DEPORTATION ORDERS INEFFECTIVE

Here is an example of a situation that should never be allowed to occur. How does a serial convicted criminal with an extensive record in both the US and Canada manage to enter the country regularly after being deported 10 times? Good question. I have clients who have been turned around at the border for a simple misdemeanor for which they paid a small fine and CBSA made a big deal out of it. I think that they need to have their priorities examined.

R. v. Willis

Between
Her Majesty the Queen, and
Kirk Willis

[2010] O.J. No. 3930

Ontario Court of Justice
Toronto, Ontario

J.J. Keaney J.

April 21, 2010.
(205 paras.)
Charges: Immigration Act

Counsel:
Counsel for the Crown: V. Goela, Ms.
Counsel for the accused: E. Scofield, Esq.

________________________________________

GUILTY PLEA PROCEEDINGS
1 J.J. KEANEY J.:-- Is this your client, Mr. Scofield?
2 MR. SCOFIELD: Yes, it is, Your Honour.
3 THE COURT: Yes, Ms. Goela.
4 MS. GOELA: Goela.
5 THE COURT: Goela. Sorry.
6 MS. GOELA: Thank you. Your Honour, this is Mr. Willis in the prisoners' box.
7 THE COURT: Good morning, sir.
8 MS. GOELA: I understand that this is going to be a guilty plea.
9 THE COURT: Is that the case, Mr. Scofield?
10 MR. SCOFIELD: That's correct, Your Honour.
11 THE COURT: Mr. Scofield, is there any need for me to conduct a plea comprehension inquiry?
12 MR. SCOFIELD: No. The accused has been through this before, Your Honour, and he knows well that the ultimate sentence is entirely up to you. He knows that he's got no defence to these charges.
13 THE COURT: Thank you. Madam Clerk, you can proceed, please, to arraign.
14 CLERK OF THE COURT: Thank you, Your Honour. The Crown has an election. How are you electing?
15 MS. GOELA: Indictment.
16 CLERK OF THE COURT: Mr. Scofield, does your client wish the trial election read to him?
17 MR. SCOFIELD: No.
18 CLERK OF THE COURT: What forum does he elect to proceed?
19 MR. SCOFIELD: He elects to proceed by a judge of the Ontario Court of Justice, namely His Honour here today.
20 CLERK OF THE COURT: Thank you. Kirk Willis stands charged sometime between the 18th day of November, 2009, to the 7th of February, 2010, at the City of Toronto, in the said Region, or elsewhere in Canada ... Mr. Willis, are you listening?
21 THE ACCUSED: Yes, ma'am.
22 CLERK OF THE COURT: Thank you.
23 THE ACCUSED: I apologize.
24 CLERK OF THE COURT: ... did contravene the provision of the Immigration and Refugee Protection Act, to wit: being a person against whom a removal order was made and having been removed from Canada, or having left Canada, unlawfully did come into Canada without the authority of an Immigration Officer, as required by Section 52(1) of the said Act and thereby did commit an offence contrary to paragraph 124(1)(a) of the said Act.
25 Sir, how do you plead to this charge as arraigned, guilty or not guilty?
26 THE ACCUSED: Guilty.
27 CLERK OF THE COURT: You may have a seat.
28 THE COURT: Thank you, Mr. Willis. Please have a seat. Please listen carefully to what the Crown has to say.
29 THE ACCUSED: Yes, sir.
30 MS. GOELA: On February 7th, 2010, the accused, Kirk Willis, with a date of birth of February 1st, 1962, was arrested by the Highway Safety Division of the Ontario Provincial Police Toronto Detachment for obstructing a peace officer and exceeding 80 milligrams of blood alcohol content while being in a motor vehicle.
31 At the time of his arrest, he gave the name of Paral J. Paris with a date of birth of February 1st, 1962. The accused later advised officers of his correct name and investigation confirmed that the accused has no legal status in Canada.
32 The accused stated to Canada Border Services Agency Inland Enforcement Officers that he had driven across the border from the United States into Canada.
33 Mr. Willis has also been previously deported from Canada on ten separate occasions, December 1982, April 1993, April 1997, June 2000, June 2001, January 2002, October 2002, September 2004, August 2007, and the last time Mr. Willis was deported from Canada and his departure was confirmed was on November 18th, 2009.
34 Mr. Willis requires the written authorization of an immigration officer to return to Canada. He has again not sought, nor has received the consent to return to Canada.
35 Mr. Willis also has an extensive criminal history in Canada and the United States. He has been convicted five times previously for returning to Canada without authorization.
36 On February 26th, 2010, a criminal investigator with the Canada Border Services attended the holding cells of Old City Hall and arrested the accused, charging him with one count of returning to Canada without authorization, Section 124(1)(a) of the Immigration and Refugee Protection Act. He was given his Charter rights, his cautions, his Vienna convention rights, which he all fully understood.
37 Mr. Willis was then transferred to 103 court for a bail hearing. He's the subject of a deportation order and will be removed at the end of the judicial proceedings.
38 Those are the allegations.
39 THE COURT: Mr. Scofield, are those substantially correct?
40 MR. SCOFIELD: They are, Your Honour.
41 THE COURT: Stand up, please, Mr. Willis. I accept your pleas, sir. I make a finding of guilt on the charge. Please have a seat.
42 MS. GOELA: Your Honour, I have passed a couple of cases over to Mr. Scofield in support of the Crown's position. On the last date that we were in court, I also provided a copy of these cases to Mr. Willis. It's the case of R. v. Blackwood, I've included the Ontario Court of Justice decision, as well as the Ontario Court of Appeal decision which confirms the lower court's sentence.
43 The Crown is seeking the maximum sentence, which is two years. Mr. Willis has an extensive criminal record in Canada as well as the United States. Mr. Willis has had several convictions for returning to Canada illegally, as well as entries for obstructing justice, drug offences and theft.
44 Most notably, Mr. Willis' last conviction for illegally returning to Canada was in January - it was on January 9th, 2009. He received a sentence of 19 months.
45 So a criminal record is being alleged. The last conviction, the most recent one, is - I have a certified copy of the conviction because it's not on case-tracking yet. I'm also going to hand up the United States criminal record. If Your Honour would like, I could read in the summary of the criminal history, which has been prepared by the investigator, Raymond Morrell.
46 THE COURT: Are the records admitted, Mr. Scofield?
47 MR. SCOFIELD: They are, Your Honour.
48 THE COURT: I am content to mark the Canadian record exhibit one, the U.S. record exhibit two.
EXHIBIT NUMBER ONE: Canadian Criminal Record.
- Produced and marked.
EXHIBIT NUMBER TWO: United States Criminal Record.
- Produced and marked.
49 CLERK OF THE COURT: Your Honour, with respect to the certified copy of Information of the previous conviction?
50 THE COURT: Exhibit three, please.
EXHIBIT NUMBER THREE: Certified copy of conviction.
- Produced and marked.
51 MS. GOELA: Your Honour, would you like a summary of the convictions from the United States, or is the record sufficient?
52 THE COURT: Well, let me have a look and see.
53 MS. GOELA: I know that they categorize their offences a bit differently.
54 THE COURT: These may have duplicate entries.
55 MS. GOELA: Yes.
56 THE COURT: Why do you not give me -
57 MS. GOELA: Summary.
58 THE COURT: - the quick summary of it, please.
59 MS. GOELA: All right.
60 THE COURT: Sorry, just a moment, before I go that far. Mr. Scofield, where do we stand on the sentence submission?
61 MR. SCOFIELD: There is one very mitigating circumstance.
62 MS. GOELA: I haven't had a chance to look at this letter.
63 MR. SCOFIELD: It's a letter from the wife, who has got six - was advised late last year she's got six months to a year to live with cancer and is so sick she can't come to court for him today. He did try, when he found out her situation, by making an application, he says, at the border in Buffalo, but they told him it would take at least a year to process it and by then she'd be dead. So he - notwithstanding, he had an operation of his own in February of this year, the date was December the 4th of '09, he had a surgery for a broken ankle and came over here in a cast, was stopped here, charged with impaired.
64 THE COURT: Is Mr. Willis' country of origin the United States?
65 MR. SCOFIELD: He's born in the United States. He's an American citizen.
66 THE COURT: What prevents his wife joining him in the United States?
67 MR. SCOFIELD: Her physical condition. She's Canadian.
68 THE COURT: All right.
69 MR. SCOFIELD: And she's so sick that she's not able to get out of the house even.
70 THE COURT: What is your sentence submission?
71 MR. SCOFIELD: My friend is asking for the maximum and under normal circumstances, given the record and the number of previous convictions for the same thing, it's not inappropriate. Given all of -
72 THE COURT: The record supports the Crown's submission -
73 MR. SCOFIELD: Yeah.
74 THE COURT: - from my quick review of it.
75 MR. SCOFIELD: It does. What I would suggest is that given the unusual nature of her physical - less than a year to live, that Your Honour might consider cutting that in half. He's been - he hasn't done - he's done about a week dead time. The sentence on the impaired was over - he finished his sentence on April the 12th. I have proof of the fact that he -
76 MS. GOELA: Your Honour, before I read the letter that my friend has passed to me, I do have a couple of additional comments to make -
77 THE COURT: Go ahead.
78 MS. GOELA: - for the Crown's submissions.
79 In addition to the allegations that I read out, Mr. Willis actually has 17 aliases that he has provided in the past. I earlier noted that he does have a recent conviction for returning illegally to Canada.
80 THE COURT: Nineteen months, yes.
81 MS. GOELA: Yes. And he's demonstrated that he can return to Canada. He evades border authorities and he has a complete disregard for Canadian laws. Not only does he come back to Canada illegally, but he also commits crimes while he's here.
82 The cases that I've handed up, R. vs. Blackwood, I could summarize the facts, but they're somewhat similar in the sense that in the case of Blackwood, the accused had - was up for drug charges as well as immigration offences, returning illegally to Canada several times. The Ontario Court of Justice and then the Ontario Court of Appeal confirmed that it would be an appropriate sentence to give two years, the maximum.
83 THE COURT: Sorry. Just a moment. Yes, Mr. Scofield, I just want your client to listen to all of the sentence submissions from the Crown.
84 MR. SCOFIELD: I'm sorry, Your Honour.
85 THE COURT: Go ahead. Take a moment. All right. Go ahead. Continue, please.
86 MS. GOELA: In addition, Mr. Willis is currently on an immigration hold as well. And again, as I was saying from the facts, this is actually his 11th time returning to Canada, at least as known to authorities.
87 So I understand that Mr. Willis may have some sympathetic reasons for coming to Canada, however, he does commit crimes while he's in Canada and he hasn't sought any approval from the Minister to return to Canada. It doesn't seem as though he's applied for any sort of humanitarian or compassionate considerations to return to Canada. He just comes back to Canada on his own.
88 THE COURT: I'll give you a chance in a moment, sir.
89 THE ACCUSED: Okay. Sorry, sir.
90 MS. GOELA: I've just read the letter that my friend has passed to me.
91 THE COURT: Yes.
92 MS. GOELA: It doesn't change the Crown's position.
93 THE COURT: Thank you. Anything else, Mr. Scofield?
94 MR. SCOFIELD: I think it might be helpful if Your Honour took a quick look at that letter.
95 THE COURT: All right.
96 MR. SCOFIELD: And the bottom one is the date referrable to the operation in Buffalo.
97 MS. GOELA: I'm sorry, Your Honour, I don't know if I was clear, but the Crown is asking for -
98 THE COURT: Sorry, everyone, just be quiet, please. This is a serious matter. I do not want to miss anything here. I would be grateful if you could all just be still and quiet for a moment.
99 MS. GOELA: I had stated earlier that the Crown is seeking two years, and just to clarify, that would be two years in light of any pre-sentence custody. So two years on top.
100 THE COURT: Yes, Mr. Scofield.
101 MR. SCOFIELD: The answer to your question about her leaving, she's never applied before to go to the States, but she's prepared to do that. We're waiting to see what happens today. And I can totally understand with a record both there and here what she's asking for. I think it might be beneficial to everyone if you gave him something like a year, let him serve that and then get shipped back and then have her hopefully still alive to go back there with him. What's the point for the Canadian -
102 THE COURT: I am not certain, Mr. Scofield, that that addresses what you put before me as the most significant mitigating factor. According to Ms. Paris, if I accept her letter at face value, early in this year she was given a prognosis of six months to a year.
103 THE COURT: She's - I know, it's very dicey. And I can understand, in spite of the record, the stupidity of doing what he did, to come back to be with her. They've been married for eight years, common-law for about 26 years.
104 THE COURT: I appreciate that submission, Mr. Scofield. This is beyond stupidity. This is blatant, continual, constant disregard.
105 MR. SCOFIELD: I understand.
106 THE COURT: If a married couple wants to be together, they can choose a country to be in and go there where both are eligible to be.
107 MR. SCOFIELD: It seems to me the cost of keeping him here for two years is -
108 THE COURT: There is that. There is no end of -
109 MR. SCOFIELD: I know.
110 THE COURT: - the calculation of what Mr. Willis' criminal conduct may have cost the Canadian taxpayer. Ten previous deportations.
111 MR. SCOFIELD: I know. I know. Well, I think he'd like to address Your Honour about -
112 THE COURT: Yes. I will give him an opportunity.
113 MR. SCOFIELD: Yes.
114 THE COURT: Is there anything else, Mr. Scofield, that you want me to hear?
115 MR. SCOFIELD: Just the sympathetic situation of a dying wife.
116 THE COURT: Thank you. Sorry, Mr. Scofield, there is reference in this letter to a September 18, 2009, letter. Do you have that?
117 MR. SCOFIELD: No, I don't. You don't have it either, do you? Your wife wrote a letter in September about her situation.
118 THE ACCUSED: No.
119 MR. SCOFIELD: No.
120 MS. GOELA: I don't have it in my file either.
121 MR. SCOFIELD: And that other letter simply is referable to the date of his operation. I think it was December the 4th, '09.
122 THE COURT: Yes. That was a simple ankle fracture.
