Monday, February 28, 2011


See story below.. The best thing young Irish professionals can do BEFORE they embark upon the immigration process is to get good legal advice from a seasoned immigration lawyer who understands the process and can develop a coherent strategy to make immigration a success. Beware of of those who are not lawyers promising jobs and "guaranteed" residency, and never leave home without a good plan. Hope is not a strategy. Good legal advice is not free, but in the end it would save money, headaches and frustration, not to mention the danger of illegality and possible deportation.

A new wave of young Irish workers head for Canada

A new wave of young Irish workers head for Canada

Tamsin McMahon, National Post ·
Monday, Feb. 28, 2011

On a chilly night last month, nearly 300 Irish men and women gathered at a downtown Toronto pub. The catch: they weren't there for a night of drinking, but for a sold-out seminar on how to navigate Canada's immigration system and find a job.

And they aren't the only ones. Ireland's Economic and Social Research Institute estimates that nearly 1,000 people are leaving the Republic each week. Most are young and educated and desperate to escape the country's economic woes, creating the largest exodus since the 1980s. And as they look abroad for new opportunities, the Irish are increasingly choosing Canada.

Traditionally, Irish economic migrants have flocked to the United Kingdom, the United States and Australia. But Canada has seen a recent explosion in the number of Irish youth arriving, lured by its reputation of having weathered the global economic turmoil better than most countries.

"Worldwide, [Canada] is looking like the superstar of how to manage your economy," said Eamonn O'Loghlin, executive director of the Ireland Canada Chamber of Commerce. "So you have all these young, educated, highly skilled people in Ireland who are suddenly in a situation where there are very few jobs. They're looking around and they see how Canada has come through the recession and they see more opportunity here."

The number of temporary workers coming to Canada from Ireland has doubled since 2004. The upward trend began before the global recession. With demand for jobs abroad increasing, the Irish government pressured Canada to increase the number of working holiday visas given to their young people. These visas allow citizens of Ireland (and certain other countries) between the ages of 18 and 35 to work in Canada for up to two years. Canada plans to issue 5,000 of the visas to Irish citizens this year. That is double the number offered in 2009, and all will probably be taken, said Ray Bassett, Ireland's Ambassador to Canada. Last year, Canada planned to offer 4,000 working holiday visas but granted 4,229 due to demand.

"Canada's stock around the world has grown very, very considerably in the recent economic crisis and there has definitely been a big surge in immigration," Mr. Bassett said. "We'd prefer if our people didn't have to move, but they do at the moment because there isn't enough jobs and we're going through an economic downtown. The worst thing in the world would be if we didn't face up to that fact."

In the past, most working holiday visas went to students taking time off to go abroad, allowing them to work at bars and ski hills to pay for their vacations. These days, the visas are increasingly being sought by skilled workers struggling to find work in Ireland's mori-bund construction industry, along with university graduates looking for a quick way into Canada in the hope of finding full-time employment with a company that will eventually sponsor them.

" The numbers have changed, and probably the complexity of the migrants have changed," Mr. Bassett said. "There's probably a broader sweep of the socioeconomic group than I would say there was in the past."

Even people who immigrated to Ireland during the boom are leaving the country and using their Irish work experience to get entry into Canada, said Chris Willis, a Montrealbased immigration consultant whose practice specializes in migration from Britain and Ireland.

He has noticed a sharp increase in business. "I had over 300 people show up to a seminar in Cork and over 200 in Galway, and there's a trade show in Dublin which had about 4,000 people come through the doors in two days," Mr. Willis said. "So those are pretty significant numbers."

In Ireland, the exodus is seen as a mixed blessing. It helps keep the country's unemployment rate, predicted to remain around 13% for the next two years, from skyrocketing. But it also means huge numbers of skilled workers are leaving in search of jobs.

"There's a fairly steady stream of inquiries from people who might be asking for help or information if they're thinking of going to work in Canada," said Sean Heading, of Ireland's Technical Engineering and Electrical Union, which held a seminar in November for unemployed skilled workers looking to work abroad. The sessions included representatives from Alberta's construction unions.

Mr. Heading worries about the dim economic opportunities in Ireland for his two teenaged sons. "I would not like to think that the only pros-pect they will have is emigration," he said. "We don't want to be exporting all our young people. It's not a nice prospect for mothers and fathers to be facing."

Increasing emigration put renewed pressure on the Irish government to allow expatriates to vote in Friday's general election. (Non-residents were not allowed to cast ballots.) The restriction was put in place to keep Ireland's huge diaspora from dominating the vote: The estimated three million Irish passport-holders living abroad would roughly equal the number of domestic voters.

"I have a network of friends around the world ... because everyone has left," said Brian Reynolds, a 29-year-old who moved from Ireland to Toronto 18 months ago and started, a website that allowed members of the Irish diaspora to cast a mock vote. "There's a lot of talk about the situation back home and the government and who's to blame and how it's going to recover. That kind of discussion wasn't ever there among my friends before now."

Mr. Reynolds said most workers have left so they would not be a drain on the unemployment system, and are using their earnings in Canada and elsewhere to pay down their debts in Ireland. Many are looking to move home when the economy recovers. He argues they should have had a say in the country's most-watched national election in years -in which longtime ruling party Fianna Fáil was booted out of office.

"If we could sort out the economy soon, and make it so jobs are increasing rather than decreasing, then I think we can get all the people back very quickly," he said. "I do have a lot of friends [who are] taking a few years out, letting Ireland get back on its feet, and they'll be back there to set up family and have kids."

Mr. Reynolds' own future is "up in the air." His girlfriend is sponsoring him as a permanent resident in Canada.

However, he said, "I'd say my future lies back in Ireland."


The perils of letting a stranger into your home are evident in the story below, where it is difficult to know the real facts that transpired. Employers should take reasonable steps to protect themselves from potential problems, check references thoroughly, safeguard their privacy, and monitor the activities of caregivers carefully. This is particularly important where caregivers are left alone with children or with the elderly for long periods of time.

Employers worry some use caregiver program as front to enter Canada - Winnipeg Free Press

Employers worry some use caregiver program as front to enter Canada

By: Diana Mehta, The Canadian Press

Posted: 02/27/2011 6:02 AM

TORONTO - Caje Fernandes feels cheated by the system.

The father of two preschoolers in Pickering, Ont., was left scrambling for alternatives after the live-in caregiver he sponsored into the country from Hong Kong walked out just three months into her two-year contract.

It's not so much the fact she left that irks Fernandes. It's how she did it.

"She came here with a motive," he says, frustrated. "We were used."

Fernandes, 45, believes new federal regulations introduced last April have left Canadian employers more vulnerable to a relative handful of unscrupulous individuals who are using the caregiver program as a front to enter the country.

His nanny said she knew no one in Canada, which is why Fernandes was shocked to encounter a group of strangers at his door, claiming to be her relatives. They accused him of abuse and demanded she leave with them.

The situation ended with police in his hallway, asking his nanny if she had been mistreated.

"I told the cops, ‘I don’t know what’s going on,'" says Fernandes. "I didn’t want these problems, I’ve got two little kids."

