any improper collateral purpose.

G. Decision

17 An order will go allowing the adoption of C.T.A. by the C.'s, as asked.


Tuesday, May 4, 2010


In this recently released case, the court confirmed that the visa officers have discretion to consider past immigration history in applications for new visas.

Bravo v. Canada (Minister of Citizenship and Immigration)

Jairo Arias Bravo, Applicant,
The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 480
2010 FC 411Docket IMM-3899-09 Federal CourtOttawa, OntarioGauthier J.Heard: April 13, 2010.Judgment: April 15, 2010.
(28 paras.)


1 GAUTHIER J.:-- Mr. Jairo Arias Bravo seeks judicial review of the decision rejecting his application for a work permit. The applicant, a citizen of Costa Rica, first came to Canada on October 21, 2002 as a visitor. He overstayed his three-day visa. Several months later, on August 18, 2003, he made a refugee claim, which gave him the ability to work in Canada. He worked for Bryson Farms, an organic farm outside Shawville, Québec. His refugee claim was rejected on June 8, 2004. He sought judicial review in the Federal Court, but leave was denied on September 15, 2004. On November 27, 2004 he left Canada. His plane ticket was purchased by Bryson Farms.
2 Even though his departure was voluntary, s. 240 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) deems the removal order against him to have been enforced. This means that, under s. 52(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), he requires an Authorization to Return to Canada (ARC).
3 In 2006, he applied for a work permit, and was rejected because he worked illegally for the employer who was now offering him work and the officer was not convinced that he would go back to Costa Rica at the end of the period. However, Bryson Farms has continued to want to employ him. It appears that his combination of farming experience and language skills is unique. Accordingly, in late April 2009, Mr. Arias Bravo, with the assistance of a legal representative, made another application for a work permit.
4 Among other documents, he submitted to the Canadian Embassy in Guatemala1 a covering letter from his lawyer relating to the work permit, a form IMM-1295 (Application for a Work Permit), a Labour Market Opinion confirmation, as well as another letter from his legal representative applying for an ARC. It is notable that the fee for the work permit application was included in the package, whereas the fee for the ARC application was not.
5 The processing of the application for the work permit started shortly after the dispatch of the package for it appears that by May 14, 2009 Mr. Arias Bravo had been asked for a copy of some further documents.2
6 Also, according to a CAIPS notes entry on May 21, 2009, it appears that the applicant provided some verbal explanations as to why he applied for refugee status and that his intentions were to work for periods of seven months per year and return to Costa Rica. He needs to earn money to pay for private university. It is not clear if this information was divulged in the context of a formal interview or not. On May 19, 2009 a receipt for the $150 fee was issued to him. There is no indication that the applicant referred to the ARC application or that he offered to pay the fees related to said application.
7 The immigration officer at the Canadian Embassy denied Mr. Arias Bravo's application. On the one-page refusal letter a box stating "You have not demonstrated that your stay in Canada will only be temporary and that you will return to your country at the end of your temporary employment" was checked.
8 The applicant argues that the immigration officer failed to consider all the relevant evidence, particularly the information contained in his ARC application that could support his work permit application. He also says that the reasons given for the refusal are insufficient and constitute a breach of the officer's duty of procedural fairness. Finally, he submits that the decision was unreasonable because the officer only focused on the negative aspects of his immigration history rather than the fact that he voluntarily left Canada after the decision rejecting his application for leave to seek judicial review of the decision rejecting his refugee claim was issued. Also, there is no discussion of his expertise and the urgent need of Bryson Farms.
9 The standard of review of decisions of immigration officers reviewing temporary work permit applications is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.CR. 190 (Dunsmuir); Kachmazov v. Canada (Minister of Citizenship and Immigration), 2009 FC 53 at para 8; Li v. Canada (Minister of Citizenship & Immigration), 2008 FC 1284, 76 Imm. L.R. (3d) 265 (Li) at para. 14). Questions of procedural fairness are reviewed on a standard of correctness (Li, at para. 17; Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 at para. 65).