123 MR. SCOFIELD: A fractured ankle, right. My friend has a letter here dated September the 18th.
124 MS. GOELA: Your Honour, I've just reviewed the letter from September 18th, 2009. It's unsigned but-
125 THE COURT: Give me just a moment, please.
126 MR. SCOFIELD: Seems the Duty Counsel had it in her file, Your Honour.
127 THE COURT: Right. I am sorry. Go ahead.
128 MS. GOELA: I've reviewed the letter of September 18th, 2009. I note that it is unsigned. However, even if we are to take the letter at face value, Ms. Velvet Paris has indicated that she was diagnosed with breast cancer in the Fall of 2007 and I would just note that Mr. Willis has a record of illegally returning to Canada and other crimes committed in Canada prior to the Fall of 2007. This again doesn't change the Crown's position.
129 THE COURT: Thank you. Anything else, Mr. Scofield?
130 MR. SCOFIELD: No, that's it.
131 THE COURT: Stand up, please, Mr. Willis. Is there anything you would like to say, sir? You do not have to, but I will listen to anything that you want to tell me.
132 THE ACCUSED: Pretty much, Your Honour -
133 THE COURT: Speak up, please.
134 THE ACCUSED: I listened to what was just said about me and if I was in your position, I would say the max also, you know, empathizing with the whole situation.
135 My whole adult life, Your Honour, I've been involved with criminal activity and I felt comfortable with it. I mean, I thought I was going to be involved with criminal activity all my life. I was compelled to a life of crime when I was 14 years old. I was arrested for something I didn't do. I was one of the first young offenders that if you commit adult crime, you'd be placed in an adult facility, and for five years I was in this adult jail for something I didn't do. Nobody believed in me. I mean, I went in an innocent child and I came out a full grown criminal and I accept - my whole family, nobody believed in me.
136 So once I went to trial and victims told the truth and said the police made them say I was with this gang that I was never with and I was charged with numerous robberies and attempt murders. It destroyed my life. It destroyed - I mean, my goals, my dreams, it destroyed everything. In fact, to be honest with you, Your Honour, I couldn't wait to commit my first criminal activity because nobody believed in - even when they told me I was free to go, nobody said "we're sorry," nothing. They just let me out in the streets with nothing. I couldn't go back to my family because they didn't believe in me. Nothing - I didn't get no help, no counselling, no rehabilitation, nothing. I was out -
137 THE COURT: When was that, sir?
138 THE ACCUSED: This was like in my early twenties. I was 14 years old when I was in New York.
139 THE COURT: How many years ago was this?
140 THE ACCUSED: This is over, Your Honour, my adult life, almost 30 years. You know what I mean. So -
141 THE COURT: So you did not get help 30 years ago.
142 THE ACCUSED: No, I never - I - when I got out of jail, Your Honour, I just start committing crime and it snowballed. I never got involved with the drugs, so I'm not saying that, you know, for you to feel sorry for me, everybody feel sorry for me because I was a drug addict, and this and that and another. I never dealt drugs. I never got involved with selling guns, nothing like that, but I was doing petty offences. It was personal with me.
143 And then it was a time I was so distorted and so confused and so upset, that it was times I didn't even care if I got caught. I wanted to show someone like this is what you did to me, this is what the system did to me as a black man, as a minority. Nobody believe or nothing. Even with my record you got, you ain't gonna see no conditional discharges or probation like white guys. I don't get no breaks, sir, nothing like that. You know what I mean.
144 When I was a young adult, Your Honour, it snowballed into - I mean, it just got to a place where I'm lying to the police. They lied on me, so I'm lying in on them. You know what I mean. Any time I go to court, I get arrested, I lie. I even lie to go to jail. There was times that I done pled guilty to things I didn't even do. You know what I mean. For instance, this situation - I changed my name in New York. I changed my name numerous of times. You know what I mean. You come back cross the border to be with my wife.
145 But I wanted to change.
146 THE COURT: How long have you been - this is your common-law spouse for -
147 THE ACCUSED: No, we married.
148 THE COURT: - six years. When did you get married?
149 THE ACCUSED: We got married in early 2000. But Your Honour, when I tried to change my life -
150 THE COURT: And at that point in time you had been evicted - you had been deported from Canada -
151 THE ACCUSED: Numerous of times. Probably about five or six times, Your Honour. But let me explain please -
152 THE COURT: Quickly, please, sir.
153 THE ACCUSED: When I - when I was in the States I learned from my comrades, you know what I mean, all black history. I've learned - and one of the Crown said to me - one of the Crown said to the judge that I come to Canada because it's easy pickings. That's the furthest from the truth.
154 When I first came to Canada, I came up here - I believed back then what I was taught about black history, that my ancestors used to have to - they escaped from America to come to Canada to be free. And I believed back then like I believe now, that Canada is one of the greatest countries in the world. I didn't come over here to commit no crime or -
155 THE COURT: Has it been made clear to you what Canada thinks about your presence here?
156 THE ACCUSED: I'm already know.
157 THE COURT: Okay. Let's move on from that then, sir.
158 THE ACCUSED: Okay.
159 THE COURT: Is there anything else you wish to say?
160 THE ACCUSED: Yes, Your Honour. So when I came to Canada, I'm working, I'm feeling free - I got arrested because somebody robbed me - I was standing right down the street here selling goods. Somebody went in my hotel room, stole all of my property, stole my money. The police, when they came to interview me, they found out that I had a record back in the States and they deported me.
161 In fact, if you can see back in '82 I was illegally deported. They say that you're supposed to have two years or more. They illegally deported me. But when they deported me, they took everything from me. So now I'm triggered, that old criminal activity coming back and I couldn't wait to come back here and make crime. Please, Your Honour, I never did come over here to hurt nobody or nothing like that. And I mean it was personal. You know what I mean.
162 And every time I go to jail - I haven't been to your penitentiary - don't nobody try to help a minority. We - in the community is like two to three percent of the blacks here. Well, we overpopulate in the jail. We got everybody black. We not no dangerous to society or no real bad people. We've got some decent people. But minority - we be a minority, the world look down on us, especially a black man, everybody hate us. We don't get no breaks. I mean -
163 THE COURT: Sir, that is an outlandish statement for you to make in my courtroom. All right.
164 THE ACCUSED: But it's the truth, sir -
165 THE COURT: Sir -
166 THE ACCUSED: - with all due -
167 THE COURT: - I have heard enough about that.
168 THE ACCUSED: Okay.
169 THE COURT: That is an outlandish statement for you to make in my courtroom, sir. Whatever difficulties you had, they have to do with your criminal conduct -
170 THE ACCUSED: Okay.
171 THE COURT: - not the colour of your skin.
172 THE ACCUSED: No, I -
173 THE COURT: Sir, now is a good time for you to drop the victim-hood
174 THE ACCUSED: Your Honour, I -
175 THE COURT: - in which you wrap yourself. Is there anything else you want to say about the sentence -
176 THE ACCUSED: Yes, Your Honour.
177 THE COURT: - that is suggested.
178 THE ACCUSED: Your Honour, when I met my wife over 20 years ago, I tried to change. You know, I'm speaking the truth. You know what I mean. I know I did - you know, like I said, the system destroyed my spirit, took away my dreams, locking me up for something I didn't do. You know what I mean. I'm a decent person. You know what I mean. You don't see me - you don't see me, my record reflects that, selling drugs or selling death to people. You know what I mean. It was out of survival. I tried to work. Every time I tried to get a job, my record come back and haunt me. You know what I mean.
179 I come up here, even with my wife, you know what I mean, she's got breast and bone cancer. I tried to go to the immigration and do the right thing and to your embassy in Buffalo. They shot me down. I paid $400 for the fee. I got in contact with your Minister, the Honourable Jason Kinney and wrote him up from the House of Commerce, him a letter, your Minister of Public Safety, Mr. Vic Lore, I got in touch with a few people trying to - you know, I'm telling - I want to change, you know what I mean. My wife - when they told me my wife got six months to a year to live, I snapped. I didn't use -
180 THE COURT: The best way, sir, to demonstrate your desire to change is actually implement some change and nothing in your record suggests to me that that is the case. Is there anything else?
181 THE ACCUSED: Yes, Your Honour. Your Honour, at the end of the day I want to change. You know what I mean. I want to be - I want to be a part of the - you know what I mean, a law abiding member of the social order. I can change. I want to change.
182 You know what I mean. I want to be honourable. I want to do right. I'm asking you for your help and your consideration to sentence me with humane and compassion, Your Honour. I mean, I did a lot of things in my past, you know what I mean, but I want to change. You know what I mean. You know what I mean.
183 I never got probation. Put some - put some time over my head. Give me a conditional discharge. Give me a fine, Your Honour. You got a broad view of sentence you can hit me with. You know what I mean. I never had a break. You know what I mean. I really want to change. I really want to do good. I got a nice plan. You know what I mean. But I need you, you know what I mean, at the end of the day, Your Honour.
184 I know I ain't got nothing else to go on. I've been - I love this woman with all my heart. You know what I mean. I know my record reflects that I should get the max, but I'm asking you to sentence me with humane and compassion, Your Honour, please.
185 THE COURT: Thank you, sir. Give me a moment, please.
186 Following your entry of a plea, Mr. Willis, I made a finding of guilt on a charge of contravention of the Immigration Refugee and Protection Act, contrary to Section 124(1) (a) of that Act.
187 Your case, sir, poses significant issues. You are certainly, by reason of the medical condition of a woman you describe as your wife, your wife who describes herself as your common-law spouse - I have two letters from her indicating that she is in dire difficulty with respect to cancer. In the early part of this year, she was given a prognosis of six to twelve months. That situation would, in virtually every circumstance, generate significant sympathy from the Court in light of the Crown's sentence submission for a custodial term.
188 The other side of the coin, sir, is this: You are an admitted career criminal. You have ignored 10 previous deportation orders. Your whole life has been one exhibiting disdain for authority, for the rules that govern society. You have indulged in criminal conduct virtually your entire life. On 10 previous occasions you have illegally re-entered Canada and in that time there has been a virtually uninterrupted period of criminal behaviour on your part.
189 You tell me that all of this stems from an unlawful arrest and imprisonment when you were a teenager some 30 years ago. You made clear to me that you have decided, as a result of that, to wrap yourself in the cloak of victim-hood. You make references to your race as some factor involved in your criminal conduct. I, sir, do not make that connection at all. You make the assertion that black people are not a danger to society. That is about the most truthful thing you said. I do not and no one here thinks that is the case. You, sir, are a danger to society.
190 In Canada, clearly the place you want to spend a lot of time, what you suggest goes on does not occur. You, sir, get treated in this court just like everyone else. You have spent enough time in this country to be able to understand that if you wanted to. It seems to me it suits you though to wrap yourself as a victim, as a product of a lifetime of unjust convictions.
191 I am sorry, sir, none of that persuades me in the least. You clearly are a menace. You tell me that you now have a plan and you want to change, but nothing in the 30 year record before me suggests that I should give even the remotest bit of credence to that.
192 I come back to the situation involving your wife. Do not be under any misapprehension as to how sympathetic I am to you and to her about that situation. But sir, you have made the situation in which you find yourself. Any other level of conduct on your part during the time you have been in Canada, or while you have lived in the States, indeed your entire adult livelihood, could have resulted in a different outcome.
193 If ever there was a circumstance where it could be concluded that the chances have been used up, yours is it.
194 I cannot conceive of any situation, in light of this record, that would render it inappropriate for me to accept the Crown's sentence submission.
195 You will be sentence to custody for a period of 24 months.
196 THE ACCUSED: Your Honour -
197 THE COURT: I am sorry, sir. Thank you very much.
198 THE ACCUSED: Thank you, thank you, thank you. I wanted to say something that you got me real bad, but I'm a changed man and whatever you say, I'm going to change. Thank you for your time. I had it on my heart to say what I really want to say to you, but thank you.
199 THE COURT: Thank you, sir. Good luck to you. Mr. Scofield -
200 MR. SCOFIELD: Yes, Your Honour.
201 THE COURT: I think it would assist the sentencing authorities if I marked the documents you had given me as exhibits. Mr. Willis' medical certificate is exhibit four, letter from Ms. Paris, September 18, 2009, exhibit five, letter from Ms. Paris, February 27, 2010, is exhibit six.
202 MR. SCOFIELD: I think so too. Thank you, Your Honour.
203 THE COURT: I'm sorry?
204 MR. SCOFIELD: It would be helpful to have the authorities -
205 THE COURT: I think so.
EXHIBIT NUMBER FOUR: Medical Certificate.
- Produced and marked.
EXHIBIT NUMBER FIVE: Letter dated September 18, 2009.
- Produced and marked.
EXHIBIT NUMBER SIX: Letter dated February 27, 2010.
- Produced and marked.