His caregiver left a week later after her "relatives" showed up again. When Fernandes complained to immigration authorities and his MP, he was told it was between him and his caregiver.

"The sad thing is, bad people can get away with this," he said. "The government is doing nothing."

Confronted with an aging population and the soaring cost of daycare, Canadians who need help caring for their loved ones are turning more and more to the live-in caregiver program, which has its own specialized category within the Temporary Foreign Worker Program.

The caregiver program can lead to permanent residence for applicants who successfully complete 24 months or a total of 3,900 hours of authorized full-time employment.

The changes made by the Conservative government last year shifted more financial responsibility onto would-be employers to improve protections for caregivers.

As a result, employers are now required to pay for a caregiver's medical coverage, airfare, recruitment fees and health insurance — the bill usually totals between $3,000 to $4,000 — and agree to a contract outlining clear overtime provisions.

Successful applicants get a four-year work visa, but have no legal obligation to remain with the family that brought them in.

The changes were introduced in the wake of several high-profile cases of alleged caregiver abuse, including one where two nannies hired by federal MP Ruby Dhalla complained their passports had been seized and they were not paid.

There's nothing wrong with the government safeguarding the rights of caregivers, but their prospective employers deserve some measure of protection as well, Fernandes argues.

It's stories like his that Manuela Gruber Hersch is trying to bring to light.

The director of the Association of Nanny and Caregiver Agencies (ACNA) says employers are growing increasingly concerned about the risk of being duped.

"People are more and more upset now, because not only is it emotional exploitation, it’s financial exploitation as well."

Gruber Hersch, who came to Canada as a caregiver years ago and now runs her own nanny recruiting agency, has set up a phone line where employers and caregivers can air their grievances.

Employer complaints range from caregivers leaving within two weeks to find jobs in cities where they have family, to some who never show up for work at all, she says.

But while their frustration is clear, Gruber Hersch says she's struggling to avoid being seen as the villain in her appeals to the government to improve the system.

"We’re totally against any exploitation and abuse of live-in caregivers,” she says. "But we also need balance for families.”

The Conservative government, however, has made its position abundantly clear.

"I understand that there are some well-funded pressure groups trying to portray live-in caregivers as frauds, as criminals out to game our immigration system," said Alykhan Velshi, spokesman for Immigration Minister Jason Kenney.

"We reject their vitriol absolutely. Their charges are offensive."

While Kenney’s office acknowledges the frustrations of an employer like Fernandes, it says they need to be balanced against the interests of caregivers, who require a degree of mobility within the Canadian labour market.

"This is an essential element in reducing the potential for caregivers to be subject to abuse by their employers," Velshi said.

Statistics provided by Kenney’s office indicate more than 90 per cent of live-in caregivers eventually apply for permanent residence; of that number, approximately 98 per cent of applications are approved.

"Clearly, the vast majority of caregivers are committed to living up to their responsibilities under their employment contract and our immigration law," Velshi said.

But Liberal immigration critic Justin Trudeau says the Tory government shouldn’t blatantly ignore the concerns of Canadian employers.

"It becomes our responsibility to make sure people who come here are not being exploited; however, the changes, on the other hand, mean that Canadian families are assuming a very high degree of risk in terms of whether or not the caregiver will stay with them," Trudeau said.

The emotional duress faced by an abused caregiver can't compare to the financial stress and inconvenience of an employer who's left in the lurch, Trudeau stressed.

But as Canadians grow ever more desperate for in-home care, they face a growing risk themselves, he says.

"This government has allowed people to get to the point where one of their only options is (the live-in caregiver program), and because of that there is a larger vulnerability," Trudeau said.

Presently, a live-in caregiver enters the country with the name of their employer stamped on their work permit. If a caregiver changes jobs, they need to reapply for a work permit, which will then carry the name of their new employer.

It’s a fairly simple process designed to allow caregivers to leave abusive workplaces with ease. But, Gruber Hersch points out, it also allows less scrupulous individuals to hang honest employers out to dry.

"To be honest, the live-in caregiver group needs to be revamped from top to bottom."

On that point at least, Gruber Hersch and a number of caregivers agree.

The program could always use improvement, said Terry Olayta, a 58-year-old former caregiver who now runs the Caregivers Resource Centre in Toronto. Caregivers, employers and the government need to sit down and hammer out a solution, she said.

But many of the recent complaints about dishonest caregivers are being fuelled by disgruntled recruiting agencies, which can no longer charge foreign workers to come to Canada, Olayta added.

To complicate matters further, caregivers still have to beware scammers overseas who overcharge workers desperately seeking a better life in Canada.

"Between the employer and the caregiver, it's the caregivers who are the most vulnerable," she said. "Our position is to protect what little gains we've had."

Friday, February 25, 2011


See case below and decide for yourself.  In doing so note that a person can be deported with only one conviction in many cases, even if he or she has a job and tries to make mends. However, the message from the case below appears to be that if a person accumulates dozens of convictions, is an alcoholic, has no job, is completely dependent for support, but has "depression" , then he can get a reprieve. What do you think? Should a person with over 30 convictions in ten years, but with "depression", be treated with more leniency than a person who has one offence only? And how was it possible that CBSA did not pursue this individual after the first few convictions? Why do they allow some, but not other cases to reach such a high number of convictions?  Why do they pursue more vigorously people with convictions such as DUI than others? Is there a double standard?  Voice your opinion.

Ludu v. Canada (Minister of Public Safety and Emergency Preparedness)
Harpal Singh Ludu, appellant, and

Minister of Public Safety and Emergency Preparedness, respondent

[2010] I.A.D.D. No. 896

[2010] D.S.A.I. no 896

No. TA3-09807
Immigration and Refugee Board of Canada

Immigration Appeal Division

Toronto, Ontario
Panel: Pamila Ahlfeld
Heard: June 17, 2010.

Decision: June 24, 2010.

(26 paras.)

Removal Order

Reasons for Decision


1 These are the reasons1 for decision in the appeal of Harpal Singh LUDU (the appellant) from the removal order dated April 30, 2003 issued against him by Member Iozzo of the Immigration Division pursuant to subsection 36(1)(a) of the Immigration and Refugee Protection Act (IRPA).2 The basis of the removal order is the appellant's conviction in Toronto, Ontario on 4 January 2002 for assault causing bodily harm and forcible confinement contrary to sections 267(B) and 279(2) of the Criminal Code.3 Additionally, the appellant was convicted in Toronto on November 20, 2002 of assault with a weapon contrary to section 267(A) and two counts of uttering death threats contrary to section 264.1(1)(a) of the Criminal Code4.

2 There was no challenge to the validity of the removal order and the panel finds nothing in the evidence that would render the order legally invalid. Accordingly, the panel finds that the removal order is valid in law.


3 At issue in this case is whether, taking into consideration the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.5


4 For the reasons outlined below, the panel finds that taking into consideration the best interests of a child directly affected by this decision, there exist sufficient humanitarian and compassionate considerations to warrant the granting of a stay of removal for three years.