10 With respect to his first argument, the applicant initially relied on the fact that the CAIPS notes do not mention the ARC application to support his view that said submissions were not considered at all. However, when the certified record was filed, it became apparent that the officer had the said application in the file before him or her.
11 I do not need to decide whether, in the case of other applicants, the work permit or the ARC application should be considered first if the two said applications are duly completed and the fees paid in accordance with s. 294 of the Regulations. Certainly, it would be inappropriate to reject someone's work permit application on the basis that they are not allowed to return to Canada under subs. 52(1) of IRPA if they simultaneously filed an ARC application. That, however, was not the case here; as mentioned, although the CAIPS notes indicate that Mr. Arias Bravo was deemed deported and not admissible to Canada, the reason for rejecting his application was that there were concerns about him being a bona fide "visitor".
12 There was a fundamental problem with the ARC application in this case. The $400 fee was not sent with the documentation. Instead, the legal representative was seeking directions from the Embassy on how to pay it. It would seem that, in the absence of more specific instructions on the Embassy web site, or elsewhere, her client could have paid the fee in the same way that the work permit fee was paid. This is especially so when one considers that in his written representations, the applicant states that he personally delivered both applications to the Embassy. That said, given that the fee for the ARC application was not paid, it seems that the Embassy had little choice but to process the work permit application first and they cannot be faulted for adopting this course of action.
13 There is no affidavit from the immigration officer as to what he or she did or did not do. However, there is a presumption that the decision maker reviewed all the evidence before him or her. Whether the officer should have referred to this application specifically in the reasons will be discussed when looking at the second argument put forth by Mr. Arias Bravo.
14 However, even if the Court were to assume that the presumption was rebutted here, the Court is not convinced that, in the particular circumstances of this case, the officer had to consider the information contained in the ARC application for the applicant failed to indicate that the said representations were relevant to his work permit application per se.
15 The covering letter to the work permit application does not make any reference to the ARC application. As mentioned, there is no indication that the applicant referred to said application when he spoke with an officer on May 19, 2009. Although his ARC application does mention that he has submitted an application for a work permit (presumably the context for requesting the ARC), it does not mention that its contents should be considered in assessing the work permit application. In addition, on his IMM-1295 form, when asked to provide details about whether he'd been "refused admission to, or ordered to leave Canada," the applicant gave a cursory, two-sentence answer (in Spanish) referring to his failed refugee claim in 2005 and his first request for a work permit in 2006. Again, there was no reference to the ARC application or to the fact that it contained explanations relevant to the refusal of his first work permit in 2006.
16 Moreover, as noted by the respondent, the immigration officers authorized to review work permit applications abroad do not necessarily have the authority to grant an ARC. In effect, in the international region, only an immigration program manager is vested with such authority. The fact that a limited number of people can review such applications as opposed to issue work permits is clearly mentioned at s. 6.5 of Chapter 1 of the Overseas Processing Operational Manual filed by the applicant (p. 27). Thus, it may be that the officer assessing the work permit application saw the ARC application on file and, knowing that he or she had no authority to decide it, set it aside to be forwarded to the appropriate person if he or she decided that the applicant was otherwise eligible for a work permit. Again, in the absence of some indication that the ARC submissions were directly relevant to his or her task in assessing the work permit application, the Court is not prepared to conclude that this would constitute a reviewable error.
17 Turning now to the argument that the reasons justifying the refusal were insufficient, it is well-established that the degree of procedural fairness required in the context of a work permit application from abroad is minimal:3 Qin v. Canada (Minister of Citizenship and Immigration), 2002 FCT 815 at para. 5; da Silva v. Canada (Minister of Citizenship and Immigration), 2007 FC 1138, 161 A.C.W.S. (3d) 974. This reflects the fact that Mr. Arias Bravo, like similar applicants, is free to apply for another work permit, on the basis of improved information and documentation, at any time.