DISTURBING ALLEGATIONS AT VISA POST

Visa-for-cash scheme investigated - Crime - Canoe.ca

Visa-for-cash scheme investigated

By TOM GODFREY, QMI Agency


TORONTO - Federal immigration authorities are probing an alleged visa-for-cash scheme being operated by Polish citizens working at the plush Canadian Embassy in Warsaw.

The award-winning embassy made news last May after two British diplomats were suspended following "an altercation" at in-house bar, the "Beaver Club," which is described as a "a swish drinking space designed for civilized discussion of diplomatic affairs."

The dispute led to a complaint being filed by Canadian diplomats against their British colleagues.

Toronto residents with knowledge of the visa probe said it stems from a scheme in which Canadian visas were allegedly being sold by two Polish citizens, known as locally engaged staff, working in the visa office.

The men who are suspected of selling the documents are not Canadian citizens and play major roles in approving applicants from thousands who apply for visas to travel to Canada.

The embassy also processes cases from Estonia, Latvia, Lithuania, India, Syria and Lebanon.

"These individuals are privy to very sensitive information from applicants," one Toronto source said. "They have a lot of power and they are not even Canadians."

QMI Agency has obtained a letter outlining the allegations that was sent to the RCMP and immigration officials.

A senior department official responded to the allegations stating an investigation is underway and requested further information.

Immigration spokesman Melanie Carkner said on Friday the department is not aware of any allegations of malfeasance at the embassy.

"Should someone want to come forward and make an official complaint, we will not hesitate to take the necessary action," Carkner said.

The three-storey embassy was constructed of French limestone and aluminium and won architectural awards when it opened in 2001.