5 The appellant was born in India on October 3, 1980.6 He came to Canada as the dependent of his mother who was sponsored under the family class. He became a landed immigrant on February 11, 1999.7

6 The appellant testified that he currently lives with his mother. He stated that he is single and he has no children.

7 The appellant's family in Canada consists of his mother, his sister and his brother. He testified that he has no family members in India.

8 The appellant has numerous convictions since 2001 (more than 30) including convictions after the issuance of the deportation order.8 Many of the appellant's convictions are violent including those convictions which are the subject of this report.

9 The appellant had his initial hearing on July 12, 2006. Evidence was heard and that hearing was adjourned so that two witnesses could be heard. Unfortunately, the Member who was seized of that case left the Immigration Appeal Division. The hearing resumed on June 20, 2007 by this panel and the parties requested that I proceed on the basis of the transcript from the first hearing.

10 At the end of the hearing on July 12, 2007 I ordered the transcript from the first sitting; however, the recording could not be found. It was therefore decided that I would hear all of the evidence at a new hearing.

11 In the interim, the appellant was in a serious motor vehicle accident and not fit to testify. With other issues that arose, the next hearing date was set for November 3, 2009. During the course of the hearing, the appellant testified that he was under the care of the official guardian's office and he was unable to explain why. He submitted into evidence a letter from Dr. Pilowsky who indicated that the appellant struggles with severe depression.9 As I was not confident about the appellant's understanding of the procedure and in view of the information that came out at the November hearing, I adjourned the proceedings in order to get medical evidence to determine whether or not the appellant required a designated representative.

12 The appellant submitted an assessment from the assessor under the Substitution Decisions Act 1992 through his counsel on January 26, 2010.10 The appellant was deemed incapable of looking after property.11 After two interviews, the assessor some of the following in his report:
• In spite of repeated explanations in both English and Punjabi on the occasion of both interviews (April 21 and May 5, 2009) Mr. Ludu had difficulty understanding the purpose of our meeting beyond the fact that it somehow related to money he may receive from his legal counsel in connection with the 2007 injuries. Even at the end of the second interview he remained unable to provide a reasonable explanation of the purpose of our meeting and clearly did not comprehend the significance of a finding of either capable or incapable stating to the translator "If the doctor tells me I can explain."
• ...

• Mr. Ludu is subject to significant memory impairment that interferes with his ability to retain and process information of reasoned decision making. He lacks insight into the extent of his limitations and the nature of other aspects of his functioning (i.e. Alcohol use, nature of relationships with others) and the probable outcomes inherent to the same. In this regard he fails to fully comprehend and is unable to weigh information in a manner that enables him to make reasoned decision and the probable implications/outcomes inherent to decisions he may make.12

13 In light of the report and findings of the assessor as well as Dr. Pilowsky's report that the appellant suffers from severe depression, I was of the view that a designated representative was required in this case. Accordingly, the appellant's friend, Naseer Ahmad, was appointed as a designated representative.

14 It was apparent that I would be unable to elicit any more meaningful testimony from the appellant given his cognitive disability and I therefore opted to hold a case conference on June 17, 2010 with the appellant, his counsel, his designated representative and counsel for the Minister. The appellant's mother and sister also came to the conference in support of the appellant.

15 Counsel for the Minister indicated that he could not agree to the issuance of a stay of removal considering the appellant's long and violent criminal record, even though he stated that he recognized that removing the appellant at this juncture did not appear to be an option. Counsel for the appellant asked that I grant the appellant a stay of removal; that since 2008 he has not had any further convictions and that he lives a fairly quiet life with his mother; that he no longer poses a threat to the Canadian public.


16 The panel remains guided in the exercise of its discretion by the factors outlined in Ribic,13 approved by the Supreme Court of Canada decision in Chieu14. These factors, which are not exhaustive, are:
• i) the seriousness of the offences leading to the deportation order;
• ii) the possibility of rehabilitation;

• iii) the length of time spent in Canada and the degree to which the appellant is established here;

• iv) the family in Canada and the dislocation to the family that deportation would cause;

• v) the support available to the appellant, within the family and within the community; and,

• vi) the potential foreign hardship the appellant will face in the likely country of removal.

17 The panel is also guided by section 3(1)(h) of IRPA which states:

• 3. (1) The objectives of this Act with respect to immigration are:

• (h) to protect the health and safety of Canadians and to maintain the security of Canadian society.

18 The panel is "alert, alive and sensitive" to the best interests of any child directly affected by the removal of the appellant.15

19 There is no question in the panel's mind that the appellant is extremely dependent on his support system in Canada. He lives with his mother and maintains a relationship with his siblings. According to information provided throughout the hearing of this case, the appellant has no one in India to care for him.

20 From the testimony that I heard at my first sitting, which was in June 2007 it was evident that the appellant had an ongoing alcohol problem. He had also been diagnosed by Dr. Srinivasan with depression with psychosis.16 The appellant's problems were exacerbated after his motor vehicle accident on October 26, 2007 when he was hit by a car.17 The appellant who was a pedestrian and who was drunk at the time of the accident sustained numerous physical injuries which include closed head injury, pelvic fracture with dislocation of the symphysis pubis, right sacral wing fracture, left knee injury, left shoulder sprain and atrophy and possible left axilliary nerve damage, right elbow sprain, left knee sprain, headaches, cervical spine strain, thoracic sprain and lumbar joint sprain.18

21 According to a recent report by Dr. Jeremy Hall, attached to his counsel's submission of April 28, 2010, the appellant, while slowly recovering, is still experiencing quite a bit of pain, most significantly in his left shoulder and pelvis. His doctor indicated that together these injuries may cause the appellant difficulties with his daily activities and his employment opportunities would be somewhat limited.

22 I find that the appellant's physical and mental condition is currently such that removal from Canada at this time would cause him significant and undue hardship. He has become very dependent upon his mother with whom he lives. It is questionable as to whether or not the appellant will be able to work in the future. Even prior to the motor vehicle accident, the appellant had a poor employment history and he was unable to show any steady employment pattern. He has no assets and he is clearly not established in Canada. While this factor weighs against the appellant, the hardships that he would endure if he were removed from Canada currently outweigh the other factors.

23 That being said, if the applicant wants to remain in Canada, he will have to remain crime-free. His record is significant and at times violent. In my view and from the numerous reports on file from health care professionals, the appellant's poor behaviour is directly linked to his drinking. Since his arrival in Canada in 1999, he seems to have had a drinking problem. The bulk of his criminal offences occurred during periods when he was intoxicated. This poses a real problem. Although the appellant indicated at his hearing in 2007 that he wants to give up drinking and he believes he will, to date he has not. While the probation report tendered for this conference indicates that the appellant has participated in counseling programs for alcohol abuse and he currently reports no alcohol consumption, at the case conference the appellant told the panel he had a few drinks last week at a friend's home.19

24 It would be unrealistic in my view to expect that the appellant, who has been an alcoholic for so many years, is going to become alcohol-free. It appears that he has continued to drink over the last two years in some limited capacity and he has been able to remain crime-free. He stated at the conference that he thinks he can stay away from alcohol but I am of the opinion that imposing a condition that he cannot drink at all would be setting him up to fail. That being said, I think it is incumbent upon me to ensure that he continues to get help with his alcoholism as well as ongoing counseling. I will impose the condition that the appellant attend Alcoholic's Anonymous and that he provide evidence that he has a sponsor at his first reporting date. Furthermore, I am going to impose a condition that the appellant seek and obtain counseling from a professional of his choice.