18 The CAIPS notes, which are part of the reasons (see, e.g., Kalra v. Canada (Minister of Citizenship and Immigration), 2003 FC 941, 29 Imm. L.R. (3d) 208 at para. 5), contain a summary of the application as well as information received from Mr. Arias Bravo. The officer certainly was concise and not perfectly informed given that he or she refers to the fact that the applicant made a PRRA application whereas it is evident from p. 74 of the certified record that the applicant had indeed waived that right before leaving Canada in 2004. That said, his or her reasoning is clear enough, he or she looked at the immigration history of Mr. Arias Bravo and was not satisfied that he met the criteria set out at para. 200(1)(b) of the Regulations.
19 To obtain his work permit pursuant to s. 200 of the Regulations, the applicant had the burden of establishing not only that he had a genuine job offer and a positive Labour Market Opinion, but also that he would leave Canada by the end of the authorized period of his stay. The good faith and intention of Bryson Farms are not at issue here. They are simply not relevant.
20 Given the minimal duty of fairness owed in this case, I find that the decision does meet the requirement to provide reasons even if barely.
21 The case of Hara v. Canada (Minister of Citizenship and Immigration), 2009 FC 263, 79 Imm. L.R. (3d) 27 is distinguishable on its facts. Moreover, there was nothing of such significance in the ARC application that it would require specific mention in the decision. In cases such as this, the officer simply does not have to explain how he or she dealt with the positive aspects of the application, he or she only needs to explain why the permit is not granted so that the matter can be judicially reviewed, if need be.
22 Finally, Mr. Arias Bravo maintains that the decision is unreasonable. It is trite law that on judicial review, when assessing the validity of a decision, the Court must confine itself to the evidence before the original decision maker: see, e.g., McNabb v. Canada Post Corp., 2006 FC 1130, at para. 51.
23 The applicant submitted an affidavit from Ronalee Carey, a legal assistant, in which she states: "[Bryson Farms] wished to support Mr. Bravo's application for permanent residence to Canada, but Mr. Bravo indicated that he preferred to return to Costa Rica every year in order to assist in his family's farming operation. In addition, he did not want to spend winters in Canada."
24 If Bryson Farms was willing to assist him with an application for permanent residence in the skilled worker class, and Mr. Arias Bravo would have had the requisite number of points (something that was not argued before me) to qualify, then it seems that his decision not to pursue permanent residence strongly suggests that he intends to return to Costa Rica at the end of every growing season. However, as far as I can tell, this relevant evidence was not before the officer: it is not in the letters from the applicant's legal representative, nor was the affidavit of Ms. Carey or, ideally, one from the owners of Bryson, submitted with the work permit application.
25 It is well-established that one's past history with Canadian immigration officials is one of the best indicators of their likelihood of future compliance (Murai v. Canada (Minister of Citizenship and Immigration), 2006 FC 186, 53 IMM. L.R. (3d) 218 at para. 12). In Mr. Arias Bravo's case, his history is at best ambiguous, if not troubling: in 2002-2003, he first misrepresented his intentions in order to obtain a visitor visa (see p. 103 of the certified record), then made a refugee claim only to acquire a work permit (see p. 4 entry for May 21, 2009). That certainly distinguished his case from others referred to by his counsel. It may (or may not) be that he has since learned from his mistakes, but this was what he had to show.
26 The applicant is single, he has few assets in Costa Rica (bank balance of $1,894.71 (USD)) and his only tie to Costa Rica appears to be his parents' farm.4 Thus, having reviewed the record before the officer, and considered particularly the representations made in the ARC application, the Court cannot come to the conclusion that the decision falls outside the "range of possible, acceptable outcomes which are defensible with respect to the facts and law" (Dunsmuir, at para. 47).
27 The application for judicial review is therefore dismissed. Mr. Arias Bravo, naturally, is free to make another application for a work permit including the kind of new information put before the Court (see para. 24, above).
28 The parties did not submit any questions for certification and the Court is satisfied that this case turns on its own facts.


1. The application is dismissed.