Foreign affairs and immigration officials in Ottawa refused to comment on an ongoing investigation.

The RCMP were called in 2006 to probe another immigration scam at the embassy after allegations that dozens of Poles were sent to Canada illegally without background checks.

nineteen convictions

This is an interesting case. The person concerned was determined to be a "Convention Refugee" from Jamaica, something that is somewhat unusual in itself. However, in addition, he managed to amass 72 (SEVENTY TWO) criminal convictions, some of them serious, but according to the judgement below, never served more than three months in jail, something puzzling given his recidivism. Another startling fact in the case: despite his lack of status in Canada and his record number of criminal convictions, CBSA took four years to obtain a danger opinion. To make matters more unusual, a member of the IRB ordered detained, and another one ordered released, which gave rise to this request for review. The final straw was the judge not granting the application. Question: Is this the type of competency the Canadian public should expect from the authorities? How does a person accumulate so many convictions and manage to remain in Canada undisturbed by CBSA for so long?


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

Between
The Minister of Public Safety and Emergency Preparedness,
Applicant, and
Walford Uriah Steer, Respondent
[2010] F.C.J. No. 1053
2010 FC 830

Docket IMM-4731-10

Federal Court
Ottawa, Ontario

Harrington J.

Heard: August 18, 2010.
Judgment: August 19, 2010.
(20 paras.)

________________________________________


REASONS FOR ORDER AND ORDER

1 HARRINGTON J.:-- Mr. Steer has been found to be a danger to the Canadian public. Should he be allowed to roam the streets of Montréal and Toronto while the authorities collect the necessary travel documents and make arrangements to deport him to his native Jamaica? At his last detention hearing, the Member of the Immigration and Refugee Board of Canada (IRB) charged with the matter said yes. The Minister asks this Court to stay that order.
2 Put in this way, the answer seems obvious. However all is not as it seems to be. The Minister has to persuade me that he will suffer irreparable harm should Mr. Steer be released from his current detention. He has not done so, and so his motion is dismissed.
3 In considering Mr. Steer's situation, the following matters must be kept in mind.
4 From 1990 to 2006, he amassed 72 criminal convictions, some of which fall within the definition of serious criminality as set out in the Immigration and Refugee Protection Act (IRPA). Although some of the convictions carried potential imprisonment of 10 years or more, he was never sentenced to more than three months in prison, plus probation. If he were a Canadian, he would be free to roam the streets at will, despite what the Minister might think.
5 Mr. Steer is a Jamaican, and is not even a Canadian permanent resident. Having been convicted of serious criminality, s. 36 of IRPA renders him inadmissible and he is subject to removal.
6 However, in 2003, notwithstanding previous criminal convictions in Canada, he was determined to be a refugee by the IRB. He thus was granted protected person status but did not acquire permanent residence status because of his inadmissibility.
7 Canada does not remove refugees to a country where they would be at risk of persecution. There is an exception to that rule. The exception is this. Section 115 of IRPA provides that a convention refugee, who is inadmissible on grounds of serious criminality, is removable if he constitutes, in the opinion of the Minister, a danger to the public in Canada. On 3 August 2010, the Minister's delegate so found. The report balances the potential danger to Mr. Steer should he be returned to Jamaica against the potential danger to the Canadian public. The Canadian public won out. Mr. Steer has filed an application for leave and for judicial review of that decision. The following day, 4 August 2010, when he made his weekly appearance as one of the conditions imposed upon him going back to 2006, he was informed of the decision, arrested and placed in detention.
8 Section 57 of IRPA provides that such detention is to be reviewed within 48 hours by a member of the Immigration Division of the IRB, at least one more time during the seven days following the initial review, and then at least once every subsequent 30 days. The officer shall order the release of a person so detained unless satisfied, among other things, that he is a danger to the public or unlikely to appear for his removal from Canada.
9 At the 48-hour hearing, which was held on 6 August 2010, the Member noted that Mr. Steer had been under release since 2006 and had respected the conditions thereof, including weekly reporting. During all that time, he was aware that a Minister's delegate's opinion was being sought, an opinion which was delivered four years later. During this four-year timeframe, he has been convicted of nothing. Consequently, the Member was of the opinion that he was of no more danger to the public now than he was in 2006.
10 However, since the risk of an adverse danger opinion had become a reality, there was more of an incentive for him to go underground, and so he might well be a flight risk. The information then available was that Mr. Steer had refused to fill out a form to allow the Canadian Border Service Agency (CBSA) to obtain a travel document to facilitate his removal. The Member noted that the information might change within the next few days and that she herself was not closed to the idea of releasing Mr. Steer but that it would be premature in the circumstances. She concluded:

• So, I just wanted to reiterate that for the record so that my colleague can consider that at the next detention review, because for the time being I will be maintaining the detention for a further seven days again, because I feel that at this time there is certain information that does not need to be clarified especially in regards to the anticipated removal and the feasibility of the removal.
11 At the seven-day hearing, which was conducted on 13 August 2010, Mr. Steer was ordered released on certain conditions. The Minister has applied for leave and for judicial review of that decision and it is in that context that he seeks a stay of the Member's order.
12 The second Member shared the view that while Mr. Steer is a danger to the public, he is no more of a danger now than he was in 2006 and that that danger had been counterbalanced for years by the conditions imposed upon him. What had changed, or had become clearer, is that he has now stated he would cooperate in signing for travel documents if so advised by counsel, that he would ultimately comply with a removal order, and that the removal date is uncertain. During the hearing before me, counsel submitted that it would take at least one month, and perhaps two, to have everything in order. The Member saw no reason why the imposition of strict conditions would not counterbalance the flight risk. He determined that the release conditions which were already in place would be maintained, which include weekly reports in person and that he would have to collaborate to the satisfaction of the CBSA with respect to obtaining travel documents.
13 The Minister maintains that Mr. Steer is such a danger to the public that he should remain in detention and that he is a flight risk. He posted bail of $5,000 some years ago. In the alternative to detention, at the very least, bail should have been dramatically increased.
INTERLOCUTORY STAYS
14 The order for Mr. Steer's release, issued on 13 August 2010, took immediate effect. It was stayed on an interim basis by Mr. Justice Martineau to allow the parties sufficient time to perfect their records and to make submissions. An interlocutory stay of proceedings, like an interlocutory injunction, only lies if the moving party establishes that there is a serious issue to be tried, irreparable harm should the stay not be granted and that the balance of convenience favours him. All three requirements must be met. Two cases invariably cited are Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) and RJR - MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311.
15 The parties strongly disagreed as to the serious issue requirement. The normal rule is that there is a serious issue if it is neither frivolous nor vexatious. I have no doubt the Minister has satisfied that test.
16 However, in accordance with s. 58 of IRPA, the order under judicial review only has a lifespan of 30 days. If Mr. Steer remains in detention there is no way that a decision would be rendered on the application for judicial review prior to the next 30-day hearing. Thus, the Minister will have obtained everything he could have obtained in a judicial review on the merits.
17 There are exceptions to the non-frivolous, non-vexatious standard, one of which is where the interlocutory stay will effectively decide the underlying application. In such instances, the serious issue becomes the likelihood of success on the underlying application, as held by Mr. Justice Pelletier, then in the Trial Division of the Federal Court, in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 F.C. 642.
18 Mr. Steer invites me to assess the merits of the Minister's application for judicial review. The Minister counters that this Court, on previous occasions, has applied the non-vexatious, non-frivolous standard to interlocutory stays of orders releasing a person from immigration detention and has limited the more stringent test to decisions of removal officers, not to decisions of members of the Immigration Division.
19 I need not to come to any decision on this issue, as I am not satisfied that the Minister will suffer irreparable harm. There is absolutely nothing to suggest that the Member got it wrong in his assessment of the danger to the Canadian public. The risk of harm is that Mr. Steer might flee and sums would be expended to hunt him down, a hunt which might prove to be unsuccessful. The Immigration Division, which has expertise in these matters, was of the view that Mr. Steer's risk of flight is counterbalanced by conditions imposed, including weekly reporting and the requirement that he fully cooperate with the CBSA in arranging his travel documents. The Minister has not made out a case the he will suffer irreparable harm should Mr. Steer be released. He is on a short leash.
20 Finally, it might be said that the balance of convenience favours the Minister, notwithstanding that Mr. Steer could not continue his employment while incarcerated. The Minister would prefer the certainty of taxpayers paying for Mr. Steer's detention rather than face the possibility that more money might have to be expended to search him out should he flee. Of course, if the Member got it right he will not flee and no additional public funds will be expended.

ORDER
FOR REASONS GIVEN;
THIS COURT ORDERS that:

The Minister's motion for a stay of the order of the Immigration Division of the Immigration and Refugee Board of Canada, dated 13 August 2010, freeing Walford Uriah Steer from detention, upon satisfaction of certain conditions, is dismissed.

HARRINGTON J.

TAMIL SHIP MIGRANTS COSTS ENDANGER OTHER FUNDING

After reading this, one is left to wonder why, if their community really believes that these migrants are in danger, they do not pay their own bill, rather than rely on legal aid. Since many of them appear to have connections or even relatives in Canada, it is somewhat puzzling why they are not footing their legal bill. Obviously, this is an area in need of reform as legal aid budgets are limited.

CBC News - British Columbia - Tamil migrant lawyers face money crunch

INVESTOR REFUSED AFTER CONTRADICTORY EVIDENCE PRESENTED

This is an interesting new case, which highlights the importance of thoroughly preparing applications with attention to detail. In this case, the contradictions in the applicant's documentary material resulted in the refusal of her Investor application.