25 The appellant will need to be proactive in his ongoing mental and physical treatments to ensure that his condition does not cause him to commit any further offences. I explained to the appellant in front of his designated representative and his family members that a further serious conviction could result in his removal from Canada by operation of law and that non-compliance with the conditions as set out below could also result in his having to come before this tribunal again.


26 Having considered all of the evidence presented to date, I am therefore satisfied, taking into consideration the best interests of a child directly affected by the decision, that there are sufficient humanitarian and compassionate considerations to warrant the granting of a 3-year stay in light of all of the circumstances of this case.


The removal order in this appeal is stayed. This stay is made on the following conditions - the appellant must:
• Inform the Canada Border Services Agency (the "Department") and the Immigration Appeal Division in writing in advance of any change in your address.
• The address of the Department is:

Canada Border Services Agency, The Greater Toronto

Enforcement Centre,

6900 Airport Road, P.O. Box 290, Mississauga, Ontario,

L4V 1E8.
• The address of the Immigration Appeal Division is: 74 Victoria Street, Suite 400, Toronto, Ontario, M5C 3C7.
• [1] Provide a copy of your passport or travel document to the Department or, if you do not have a passport or travel document, complete an application for a passport or a travel document and to provide the application to the Department.
• [2] Apply for an extension of the validity period of any passport or travel document before it expires, and provide a copy of the extended passport or document to the Department.

[3] Not commit any criminal offences.
• [4] If charged with a criminal offence, immediately report that fact in writing to the Department.
• [5] If convicted of a criminal offence, immediately report that fact in writing to the Department and the Immigration Appeal Division.
• [6] Provide all information, notices and documents (the "documents") required by the conditions of the stay by hand; by regular or registered mail; by courier or priority post to the Canada Border Services Agency, 6900 Airport Road, P.O. Box 290, Mississauga, Ontario, L4V 1E8. It is the responsibility of the appellant that the documents are received by the Department within any time period required by a condition of the stay.

• [7] Provide all information, notices and documents (the "documents") required by the conditions of the stay by hand; by regular or registered mail; by courier or priority post; or by fax to the Immigration Appeal Division at 416-954-1165. Include your IAD file number. It is the responsibility of the appellant that the documents are received by the Immigration Appeal Division within any time period required by a condition of the stay.
• [8] Report to the Department in person (with a written report) at the Canada Border Services Agency, The Greater Toronto Enforcement Centre, 6900 Airport Road, Entrance 2B, Mississauga, Ontario, L4V 1E8 on Friday, November 19, 2010 between 7:30 a.m. to 16:00 p.m., and every six months thereafter:

May 20, 2011

November 18, 2011

May 18, 2012

November 16, 2012

May 17, 2013

• [9] The reports are to contain details of the appellant's:
• - current living arrangements;

• - marital status including common-law relationships;

• - attendance at Alcoholics Anonymous including verification that he has a sponsor;

• - letter from the professional who is providing ongoing counselling.

• - other relevant changes of personal circumstances.

• [10] Engage in or continue psychotherapy or counselling with a professional during the course of this stay of removal. (Note: If you withdraw your consent to the foregoing condition, you must bring an application to the Appeal Division forthwith to have this condition removed.)

• [11] Attend a drug or alcohol rehabilitation program at Alcoholics Anonymous and obtain the assistance of a sponsor. (Note: If you withdraw your consent to the foregoing condition, you must bring an application to the Appeal Division forthwith to have this condition removed.)

• [12] Make reasonable efforts to maintain yourself in such condition that:

• i)

your alcoholism will not cause you to conduct yourself in a manner dangerous to yourself or anyone else; and

• ii)

it is not likely you will commit further offences.

• [13] Not knowingly associate with individuals who have a criminal record or who are engaged in criminal activity, except contact that might result while attending meetings of Alcoholics Anonymous, or any other drug or alcohol rehabilitation program.
• [14] Not own or possess offensive weapons or imitations of offensive weapons.
• [15] Respect all parole conditions and any court orders.

[16] Keep the peace and be of good behaviour.

Take notice that the IAD will reconsider the case on or about the 19th day of June 2013 or at such other date as it determines, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. Until your final reconsideration is decided (or your stay is otherwise ended), your stay remains in effect and you must comply with the conditions of your stay, including advising the Agency and the IAD in writing before any change in your address.

The IAD may contact you by letter in advance of final reconsideration to ask you to provide written confirmation that you have complied with the conditions of stay.


This stay of removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by term of imprisonment of at least ten years) before your case has been finally reconsidered.

"Pamila Ahlfeld"

24 June 2010


Recent article from the Montreal Gazette...massive scam allegations.

Revenue Quebec takes action in immigration scam

Revenue Quebec takes action in immigration scam

By Paul Delean, The Gazette
January 24, 2011

MONTREAL - Revenue Quebec is taking action against a consultant suspected of providing would-be immigrants from Lebanon with false evidence to back up their case for permanent residence and obtain government benefits.

In the wake of searches conducted in 2009 in Laval and Montreal, the Revenue Department has issued 1,722 notices of infraction against Nizar Zakka and his company, Décision Immigration 2000 Inc.

In a communiqué, Revenue Quebec said Zakka and his company helped applicants show they were in Quebec when in fact they were not.

It also alleges he filed or contributed to the filing of 861 false tax returns for at least 380 clients from 2004 to 2007. “These 380 clients weren’t obliged to file returns in Quebec, since they lived elsewhere,” Revenue Quebec said.

It said the false returns led to refunds through claims for childcare expenses and property taxes and the provincial sales-tax credit.


See this interesting Toronto Star article. However, the better question is why there are so many "immigrant settlement agencies" who have over the years managed to develop a sense of entitlement to employ their own groups, and why there are so many immigrants who require assistance and funding when we have hundreds of thousands of applications in the pipeline from people who are ready to work, will not need any assistance, have arranged employment and will begin to contribute immediately upon arrival? There is obviously a disconnect....and no one is wiling to address it..

Dots on a map: Why newcomer funding is taking a hit -

Dots on a map: Why newcomer funding is taking a hit

February 24, 2011
Nicholas Keung
In a conference room at Citizenship and Immigration Canada’s Toronto headquarters on St. Clair Ave., Heidi Jurisic lays out a colour-coded map of the city.

The map — a crucial tool in determining where federal settlement dollars go — shows the location of scores of proposals by community groups for the fiscal year starting April 1, each meant in some way to help new immigrants integrate.

Across Ontario, 452 organizations filed 700 proposals this year, including 145 in Toronto, asking for money for everything from language training to job search workshops. The combined price tag: $734 million.

“We had to look at how many proposals we received for various (geographical) areas,” says Jurisic, the immigration department’s director of settlement services in Ontario. “That influenced our decision-making, because it is only a certain amount of available money that we have to fund these projects.”