Pan v. Canada (Minister of Citizenship and Immigration)

Between
Qun Huan Pan, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 1037
2010 FC 838

Docket IMM-5339-09

Federal Court
Calgary, Alberta

Crampton J.

Heard: May 11, 2010.
Judgment: August 24, 2010.
(52 paras.)

________________________________________

REASONS FOR JUDGMENT AND JUDGMENT
1 CRAMPTON J.:-- The Applicant, Qun Huan Pan, is a citizen and resident of China. In July 2005, she applied for permanent residence in Canada under the provisions applicable to the investor class.
2 In August 2009, her application was rejected. Ms. Pan seeks to have that decision set aside and remitted to another visa officer for re-determination on the grounds that the visa officer who made that decision erred by:

• (i)
failing to make his decision in accordance with the principles of procedural fairness; and
• (ii)
basing his decision on erroneous findings of fact made in a perverse or capricious manner and without regard to the material before him.
3 For the reasons that follow, this application is dismissed.

I. Background
4 According to the information provided by Ms. Pan, she has worked in the auto parts industry since 1984. From July 1993 to December 2001, she worked as a senior manager with a vehicle fittings company. In 2002 she opened her own business.
5 In support of her application, she submitted a significant amount of documentation to establish, among other things, that she had a legally obtained net worth of at least $800,000 and had business experience, as required by subsection 88(1) of the Immigration and Refugee Protection Regulations, SOR 2002-227 ("Regulations").
6 In June 2007, an initial screening officer identified "a few discrepancies" in the information provided by Ms. Pan and recommended that she be requested to attend an interview. Among other things, those discrepancies included the following:

• (i)
she apparently only invested $60,000 in her new business, even though she claimed to have earned significant amounts of money prior to starting that business;
• (ii)
the audited financial information she provided appeared to be self-serving (because there was no requirement for "individually-owned" companies to prepare audited financial statements) and was prepared by someone who was believed to have worked with immigration consultants to provide backdated consolidated financial reports for other immigration applicants; and
• (iii)
the registered capital of her company appeared to be too low to manage a business with the reported level of annual gross revenues.
7 In June 2009, she was sent a letter requesting her to provide updated information and to attend an interview. Among other things, the information that was requested at that time included an Updated Personal Net Worth Statement with supporting documentation and an Updated Statement detailing the accumulation of her funds.
8 During Ms. Pan's interview at the Canadian Consulate General in Hong Kong in August 2009, visa officer Tyler Arrell (the "Visa Officer") focused his questions on (i) the activities of her business, in particular the products sold by that business; and (ii) how she was able to generate sales of RMB$2.4 million in 2002, given that she reported an investment of only RMB$60,000 in that business. After repeated questioning on the latter matter, Ms. Pan disclosed that she contributed a further amount of "about RMB$200,000" to the business.
9 Towards the end of that interview, the Visa Officer expressed his concerns that Ms. Pan may not have the business experience or sufficient legally obtained net worth required to become a permanent resident as a member of the investor class. With respect to business experience, he noted that she was unable to describe the details of her business. Regarding her net worth, he noted that the information she had provided did not demonstrate or substantiate how she was able to obtain sales at the level she had claimed to achieve.
10 In response, Ms. Pan simply noted that (i) RMB$60,000 is the minimum requirement to open up a company, (ii) she didn't know she was required to include in her financial statements her contribution to the company of RMB$200,000 in personal savings, and (iii) the sales of RMB$2.4 million achieved in 2002 was in part due to the fact that a number of loyal customers followed her from her previous job.

II. The Decision Under Review
11 In a short letter, dated August 19, 2009, the Visa Officer informed Ms. Pan that her application had not been approved.
12 After reviewing the provisions in s. 12(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), and subsections 88(1), 90(1) and 90(2) of the Regulations, the letter informed Ms. Pan that she had not satisfied the Visa Officer that she had a legally obtained minimum net worth of at least $800,000. The letter proceeded to identify the following concerns that arose from the information that Ms. Pan had provided in her documentation and at her interview:

• - The initial investment of RMB$60,000 into your company does not appear to be sufficient to have obtained the stated sales of RMB$2.4 million in the first year of operation.

• - Your statement that you invested an additional RMB$200,000 into the company contradicts the information provided, is unsubstantiated and raises concerns as to the accuracy of the documentation you provided.

• - You were unable to clearly describe the business operations or provide specific details regarding what the company sells, raising doubts as to your role in the business and whether the declared funds were in fact earned by you in the business.
13 The Visa Officer's letter then added: "You were informed of these concerns at the interview and your statement that customers from your previous employment began to do business with your company did not overcome these concerns."
14 Based on the foregoing, the Visa Officer stated that Ms. Pan had not satisfied him that her personal net worth had been legally obtained, and that therefore she did not meet the requirements of subsection 90(2) of the Regulations.

III. Relevant Legislation
15 The basis for granting a foreign national permanent residence on the basis of the membership in an economic class is set forth in subsection 12(2) of the IRPA, which provides as follows:

• Economic immigration

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

• Immigration économique

• 12.(2) La sélection des étrangers de la catégorie "immigration économique" se fait en fonction de leur capacité à réussir leur établissement économique au Canada.
16 The specific requirements that must be met to be granted permanent residence as a member of the investor class are set forth in subsections 88(1), 90(1) and 90(2) of the Regulations, which state:

• Definitions

• 88. (1) The definitions in this subsection apply in this Division.

• ...

• "investor" means a foreign national who

• (a)
has business experience;
• (b)
has a legally obtained net worth of at least $800,000; and
• (c)
indicates in writing to an officer that they intend to make or have made an investment.
...
Members of the class

• 90. (1) For the purposes of subsection 12(2) of the Act, the investor class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are investors within the meaning of subsection 88(1).

• Minimal requirements

• (2)
If a foreign national who makes an application as a member of the investor class is not an investor within the meaning of subsection 88(1), the application shall be refused and no further assessment is required.
* * *

• Définitions

• 88. (1) Les définitions qui suivent s'appliquent à la présente section.

• ...

• "investisseur" Étranger qui, à la fois :

• a)
a de l'expérience dans l'exploitation d'une entreprise;
• b)
a un avoir net d'au moins 800 000 $ qu'il a obtenu licitement;
• c)
a indiqué par écrit à l'agent qu'il a l'intention de faire ou a fait un placement.
...
Qualité

• 90. (1) Pour l'application du paragraphe 12(2) de la Loi, la catégorie des investisseurs est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada et qui sont des investisseurs au sens du paragraphe 88(1).

• Exigences minimales

• (2)
Si le demandeur au titre de la catégorie des investisseurs n'est pas un investisseur au sens du paragraphe 88(1), l'agent met fin à l'examen de la demande et la rejette.

IV. The Standard of Review
17 The issue that Ms. Pan has raised with respect to procedural fairness is reviewable on a standard of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 55 and 79; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 43).
18 The issue that has been raised with respect to whether the Visa Officer based his decision on erroneous findings of fact made in a perverse or capricious manner and without regard to the material before him, is reviewable on a standard of reasonableness (Dunsmuir, above, at paras. 47 and 53).
19 In Khosa, above, at para. 59, reasonableness was articulated by Justice Ian Binnie as follows:

• [...] Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.
V. Analysis

• A.
Did the Visa Officer fail to make his decision in accordance with the principles of procedural fairness?
20 Ms. Pan submits that the Visa Officer failed to make his decision in accordance with the minimum degree of procedural fairness owed to her in this case, because he failed (i) to inform her of his concerns regarding the documentation she had provided and to provide her with an opportunity to submit further documentation, and (ii) provide her with an opportunity to respond to extrinsic evidence.
21 With respect to the first of these points, Ms. Pan referred to Citizenship and Immigration Canada's Overseas Processing Manual, which states, at paragraph 5.15 of Chapter 9 (OP 9): "When an officer has concerns about eligibility or admissibility, the applicant must be given a fair opportunity to correct or contradict these concerns." She further noted that paragraph 11.2 of OP 9 states: "When the veracity of the documentation is in doubt, the officer should first request further documentation." She asserted that these guidelines reflect the minimum duty of fairness that was owed to her and that this duty further requires that a visa officer (i) allow applicants to respond to any concerns that the visa officer has with respect to the application, and (ii) to explain inconsistencies in the evidence.
22 To support her position that she was not accorded the minimum requirements of procedural fairness, Ms. Pan referred to the computer assisted immigration processing system (CAIPS) notes taken by the initial screening officer who reviewed her application in June 2007. As mentioned at paragraph 6(ii) above, among other things, those notes stated that the audited financial information she provided appeared to be self-serving and were prepared by someone who was believed to have worked with immigration consultants to provide backdated consolidated financial reports for other immigration applicants.
23 Ms. Pan relies on those CAIPS notes to submit that the Visa Officer did not accept the audited financial statements as reliable proof of her company's financial record, and that he failed to inform her of these concerns or to request further documentation relating to her financial statements. She maintains that the letter sent to her in June 2009 did not suggest that the previously provided documentation was considered insufficient and did not contain any specific request for further documentation regarding the financial statements of her business. She contrasts the contents of that letter with CAIPS notes made by the Visa Officer immediately following her interview, which state: "Applicant's statement that she invested an additional RMB$200,000 into the company contradicts the information provided, is unsubstantiated, and raises concerns as to the accuracy of the documentation provided."
24 Leaving aside the issue of whether the guidelines set forth in OP 9 accurately reflect the minimum requirements of procedural fairness that are legally required to be accorded to visa applicants (Parmar v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 203 (F.C.T.D.), at paras. 12 and 13), I disagree with Ms. Pan's assertions regarding the manner in which the Visa Officer dealt with his concerns in relation to the documentation she had provided. In my view, the Visa Officer did not fall short of the minimum requirements of procedural fairness in this regard.
25 The extent of procedural fairness applicable in any given situation is variable (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 21; Sketchley v. Canada (Attorney General), 2005 FCA 404, at para. 113).
26 In the case of visa applicants, the minimum degree of procedural fairness to which they are entitled is at the low end of the spectrum (Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297, at para. 41 (C.A.); Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2002] 2 F.C. 413, at paras. 30-32; Patel v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55, 23 Imm. L.R. (3d) 161, at para. 10).
27 In general, the onus is on a visa applicant to put his best foot forward by providing all relevant supporting documentation and sufficient credible evidence in support of his application. 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 (Silva v. Canada (Minister of Citizenship and Immigration), 2007 FC 733, at para. 20).
28 In addition, a visa officer has no legal obligation to seek to clarify a deficient application (Sharma v. Canada (Minister of Citizenship and Immigration), 2009 FC 786, at para. 8; Fernandez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 994, at para. 13; Dhillon v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 574, at para. 4), to reach out and make the applicant's case (Mazumder v. Canada (Minister of Citizenship and Immigration), 2005 FC 444, at para. 14), to apprise an applicant of concerns relating to whether the requirements set out in the legislation have been met (Ayyalasomayajula v. Canada (Minister of Citizenship and Immigration), 2007 FC 248, at para. 18), or to provide the applicant with a "running-score" at every step of the application process (Covrig v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1413, at para. 21). To impose such an obligation on a visa officer would be akin to requiring a visa officer to give advance notice of a negative decision, an obligation that has been expressly rejected (Ahmed v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 940 (QL); Sharma, above).
29 In this particular case, the duty of fairness owed to Ms. Pan was more than met when she was:

• i.
provided with a full opportunity to submit whatever materials she thought might assist her to establish the requirements listed in subsection 88(1) of the Regulations;
• ii.
informed in June 2009 that she had not yet met those requirements and was requested to provide updated information and supporting documentation, among other things, to establish her net worth and to provide greater detail with respect to the accumulation of her personal net worth;
• iii.
invited to attend an interview at which she was asked to provide additional information with respect to the products sold by her business, to explain how she was able to achieve such an "extremely high" level of annual sales in 2002 given her reported initial investment of only RMB$60,000;
• iv.
informed by the Visa Officer towards the end of the interview that he continued to have concerns that she had still not demonstrated that she had the requisite business experience or sufficient legally obtained net worth to become a permanent resident as a member of the investor class;
• v.
told why the Visa Officer continued to have those concerns;
• vi.
provided with one last opportunity to respond to those concerns; and
• vii.
subsequently provided with detailed reasons explaining why her application was refused.
30 The letter sent to Ms. Pan in June 2009 explicitly informed her that the information she had submitted in support of her application had failed to satisfy an officer that she met the requirements of the IRPA. That letter also explicitly requested additional financial information "attached with supporting documents to prove your net worth" and "detailing the accumulation of your funds." Contrary to her assertions, as of the time that Ms. Pan received that letter, she was put on clear notice that (i) the information she had provided previously was considered insufficient, and (ii) further documentation regarding the financial statements of her business was required.
31 Moreover, at her interview in August 2009, the Visa Officer explicitly identified on two separate occasions his concerns regarding the financial documentation that she had submitted; and on both occasions he provided Ms. Pan with a further opportunity to clarify the apparent inconsistencies that he had identified. Unfortunately, the inconsistent responses provided by Ms. Pan failed to address those concerns and may well have strengthened them. Contrary to Ms. Pan's assertions, the questions put to her by the Visa Officer during their interview clearly raised the issue of the accuracy of the financial information that she had previously submitted. In the final analysis, Ms. Pan failed to adequately avail herself of the opportunities that she was thereby afforded to address the Visa Officer's concerns.
32 When the Visa Officer first asked how Ms. Pan's company could have achieved a level of sales of RMB$2.4 million in its first year of operation, with an initial investment of only RMB$60,000, she replied: "The business grew rapidly over the years." When pressed again on this point, she stated that loyal customers from her previous job had followed her to her new company. When further pressed, she explained that the audited financial statements of her business only identified an initial investment of RMB$60,000 because that was the minimum requirement to open the business. It was not until she was then pressed yet again on this point that she finally revealed that she contributed RMB$200,000 of her personal savings to the company. Even then, she was not able to provide any substantiation for this assertion, notwithstanding the fact that the Visa Officer explicitly noted, towards the end of the interview, that he was concerned that (i) the documentation she provided did not demonstrate that her company was able to obtain sales at the level she had claimed, and (ii) she had not provided any substantiation to support her claim that she had injected additional funds into the company.
33 Turning to Ms. Pan's claim that the Visa Officer failed to provide her with an opportunity to address extrinsic evidence, she submits that he relied on the extrinsic evidence that was included in the CAIPS notes made in June 2007 by the initial screening officer. Specifically, she submits that the Visa Officer relied upon evidence that her financial statements had been "prepared by Liu Xi who has been partnered with the same immigration reps to provide backdated consolidated financial reports for immigrants to Canada." She asserts that she had no way of knowing that the Visa Officer was suspicious of the Liu Xi accounting firm, because she was never presented with an opportunity to address this evidence.
34 I am unable to agree with Ms. Pan's submission that the Visa Officer breached a duty of fairness owed to her by failing to provide her with an opportunity to address that evidence.
35 There is no indication in the Visa Officer's decision, in his CAIPS notes, or elsewhere that he relied on this extrinsic evidence that had been identified by the initial screening officer. As explained in the Visa Officer's decision, Ms. Pan's application was refused because she had not satisfied him that she had a legally obtained minimum net worth of at least $800,000. In turn, the Visa Officer explained that he was not satisfied on this point for the precise reasons that he conveyed to her in her interview in August 2009, which are discussed above at paragraphs 12 and 32. Those reasons concerned Ms. Pan's inability to satisfactorily address issues that arose from the contents of her financial statements, as opposed to the identity of the person who prepared those financial statements.
36 This Court's decisions in Chen v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 65, Kniazeva v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 336, and Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 are distinguishable.
37 In Chen, above, at para. 14, the applicant's application was denied after it was discovered, unbeknownst to him, that certain of his client contracts were fraudulent. That decision was set aside on the basis that the applicant had not been provided an opportunity to address all of the fraud reports that had been reviewed by the visa officer. In contrast to the case at bar, that extrinsic evidence was clearly relied upon by the Visa Officer and was clearly central and important to the Visa Officer's decision.
38 Similarly, in Kniazeva, above at paras. 23-24, the applicant's application was denied after the Visa Officer relied on extrinsic evidence that was supplied by a senior manager at one of her former places of employment. That evidence suggested that the applicant had only worked part time with the company in question. As a result of that evidence, the applicant was awarded fewer points than she otherwise may have been awarded in the assessment of her application for permanent residence in the skilled worker class. This Court found that that extrinsic evidence gave rise to a "critical discrepancy" with the information provided by the applicant, and that the Visa Officer's reliance on this evidence may have had an impact on his overall decision. As a result, the Court concluded that the visa officer had breached his duty of procedural fairness to the applicant by not affording her the opportunity to address that evidence.
39 Likewise, in Muliadi, above, at paras. 14-16, the appellant's application for permanent residence was rejected after the visa officer relied upon a negative assessment of his business proposal that had been provided by the Province of Ontario. The appellant was not informed of that assessment or provided with an opportunity to address its contents prior to the visa officer's final decision on his application.
40 By contrast, as noted above, in the case at bar, there is no indication that the extrinsic evidence in question was relied upon by the Visa Officer or had a material impact on his decision. As confirmed in Bavili v. Canada (Minister of Citizenship and Immigration), 2009 FC 945, at paras. 47-48, there is no duty to disclose extrinsic evidence that is not relied upon.
41 For the foregoing reasons, I conclude that the Visa Officer did not breach his duty of procedural fairness towards Ms. Pan.

• B.
Did the Visa Officer base his decision on erroneous findings of fact made in a perverse or capricious manner and without regard to the material before him?
42 Ms. Pan submits that it was unreasonable for the Visa Officer to conclude that the information she provided in her interview and in the documentation submitted in support of her application raised doubts as to her role in her company and as to whether the declared earnings of the company were in fact earned by the company. She further asserts that, in concluding that she had not established that she had a legally obtained minimum net worth of at least $800,000, the Visa Officer reached his decision without regard to the evidence before him. In addition, she submits that there was no evidentiary foundation for the Visa Officer's concerns regarding the level of annual sales of her business, as reflected in the audited financial statements of the business.
43 I disagree.
44 With respect to her role in the company, the Visa Officer's concerns arose from Ms. Pan's inability to provide sufficient details regarding what her company sells. When asked what her business does, Ms. Pan replied that the business sells parts for vans and private cars. The following exchange then took place:
"Q: What part do you sell the most?



A:
5M, 6BG1, Z22.



Q:
What does 5M do?



A:
It's for taxi.



Q:
What part of the car does it go in?


• A: In the front of the taxi, so that you can turn on the car smoothly. It's for taxi.

• Q: I'm concerned that you are unable to explain what it is that your business sells.



A:
We sell auto parts. Including motors.



Q:
I want to know what parts you sell?



A:
We sell the parts individually to whole."