Only 260 of the 452 groups got the nod. Many organizations that have served newcomers for years are seeing their funding slashed between 5 per cent and 40 per cent. And across the province, 34 groups, 16 of them in Toronto, will lose all of it — 100 per cent.
All told, Toronto is losing $18 million of Ottawa’s subsidy for immigration services, out of $43 million cut across the province.

The cuts prompted left-leaning Toronto councillors to ask that the city send a protest letter to Ottawa, but their motion lost by a single vote earlier this month. NDP immigration critic Olivia Chow has also tabled a non-binding motion through a House standing committee asking that the cuts be reversed.

On Thursday, Ontario Immigration Minister Eric Hoskins also made public the deepening dispute between the province and Ottawa over immigrant settlement priorities in negotiating an expiring immigration agreement. He announced $500,000 in funding to help relieve agencies affected by the cuts.
“We will not accept an unfair agreement that puts newcomers who settle in Ontario at a disadvantage,” Hoskins said.
Jurisic says that, despite the outcry, the cuts are justified because a declining proportion of Canada’s immigrants are settling here.
Between 2005 and 2009, the number landing in Ontario each year fell by 24 per cent, from 140,525 to 106,867. In Toronto, the number dropped 30 per cent, from 67,550 to 47,240. (Though new figures released Sunday show a slight rise last year, to 51,000 in Toronto.)
“The 13 per cent funding reduction (for Toronto) is significantly lower than what the reduction in the number of immigrants has been,” Jurisic says.
The immigration department currently doles out $138 million to 87 newcomer organizations in Toronto. As of April, that will come down to 75.
No one disputes that services should evolve with changing settlement patterns, and agencies agree that better coordination could reduce duplication and boost results. But they’re upset about the lack of consultation by Ottawa on how cuts could be absorbed and how surviving agencies could cooperate to fill gaps.
“These are significant cuts, and our members only got the news before Christmas,” said Debbie Douglas, executive director of the Ontario Council of Agencies Serving Immigrants, an umbrella group of 200 agencies.
“Let’s look at where the cuts are, where the gaps are, their impacts and how we can deal with it,” she added. “The end results could be similar and the same organizations would disappear. But any form of consultation would’ve made the process transparent and given the sector ownership.”
Douglas said allocating funding based on year-to-year immigrant arrivals doesn’t truly reflect the needs. For years, Ontario got the lion’s share of newcomers, but proportionally the least settlement money from Ottawa. Since a five-year immigration agreement was signed (in 2005), the federal government has been playing catch-up, pumping $700 million extra into Ontario.
Ninety per cent of the federal settlement funding goes to language training and settlement/integration programs. The rest goes to the HOST program, which matches newcomers with Canadian volunteers for community orientation.
The new approach brings Ontario into a funding formula based on immigrant arrivals in each province. Nine provinces will each get $3,400 in settlement funding for every new immigrant who makes that province home. In a separate deal, Quebec gets $5,000 for each permanent resident it receives.
“We reduced the total amount of funding (in Ontario) because we haven’t seen a corresponding increase in the uptake of the settlement programs,” Jurisic said.
For the record, Jurisic said usage of federally funded language, integration and settlement programs increased by 31.6 per cent between 2005 and 2009.
“This will in no way diminish the quality and availability of services for newcomers,” she said. “At the end of the day, what we want to do is to ensure value for taxpayers’ money.”
Immigration Minister Jason Kenney told the Star that he won’t delay or reverse the cuts to Ontario because he has faith in his staff’s judgment.
“More money is not necessarily the solution,” he said. “Better coordination is.”


Interesting article from The Economist.

North American integration: To each his own The Economist

To each his own

The push for deeper ties peters out

North American integration
Feb 24th 2011 MEXICO CITY AND OTTAWA from the print edition

WHEN Canada, Mexico and the United States implemented the North American Free-Trade Agreement (NAFTA) in 1994, it was hailed as a promising first step towards the deeper integration of the continent. Six years later Vicente Fox, then Mexico’s president, called for a customs union, a common external tariff and free labour flows. And in 2005 the leaders of the three countries began a series of annual summits to push an ambitious “security and prosperity” agenda.

Since then the drive for integration has ground to a halt. The “three amigos”, as their leaders were once dubbed, could not find time to meet last year, and the session scheduled for February 26th has been cancelled. When Barack Obama and Stephen Harper, Canada’s prime minister, announced on February 4th that they were exploring ways to harmonise regulations and co-ordinate security—plans that had previously been discussed trilaterally—they did not mention Mexico.

A North American version of the European Union was always a long shot. Having one giant dealing with two relative dwarves is unlikely to produce a deal acceptable to all parties. Moreover, North America lacked the historical impetus of the second world war, which gave European integration a sense of purpose.

Related topicsStephen HarperTrade policyPolitical policyInternational relationsGovernment and politics
Nonetheless, even the modest goals set in the years following NAFTA’s passage have been blocked. One big reason is the September 11th attacks, which led the United States to redouble its border enforcement. Whereas in the 1990s Americans discussed eliminating border controls with Canada, earlier this month the United States Government Accountability Office reported that less than 1% of the country’s northern border had an “acceptable level of security”. To the south, Mexico’s raging drug war and stream of migrants make the prospect of relaxing controls there politically unthinkable. Mr Obama has struggled to fight off new restrictions, like Arizona’s harsh state law on immigration.

America’s lengthy recession also diminished the appeal of further trade liberalisation. NAFTA has always had its doubters in the Democratic Party, including Mr Obama when he was competing for its nomination. As a candidate, Mr Obama vowed to renegotiate the deal. Although he has not honoured that pledge—much to the relief of Mexico and Canada—the United States did cancel a programme allowing Mexican lorry drivers to work in America in 2009, in violation of its NAFTA obligations. Mexico retaliated with a series of tariffs aimed at the states of legislators who opposed the programme.

America is not the only country to blame. Because Mr Harper runs a minority government that could fall at any time, he has chiefly focused on short-term, voter-pleasing issues like cracking down on illegal immigration. Canada imposed new visa restrictions on Mexican visitors in 2009, angering the Mexican government.

And whereas Canadian companies once strongly backed regional integration, their focus has now shifted to Asia, turning their North American agenda almost entirely towards the United States. Mr Harper has followed suit: although he has talked of a hemispheric foreign policy and signed free-trade deals with Colombia, Panama and Peru, he is now working on aligning Canadian and American security measures and regulations.

Felipe Calderón, Mexico’s president, has espoused a vision of North America as a union of complementary economies—with Canada providing the natural resources and Mexico the labour—that would compete with Asia. However, his efforts to liberalise Mexico’s economy, including a plan to allow private investment in energy, have been defeated or watered down in Congress. It is hard to see how he can achieve continent-wide reforms.

The main obstacle to trilateral co-operation is that Canada and Mexico are much more interested in their relations with the United States than they are in each other. Until that changes, the next North American summit will probably prove just as difficult to schedule.