45 There was no further discussion of this issue.
46 I am unable to conclude that it was unreasonable for the Visa Officer to have been left with doubts regarding Ms. Pan's role in the business, as a result of the foregoing exchange. While that exchange, alone, may not have given me the same doubts, had I been the Visa Officer, I am satisfied that the Visa Officer's conclusion on this point was well within the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, above, at para. 47). On an application for judicial review, this Court's task is not to reweigh the evidence.
47 As to the declared earnings and annual sales of her company, the Visa Officer raised a concern during the interview regarding how Ms. Pan's company could have achieved sales of RMB$2.4 million in its first year given that she had only invested RMB$60,000 in the company. He observed that, based on such a small initial investment, it would have been necessary for her to turn over her entire inventory approximately 40 times in order to achieve that level of sales.
48 As noted at paragraph 32 above, over the course of repeated questioning by the Visa Officer, Ms. Pan provided several different explanations for how her company was able to achieve RMB$2.4 million in sales in its first year. Based on that verbal exchange, I am satisfied that it was not unreasonable for the Visa Officer to conclude that Ms. Pan's statement that she "invested an additional RMB$200,000 into the company contradicts information provided, is unsubstantiated and raises concerns as to the accuracy of the documentation".
49 Finally, given the discrepancies in the information that Ms. Pan provided with respect to her financial affairs, I am satisfied that it was reasonably open to the Visa Officer to conclude that Ms. Pan had not satisfied him that she had a legally obtained minimum net worth of at least $800,000. Ms. Pan was provided numerous opportunities to address the Visa Officer's concerns regarding this issue. Unfortunately, she failed to avail herself of those opportunities. In my view, after considering all of the information provided by Ms. Pan, it was entirely reasonable for the Visa Officer to have been left with doubts regarding whether Ms. Pan met this requirement of paragraph 88(1)(b) of the Regulations and the requirements of section 90.
50 The onus was on Ms. Pan to provide sufficient credible evidence in support of her application. Unfortunately, she did not meet that onus.
51 The Visa Officer's conclusions were all reasonably open to him and his decision fit comfortably with the principles of justification, transparency and intelligibility (Khosa, above, at para. 59).
VI. Conclusion
52 This application is dismissed.

JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT this application is dismissed.
CRAMPTON J.

CAREGIVER MARRIAGE TO EMPLOYER LEADS TO MISREPRESENTATION

This is a very unique case: a male caregiver enters Canada to work for one employer, then changes employers and does not disclose that she is in fact his wife, that fact is later discovered and it leads to a finding of misrepresentation. This case is curious, because it leaves the reader to wonder how and why this has happened. If the caregiver was planning to marry the new "employer", why would he then enter Canada under a caregiver Work Permit and not simply get married and file a spousal sponsorship? Alternatively, if the caregiver met his wife after entering Canada, why not simply file an application for sponsorship and continue to work for the original employer for a brief period of time, since the spousal sponsorships are adjudicated quickly? It appears that the caregiver may have had a "plan" before entering Canada, obviously based upon wrong assumptions or a poor understanding of immigration law, and even perhaps bad advice. Strange case indeed.... or may be this is a situation like that in the old TV series "Who is the Boss?"....


de Lara v. Canada (Minister of Citizenship and Immigration)

Between
Joseph Stephen de Lara, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2010] F.C.J. No. 1035
2010 FC 836

Docket IMM-6186-09

Federal Court
Vancouver, British Columbia

Mandamin J.

Heard: August 3, 2010.
Judgment: August 23, 2010.
(35 paras.)

________________________________________

REASONS FOR JUDGMENT AND JUDGMENT

1 MANDAMIN J.:-- Mr. Joseph Stephen de Lara applies to this Court pursuant to section 72 of the Immigration and Refugee Protection Act, (2001, c. 27) (IRPA) for judicial review of an exclusion order made against him November 19, 2009 by the Immigration Division of the Immigration and Refugee Board.
2 Mr. de Lara is from the Philippines and applied in 2005 for a work permit authorizing him to work in Canada as a live-in caregiver for a family member. He applied for an extension of this work permit in 2008, which was granted. One month after this work permit was granted he applied to change his employer, which was also approved.
3 On return from a visit to the Philippines in 2009, Mr. de Lara was interviewed by an immigration officer at the Vancouver Airport. During this interview he admitted he was married to his latest employer. He did not disclose his marriage when he applied to change the employer listed on his work permit in 2008.
4 The airport immigration officer filed an inadmissibility report pursuant to paragraph 44(1) of IRPA. The report was reviewed by the Minister's Delegate who conducted a further interview of Mr. de Lara. Upon Mr. de Lara's confirmation that he had been married to his prospective employer, the Minister's Delegate referred the matter for an admissibility hearing before a member of the Immigration Division as provided by section 44(2) of IRPA.
5 An admissibility hearing was held on November 19, 2009. The Member found Mr. de Lara was inadmissible to Canada for misrepresentation, as set out in paragraph 40(1)(a) of IRPA, and issued an exclusion report against Mr. de Lara as provided in paragraph 45(d) of the Act.
6 Mr. de Lara applies for judicial review of Member's decision.
Background
7 Mr. de Lara first applied to work in Canada as a caregiver for his sister in 2005. This familial arrangement was disclosed and accepted by the Canadian Immigration Centre (CIC). Mr. de Lara began and continued to work under the auspices of the work permit as a Live-in Caregiver from May 2007 to July 2008.
8 Mr. de Lara married Dorothy Mandonahan in Pasig City, Philippines on March 2, 2007. They had two children together, one born in November 2007 and the other born in September 2008. Ms. Mandonahan also has two older children from a previous marriage.
9 On February 25, 2008 Mr. de Lara applied for an extension of his work permit. On this application Mr. de Lara put a check in the application box marked "Never Married" and did not list having any family members in spite of being married to Ms. Mandonahan and having one child with her at that time. This extension application was granted.
10 On March 22, 2008 Mr. de Lara applied to change the employer listed on his work permit from his sister to Ms. Dorothy Mandonahan. He again indicated he was "Never Married". His request in this application was:

• "TO CHANGE MY EMPLOYER FROM MR. AND MRS. MANUEL AND IRENE TULENTINO TO MS. DOROTHY MANDONAHAN."
11 The immigration officer who issued the work permit did not know that the proposed new employer, Ms. Mandonahan, was Mr. de Lara's wife. In her declaration the officer deposes she would have referred the case to a more senior officer for further consideration, had she known about the relationship.
12 This employer/spousal relationship was not discovered until September 29, 2009 when Mr. de Lara returned from visiting family in the Philippines and was questioned by an immigration officer at the Vancouver Airport about the details of his work permit. At that time Mr. De Lara acknowledged being married to Ms. Mandonahan.
13 Officer Liang, who interviewed Mr. de Lara, filed a paragraph 44(1) IRPA report alleging the Applicant breached the Act by misrepresentation and referred the matter for review by the Minister's Delegate.
14 In the Minister's Delegate review, another immigration officer interviewed Mr. de Lara. The interview included the following exchanges:



Q:
What is your relationship with Dorothy Mandonahan?



A:
She is my wife.

And



Q:

Why did you not disclose your relationship with your employer when you applied for your work permit?



A:

I only continued with what I had when I started with. I was single when I first applied, I didn't know how to change it. It was my intention when I changed it for 24 months to ask the agency how to do it. I didn't know what agency to ask. I applied fro [sic] my new work permit in July 2008, I am not very sure.

And in response to being presented with the airport immigration officer's report:



Q:
... Do you understand this report?




A:

Yes, I misrepresented myself. I have a question, who should I have given this information to?

15 This exchange led to an admissibility hearing at the Immigration Division to further examine the allegation that Mr. de Lara misrepresented himself and to decide if an order for his exclusion from Canada should be made.
16 The admissibility hearing was held on November 19, 2009 in Vancouver, where the presiding member decided Mr. de Lara was inadmissible to Canada and ordered his exclusion.
Decision Under Review
17 The Member's decision and reasons are recorded in the transcript of the hearing and reads as follows:

• I have reviewed the materials and I have heard the submissions of both parties. It's quite clear, Mr. De Lara, that you are inadmissible to Canada for misrepresentation. The law requires that I make an exclusion order against you and I so order. I'll explain my reasons to you.

• You were married in March of 2007 and the person that you married was, until recently, your current employer. After being married, you signed two different applications. One was signed on the 25th of February, 2008; the second was signed on the 25th of May, 2008. The first one I believe was simply to extend your employment with a past employer and the one signed on May 25th, 2008, was to apply to change your employer from your previous employer to a person who is now your wife.

• Clearly your marital status at that time would have been of interest to the person who was deciding whether or not to issue a work permit. And we have a statement on page 8 form the person who issued the work permit to you saying that had she known that you were married to Dorothy Mandonahan, she would not have issued a work permit to you at that time.

• So you made a misrepresentation and that misrepresentation certainly was one that induced or could have induced an error in the administration of the Act because a work permit was issued to you in a situation where a work permit would not have been issued to you. That makes this a material misrepresentation and accordingly, you are inadmissible for misrepresentation.
Legislation

• Immigration and Refugee Protection Act, (2001, c. 27)

• 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;

• ...

• 44.
(1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
• (2)
If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

• ...

• 45.
The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:

• ...

• (d)
make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
(emphasis added)
* * *

• 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;

• ...

• 44.
(1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre.

• Suivi

• (2)
S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi.

• ...

• 45.
Après avoir procédé à une enquête, la Section de l'immigration rend telle des décisions suivantes :

• ...