Thursday, February 24, 2011


In this recent case, a person misrepresented her status, failing to disclose that he was married in a religious ceremony in Vietnam, and that he had a child of the marriage, in order to obtain residency in Canada. He argued that the marriage was not valid because it was not registered. The court rejected the argument. This is unusual, because most persons wish to argue that a common law relationship or marriage is in fact valid, but in this case the failure to disclose a material fact proved fatal to the argument. Applicants are cautioned to consult legal counsel before making applications for residency, to ensure that no misrepresentations are made inadvertently.

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


Tan Do Mai, Applicant, and

The Minister of Public Safety and Emergency Preparedness,


[2011] F.C.J. No. 127

[2011] A.C.F. no 127

2011 FC 101
Docket IMM-2367-10
Federal Court

Montréal, Quebec
Martineau J.
Heard: December 2, 2010.

Judgment: January 28, 2011.

(32 paras.)

1 MARTINEAU J.:-- The applicant challenges the legality of a decision made by the Immigration Appeal Division, Immigration and Refugee Board (the Tribunal), to uphold the removal order issued by the Immigration Division (ID) for misrepresentation.

2 The applicant was born in Vietnam on May 3, 1982. He applied for a permanent resident visa on May 7, 2003, under the family class, as an unmarried dependent of his father who lived in Canada and acted as sponsor. He obtained his visa and arrived in Canada on March 22, 2005. However, in the interim, the applicant married his pregnant girlfriend in a Catholic ceremony on August 17, 2004. The marriage was not registered at the time with the Vietnamese Government. Their child was born on September 18, 2004. The birth was not registered at the time with the Vietnamese Government either.

3 The applicant did not report either his marriage or the birth of his child to the Immigration officials during the processing of his application, nor upon receipt of his permanent resident visa, nor upon his arrival to Canada. In fact, it is only in 2006 that the existence of the applicant's marriage and the applicant's child became known to the immigration officials. This time, the applicant had decided to sponsor his wife and child and in the application for sponsorship, he indicated that they were married August 17, 2004, and that their son was born September 18, 2004. Furthermore, the applicant's wife indicated that they had lived together from 2000 to 2004.

4 As per paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations SOR/2002-227, as amended (the Regulations), the wife and the child were found not to belong to the family class and, consequently, the sponsorship application was rejected. The applicant appealed this decision to the tribunal, on the basis that he had not declared his wife and child because he does not speak English or French. His appeal was rejected on May 27, 2008. That decision is not contested before the Court.

5 This now brings us to the subject matter of this proceeding. As per paragraph 40(1)(a) of the Immigration and Refugee Protection Act (the Act), a permanent resident or a foreign national is inadmissible for misrepresentation, "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 the Act".

6 Indeed, pursuant to subsection 16(1) of the Act, the applicant had the duty to answer truthfully all questions that were asked by the officer who examined him at the port of entry. More particularly, section 51 of the Regulations requires that the foreign national who holds a permanent residence visa report any changes with respect to his or her family situation:

• 51. A foreign national who holds a permanent resident visa and is seeking to become a permanent resident must, at the time of their examination,
• (a) inform the officer if
• (i) the foreign national has become a spouse or common-law partner or has ceased to be a spouse, common-law partner or conjugal partner after the visa was issued, or

• (ii) material facts relevant to the issuance of the visa have changed since the visa was issued or were not divulged when it was issued; and

• (b) establish that they and their family members, whether accompanying or not, meet the requirements of the Act and these Regulations.

* * *
• 51. L'étranger titulaire d'un visa de résident permanent qui cherche à devenir un résident permanent doit, lors du contrôle :
• a) le cas échéant, faire part à l'agent de ce qui suit :
• (i) il est devenu un époux ou conjoint de fait ou il a cessé d'être un époux, un conjoint de fait ou un partenaire conjugal après la délivrance du visa,

• (ii) tout fait important influant sur la délivrance du visa qui a changé depuis la délivrance ou n'a pas été révélé au moment de celle-ci;

• b) établir que lui et les membres de sa famille, qu'ils l'accompagnent ou non, satisfont aux exigences de la Loi et du présent règlement.

7 On April 21, 2008, the Minister issued a report as per section 44 of the Act according to which the applicant would be inadmissible in Canada due to "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" (paragraph 40(1)(a) of the Act). The report was submitted to the ID for investigation. One year later, the ID concluded that the applicant had made misrepresentations in the sense of paragraph 40(1)(a) of the Act. A removal order was thus issued on April 20, 2009. The applicant appealed the removal order before the Tribunal as per subsection 63(3) of the Act and asked that the humanitarian and compassionate reasons in the file be taken into account, as per paragraph 67(1)(c) of the Act.

8 On March 31, 2010, the Tribunal rejected his appeal, finding that the removal order was justified and that the humanitarian reasons claimed by the applicant were insufficient to justify granting the special relief outlined in paragraph 67(1)(c) of the Act. It is the decision to uphold the removal order that is the subject of the application for judicial review today. The Tribunal's rejection of the humanitarian reasons claimed by the applicant is not contested before this Court.

9 At issue are two misrepresentations: one regarding the applicant's "marriage" in 2004 and one regarding the birth of his child in 2004. The applicant does not dispute the misrepresentations themselves. However, he does dispute that his intention was to mislead the immigration officials. Moreover, he submits that the misrepresentations were not material, as they would not have changed the outcome of the applicant's permanent residence application.

10 Both before the Tribunal and this Court, the applicant has argued that as his marriage was not legal in the eyes of the Vietnamese Government because it had not been yet registered at the time of his application and entry in Canada. It follows that he was under no obligation to report it (Definition of "marriage", section 2, Regulations). He thus made no misrepresentation of a material fact relating to a relevant matter, as per paragraph 40(1)(a) of the Act.

11 Second, as for the misrepresentation regarding his child, the applicant argues that as the child was not registered with the Vietnamese Government, he also had no obligation to report the child. In any case, the applicant's having a child does not disqualify him from obtaining permanent residence as a dependent on his father, so it is not a misrepresentation in the sense of paragraph 40(1)(a) of the Act.

12 Thirdly, the applicant submits that he had no intention to mislead the immigration authorities and that the Tribunal's failure to give sufficient weight to the absence of such an intention renders the impugned decision unreasonable.

13 All these grounds of attack are challenged by the defendant who relies on the findings of fact made by the Tribunal and on the applicable provisions of the Act and Regulations. Indeed, the impugned decision is reasonable and accords with the principles derived from the relevant case law. See Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299 (Mohammed); Azizi v. Canada (Minister of Citizenship and Immigration), 2005 CAF 406; Baro v. Canada (Minister of Citizenship and Immigration), 2007 FC 1299 (Baro); Bodine v. Canada (Minister of Citizenship and Immigration), 2008 FC 848; Ekici v. Canada (Minister of Citizenship and Immigration), 2009 FC 1133.

14 The Court finds that the appropriate standard of review in this case is reasonableness. The decision made by the Tribunal relies on the application of paragraph 40(1)(a) of the Act to the facts in evidence. It is therefore a question of mixed fact and law and the Court will only intervene if the decision of the Tribunal does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 47; Ali v. Canada (Minister of Citizenship and Immigration), 2008 FC 1354, at paragraph 20).

15 For the reasons that follow, while sympathizing with the applicant and his family, the Court finds the Tribunal's decision reasonable in light of the facts and the applicable law.

16 There is nothing inherently unreasonable about the general conclusion reached by the Tribunal. Material facts are not restricted to facts directly leading to inadmissible grounds, but are broader. When relevant information affects the process undertaken or the final decision, it becomes material (Koo v. Canada (Minister of Citizenship and Immigration), 2008 FC 931, at paragraph 19). The applicant's failure to mention his wife and child prevented immigration officials from investigating them and their relationship to the applicant. The misrepresentation thus affected the process undertaken.

17 The Tribunal has found that whether the marriage was technically legal or not in Vietnam, it was still a material fact. This finding is reasonable in the circumstances. The definition of "dependent child" in the Regulations includes a category of a married child who remains financially dependent on the parent, and marital status of the applicant is clearly relevant to the applicant's belonging to that category. In not declaring his marriage in Vietnam, he prevented the immigration agent from undertaking an investigation to ensure that he was admissible under the category of family reunification.

18 As for the applicant's child, the Tribunal reasoned that this also prevented the immigration agent from investigating the child. This would prevent the applicant from sponsoring his wife and child in the future under the category of family reunification. It must be remembered that paragraph 40(1)(a) of the Act refers notably to the "withholding [of] material facts relating to a relevant matter that induces or could induce an error in the administration of [the] Act" (my underlining). Therefore, it was not necessary for the Tribunal to make a finding of an actual error caused by the misrepresentation.

19 Furthermore, the Tribunal's decision fits quite well with the examples of what generally constitutes misrepresentation as per paragraph 40(1)(a) of the Act, listed in section 9.10 of the ENF2: Evaluating Inadmissibility guidelines, published by the Ministry of Citizenship and Immigration. Two specific examples relevant to the present case are "An applicant for a visa fails to disclose the existence of family members, even if the family members could satisfy the requirements of the Act [R117(9)(d)]" and "Failure to disclose changes in marital status or changes in material facts since visa issuance abroad".

20 The guidelines are of course not binding on the Tribunal or any other body involved in the process, but they are a good indication in a judicial review proceeding of what an immigration official might reasonably find to constitute misrepresentation of a material fact related to a relevant issue is. Besides the reference above to the ENF2: Evaluating Inadmissibility guidelines, see also, paragraphs 5.10, 5.11 and 10.5 of OP 2 - Processing Members of the Family Class.

21 The applicant also argues that he honestly believed that his religious marriage was not required to be reported, and as such, he should not be punished by making an inadvertent error. The applicant cites Baro, above, at paragraph 15, in support of the claim that if the misrepresentation was truly innocent and inadvertent, then an exception can be made and paragraph 40(1)(a) of the Act need not be applied (Medel v. Canada (Ministre de l'emploi et de l'immigration), [1990] 2 C.F. 345, [1990] A.C.F. No. 318 (C.A.F) (QL) (Medel).

22 This issue was canvassed by my colleague Justice MacKay in Mohammed, above, under a similar provision found in the old Immigration Act (i.e. paragraph 27(1)(e)). With respect to the comments made by Justice MacGuigan of the Federal Court of Appeal in Medel, above, Justice MacKay writes at paragraph 40:

• In my opinion, the principle which arises from the above comments of MacGuigan J.A. in Medel is that the duty of candour owed by the applicant depends on the materiality of the information withheld. A change in marital status has repeatedly been held to constitute a "material fact" for the purposes of paragraph 27(1)(e) of the Act, in so far as the failure to disclose it, as stated in Brooks, supra, [at page 873] may reasonably have "the effect of foreclosing or averting further inquiries".10 In the present case, the information failed to be disclosed by the applicant, his change in marital status, was clearly "material" information in that it potentially would have had a direct or inducing influence on whether or not he was granted landing in Canada.

23 For the purposes of the Act, "family member" includes, as the case may be, the spouse or "common-law partner", that is defined in the latter case as "an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year" (paragraphs 1(1) and (3) of the Regulations).

24 In the case at bar, the facts do not allow the conclusion that the applicant was completely unaware that common law or conjugal history was relevant. When one examines the application for permanent residence form that the applicant completed, one sees that the applicant was expressly asked whether he was in a common-law relationship. He responded that he was not, which could very well have been true in 2003, although even that possibility is in doubt, given the applicant's wife's application made in 2006 that they had lived together from 2000 to 2004. The truthfulness of that statement is ultimately immaterial, however, given that the same application form required an undertaking that the applicant would inform the immigration authorities should any information therein changed. The applicant thus had the obligation to report any change in his common law relationship status.

25 While the general argument could be made that common law marriages can often be difficult to define or prove, this is patently not the case. Even if the applicant believed that his religious marriage was not a real marriage in the eyes of the Vietnamese and Canadian governments, he repeatedly stated that he viewed the marriage as valid, as per his Catholic faith. Indeed, the applicant and his wife supposedly underwent the religious ceremony in 2004 in order to save their families from the shame of an illegitimate child. Furthermore, when the applicant's wife applied for permanent residence in 2006, she indicated that she and the applicant had married in 2004, and had been living together since 2000. Given the facts in evidence, the applicant's relationship with his wife clearly qualifies as, at the very least, a common-law marriage. The applicant was thus obligated to report that his spousal or conjugal status had changed, which he did not do.

26 For these reasons, the Tribunal's decision is thus reasonable and the Court has no grounds to interfere.

27 The applicant has proposed the following question for certification:

• Does a marriage that does not satisfy the definition of marriage according to the IRPA constitute a material fact and a fact relating to a relevant matter, in the sense of inducing a misrepresentation?

28 The test for certification is set out at paragraph 74(d) of the Act and section 18(1) of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22. The test states that a question may only be certified if it is a serious question of general importance which would be dispositive of an appeal (Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 318 N.R. 365 at paragraph 11).

29 This standard is not met in the present case.

30 The first criterion is that the question transcends the particular fact context in which it has arisen. The question must lend itself to a generic approach leading to an answer of general application (Boni v. Canada (Minister of Citizenship and Immigration), 2006 FCA 68, 357 N.R. 326 at paragraph 6). While the issue is one of significance, the obligation to disclose a marriage that does not satisfy the definition of marriage according to the Act is fact-specific.

31 In view thereof, it is not necessary to decide whether the proposed question for certification satisfies the second criterion, which is that the question must be dispositive of an appeal. Moreover, even if it were necessary, the question as phrased is not consistent with the obligation to disclose all material facts relating to a relevant matter that induces or could induce an error in the administration of the Act, as per paragraph 40(1)(a) of the Act. The question as phrased is thus not dispositive of an appeal.

32 For these reasons, the Court declines to certify the proposed question.


THIS COURT ORDERS AND ADJUDGES that the application for judicial review be dismissed and no question is certified.



This is good news. Hopefully there will be a strong immigration component as we already have in other free trade agreements.

Canada to engage in free-trade talks with Japan

Canada to engage in free-trade talks with Japan

By Darah Hansen, Vancouver Sun
February 23, 2011

VANCOUVER — Japan and Canada have agreed to jointly study the potential benefits of negotiating a “broad and ambitious” free-trade agreement, federal Trade Minister Peter Van Loan announced today.