• d)
prendre la mesure de renvoi applicable contre l'étranger non autorisé à entrer au Canada et dont il n'est pas prouvé qu'il n'est pas interdit de territoire, ou contre l'étranger autorisé à y entrer ou le résident permanent sur preuve qu'il est interdit de territoire.
Issue
18 The Applicant focuses his submissions on the way the first two immigration officers conducted their inquiries into his misrepresentation. He argues the immigration officials breached their duty of procedural fairness.
19 I do not agree that an issue of procedural fairness arises in the circumstances of this matter. When an applicant believes that there has been a breach of procedural fairness, he is expected to object at the earliest opportunity: Uppal v. Canada (Minister of Citizenship and Immigration), 2006 FC 338 at paras. 49-55 (Uppal). The Applicant had the opportunity to address any perceived procedural unfairness during the review by the Minister's Delegate and again during the admissibility hearing by the Member of the Immigration Board. The Applicant did not raise the issue of procedural fairness earlier and is precluded from doing so now.
20 In my view, the only issue before me is whether the Member committed a reviewable error in coming to his decision either in regards to his finding of a material misrepresentation or in the issuance of the exclusion order.
Standard of Review
21 Since Dunsmuir v. New Brunswick, 2008 SCC 9, two standards of review are recognized at common law: reasonableness and correctness. The Supreme Court provides that a standard of review analysis is not required on judicial review where the appropriate standard is well settled in the jurisprudence.
22 Other cases involving similar questions as in this judicial review have reviewed decisions on the standard of reasonableness. Those include Karami v. Canada (Minister of Citizenship and Immigration), 2009 FC 788, Iamkhong v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 1349 and Canada (Minister of Citizenship and Immigration) v. Deol, 2009 FC 990.
23 Accordingly, I will proceed on the basis that the standard of review is reasonableness.
Analysis
24 The Applicant's approach at the admissibility hearing was to admit to the misrepresentation and ask for consideration for a stay of removal on humanitarian and compassionate grounds, relating to the best interests of his children, and to hardship for his wife and for the family as a whole.
25 The Applicant submits the Member erred in law in failing to have regard for procedural fairness on the part of the immigration officer's at the airport interview and the Minister's Delegate's review.
26 As I have said, the Applicant did not raise this issue earlier and may not do so now. In Uppal, the Court found that the applicant had waived his right to challenge procedural fairness with respect to the paragraph 44(1) report since he had not objected before or at the Immigration Division where he was represented by counsel. Uppal has application here and I draw the same conclusion. The Applicant admitted his misrepresentation three times and cannot withdraw that admission now.
27 The Applicant submits the Board erred by failing to consider that his mistake was innocent and that it had no material effect on the issuance of a caregiver work permit to the Applicant. The Applicant submitted during oral submission that the Member erred in law when he commented on the fact the Applicant worked as a live-in caregiver stating: "I don't understand how the arrangement could be characterized as one of employee-employer."
28 I consider the Member's comment quoted above as arising in the course of the hearing and not carried into his decision. The Member clearly considers the statutory definition set out in paragraph 40(1)(a) defining a misrepresentation as one which "directly ... misrepresents ... material facts relating to a relevant matter that induces ... an error in the administration of IRPA." The Member refers to evidence before him, the affidavit of the immigration officer which indicated that had she known of the marriage to the prospective employer she would not approved the application to change employers and referred it to a senior officer for evaluation. The Member did not err in coming to the conclusion the misrepresentation was material.
29 The Member's decision falls squarely into the range of possible, acceptable outcomes that are defensible with respect to the facts and law (Dunsmuir, para. 47).
30 The Applicant argues the Member gave no weight to his attempt to correct an "innocent mistake", that he failed to consider the humanitarian and compassionate submissions, and that he ignored the objectives of the Live-in Caregiver Program.
31 All three of these arguments fall outside of the Member's mandate pursuant to paragraph 45 of IRPA. The Member was concerned with one question alone: Was there a misrepresentation as understood by section 40(1)(a)? If so, section 45(d) of the Act required the Member to make an exclusion order, which he did.
32 The Applicant proposes five questions of general importance for certification, all of which I find unsuitable for certification.
33 The first two questions posed by the Applicant relate to the duty of the airport immigration officer and the Minister's Delegate. However, the sole issue before the Court on this judicial review relates to the decision of the Member of the Immigration Division. In that respect, the Applicant seeks to pose hypothetical questions not relevant to this judicial review.
34 In the remaining three questions posed, the Applicant raises issues of whether the Member is obligated to conduct a hearing into the merits of the report by the Minister's Delegate or obtain further information either with respect to the bona fides of the employment contract or the Applicant having an honest and reasonable belief he was not withholding material information. The short answer is that it is for the Applicant or his counsel to provide evidence to support the Applicant's position. It is the Member's role to assess, not marshal, the evidence.
35 In result, I consider the Applicant's proposed questions unsuitable for certification.

JUDGMENT

THIS COURT ORDERS AND ADJUDGES that:

• 1. The application for judicial review is dismissed.
• 2. No question of general importance is certified.

MANDAMIN J.

POLITICS BUT NO POLICY

This highlights why immigration policy is being held hostage by politicians who only want to curry favour with ethnic voters, rather than developing sound policies that will ensure Canada's economic competitiveness, financial success and demand commitment to the country by those who come to Canada.


India vows to crack down on unscrupulous immigration agents - thestar.com


India vows to crack down on unscrupulous immigration agents

September 10, 2010

Rick Westhead


NEW DELHI—Canadian Immigration Minister Jason Kenney visited India this week to discuss ways local police might be compelled to crack down on crooked travel consultants who sell the false promise that they can guarantee passage to Canada.

But as Kenney left the country on Friday — after debating the NDP’s Olivia Chow on Twitter over whether Canada refuses too many visa requests from Indian applicants — the top cop in India’s Punjab state said there is no problem with policing and immigration fraud cases are investigated appropriately.

“There is no such problem,” said P.S. Gill, the director general of Punbaj’s police force. “Immigration fraud cases that are there are being investigated properly. We have no difficulty.”

Gill’s comments are curious because they came hours after Kenney said senior Indian government officials have promised to beef up penalties for unscrupulous immigration agents. The agents typically provide prospective university and college students as well as others with fake bank statements and other doctored documents to support their visa requests — which are usually rejected.

Kenney said in an interview that Punjabi police have been half-hearted in their attempts to crack down on illegal immigration agents. Following a meeting in January 2009, Kenney expected police would appoint an envoy to work with Canada’s diplomatic mission in Chandigarh, Punjab’s state capital.

But since then, Kenney said, “It seems to be hit and miss. There has been no ongoing work with our consulate in Punjab. There has been no ongoing work with our consulate . . . It’s unbelievable what’s going on up there.”

Kenney said he’s more optimistic now because he has received assurances from Home Minister P. Chidambaram, External Affairs Minister Preneet Kaur and Overseas Indians Minister Vyalar Ravi that the government here will introduce a law this year that will improve regulation of immigration agents.

Kenney said Canada has increased efforts to attract skilled labour from India. For many years, the vast majority of permanent resident visas given to India were in the so-called family class visa category. But that’s changing.

In 2005, 55 per cent of the 27,193 permanent resident visas granted to Indians were family-class visas while 27 per cent were economic class visas given to skilled workers.

But from January to March 2010, family class visas accounted for 27 per cent of the 8,288 permanent resident visas issued, while economic class visas accounted for 71 per cent.

Statistics also show Canada’s ties to India are broadening outside Punjab. In 2005, 41 per cent of permanent resident visas were given to Indians from Punjab. But during the first quarter of this year, that had slipped to 34 per cent.

As Kenney met with Indian officials here, Chow, the NDP’s immigration critic, took to Twitter in Canada, writing that it’s “unacceptable” that one out of two Indians who apply at the Canadian mission in Chandigarh for a visitor’s visa are refused. Chow also wrote that only 29 per cent of student visas are approved.

Kenney fired back with his posts, writing 42 per cent of student visas are now approved in Chandigarh and that the overall approval rate there for visas is now 48 per cent.

Some Canadian diplomats have worried that using approval rates as benchmarks is dangerous territory.

“If the refusal rate is 90 per cent because our immigration agents have determined 90 per cent of applicants are at risk to overstay or present other risks, then that’s just what it should be,” said a former Canadian diplomat posted in India. “It’s not something that should be used as a metric for success.”

Kenney defended his online debate.

“The reason I did it is because there are urban legends and unfair criticism of our officials,” he said. “There’s an urban myth in Canada that we reject 90 per cent of applicants from Punjab. That’s completely false and I wanted to demonstrate that.”

And if the visa approval rate slips, Kenney said he’s “prepared to take responsibility for the decisions made and to defend them.”

REACTION TO TAMIL ILLEGAL SHIPS PREDICTABLE

No one should be surprised about this. People have a hard time distinguishing between legal and illegal immigration, and they see that illegals are rewarded while legal immigrants wait for years....bad policy.

Canadian view of immigration sours in wake of Tamil ship - The Globe and Mail

CANADA SEEKS HELP TO CURB FRAUD

All mayor newspapers reported this story today in some form. This is not surprising, but fails to address the problem of asylum forum shopping. Not surprisingly, Canada is one of the top three destinations for asylum-seekers now in the EU, as it is viewed as "soft" and failed or bogus claimants and those who "advise" them to come to Canada illegally know that, in the end, most get to stay. The economic magnets aer also a driving force: social assistance, free medical and health services, legal aid, free public education, etc. If the government wants things to change, then it must address the root causes of the problem.

Canada seeks answers to immigration-fraud issues in Europe - The Globe and Mail