“We’ve always thought that Canada should be at the top of a Japanese free-trade agenda,” Van Loan told reporters gathered at the Vancouver Convention Centre.

Japan is the world’s third-largest economy behind the United States and China when measured by Gross Domestic Product. It’s also Canada’s largest source of job-creating investment from Asia as well as our fourth-largest merchandise export market, with exports totalling an estimated $9.2 billion in 2010.

Van Loan also noted the strong “people-to-people” ties between countries as a result of more than a century of Japanese immigration to Canada.

“Canada is proud of its partnership and friendship with the people and government of Japan,” he said.

Joining Van Loan for the announcement was Stockwell Day, Treasury Board president and Minister responsible for the Asia-Pacific Gateway and Corridor Initiative.

With a busy Burrard Inlet as a backdrop, Day said British Columbia’s ports, from Vancouver to Prince Rupert, represent a three-day advantage to Japan’s shipping companies over ports in California — a critical trade factor he hopes Japan will keep in mind.

“When those containers arrive here ... the dwell time is less than 24 hours because of the efficiency of the ports,” he said.

Existing road and rail infrastructure then allow products to move quickly across North America, reaching centres such as Chicago or Omaha in about 100 hours.

“These are huge and significant advantages that we offer through the Asia-Pacific gateway,” he said.

Day said B.C.’s forestry, manufacturing and agricultural industries also stand to gain from a trade deal with Japan.

“What it means at the end of the day, bottom line, is more jobs, more economic prosperity for Canada if we succeed,” said Van Loan.

Today’s announcement marks the first step in what could be a lengthy negotiation process with Japan, traditionally one of the more isolationist economies.

“These things don’t happen overnight,” Van Loan said.

But Yuen Pau Woo, head of the Asia Pacific Foundation of Canada, said the significance of Japan’s willingness to talk shouldn’t be underestimated.

An agreement between the two countries would send a strong signal to the rest of Asia that Canada is willing to forge more deals, he said, adding, “This is the beginning of a trend for trade arrangements with Asia and a deeper commercial engagement between Canadian and Asia.”

Since 20006, the Harper government has signed free-trade deals with eight countries, including Colombia, Jordan, Panama, Peru and the European Free Trade Association states of Iceland, Liechtenstein, Norway and Switzerland.

The government is also pursuing negotiations with some 50 other countries.

Van Loan said an initial study between Canada and the European Union showed a potential $12-billion annual benefit to the Canadian economy, while a deal with India would bring in an estimated $6 to $15 billion a year.

“You’re talking very significant job benefits, very significant job growth,” he said.

Van Loan said any new trade deals are unlikely to change Canada’s relationship with the U.S., which remains our principal trading partner.

But Day said opening trade doors with other nations will give Canada an advantage should the U.S. market weaken.

“The fact that we have been able to expand opportunities into other markets gives us a greater sense of comfort and also capability,” he said.

Wednesday, February 23, 2011


Unusual case  below results in an award against a Russian immigrant who contracted the services of a  "consultant". The case raises many questions beyond the scope of the decision, such as:
1. Does the conduct of the consulting company raise a possible conflict of interest? The company represented both the immigrant and an employer. Was that disclosed to the parties? It is not clear.
2. If the "consultant" would have been regulated (as required in many provinces), would the arrangement in the contracts with the employee and the employer attract scrutiny from the ethical and conflicts point of view?
3. Was the immigrant aware of her obligations, or was she just trying not to pay fees after obtaining employment? It appears that such was the case, as she apparently obtained her Work Permit but then reneged on the obligation to pay.  It is not clear as to why she decided not renege on payment after obtaining a positive result, and where the fee appears to have been modest.

From the immigrant's point of view, she should have hired a lawyer to handle the immigration aspects of her case, separately from an employment agency, to avoid precisely the situation described in the facts of this case, and potential conflicts. Immigrants must remember that lawyers are prevented from offering employment agency services, as they are separately regulated by the provincial authorities.

ICN Consulting Inc. v. Tagirova


ICN Consulting Inc., Claimants, and

Maria Tagirova, Defendant

[2010] B.C.J. No. 2760

2010 BCPC 384
File No. 23156
Registry: Richmond
British Columbia Provincial Court

Richmond, British Columbia
T.C. Armstrong Prov. Ct. J.

Heard: September 10, 2010.

Judgment: October 19, 2010.

(32 paras.)

1 T.C. ARMSTRONG PROV. CT. J.:-- The Claimant is a company providing Immigration Consulting Services from an address in Richmond B.C. This action relates to a contract entered into by the Claimant with the Defendant in 2007 and services provided to the Defendant under the contract in 2007 and 2008.

2 In 2007 the Defendant was a resident of Russia who wanted to enter Canada as a temporary foreign worker under the Live-in Caregiver program (herein the "LCP") authorized under the Immigration and Refugee Protection Act. The Defendant's goal was to obtain employment in Canada as live in care giver and to become a citizen of Canada.

3 In October 2007 the Defendant contacted the Claimant to secure its services to assist her to achieve the goal of obtaining permission to enter and work Canada. On July 22, 2008 she was issued a work permit and a visa to travel to Canada. She arrived on August 2, 2008.


4 The Claimant and Defendant entered into an agreement dated October 16, 2007 (herein the "Contract") a translation of which set out the terms of the Claimant's engagement and the payments to be made by the Defendant. In addition the Defendant signed a promissory note dated October 16, 2007 promising to pay $1,500 on demand in accordance with the Contract.

5 The relevant clauses of the Contract include the following:
• Introductory Clause
• The Company agrees to render the Client consulting services for the purpose of obtaining a labour contract, Work Permit and coming to Canada for work under the Live-in-Caregiver Program of Canadian Government ("Program"), and the Client agrees to pay for the services rendered in the amount and on terms provided by this Contract.
• 1. The Company shall:

1.3 Prepare the set of documents of the Client for submitting to employer according to Canadian standards

1.4 Prepare the client for interview with Canadian employer
• 3. The client allows the company to use at it discretion, publish and submit to any concerned parties and organizations any information and documents received by the Company from the Client, for the purposes provided by this Contract

• 5. The Client understands and acknowledges that the Company is not liable to the Client or third parties for any damages incurred by the Client in course of performance of this Contract or in regards to establishing employment of the Client in Canada

• 9. For The services rendered by the Company the Client shall pay the Company $US 3,000 as follows:
• (ii) $500 US immediately on signing the Contract

• (iii) $1,000 US immediately upon obtaining the Labour Market Opinion confirmation

• (iv) $1,500 upon arrival of the Client to Canada. The amount shall be paid in three installments of $ 500 each, on the first day of each month. All payments shall be made within four months of arrival of the Client to Canada

6 There is no dispute that the Defendant paid the first two sums equaling $1,500 and has not paid the balance.


7 By August 19, 2008, the Defendant had taken legal advice in BC on the enforceability of the Contract whereupon she filed a complaint with the British Columbia Employment Standards Branch to recover the fees she had paid to the Claimant

8 The Defendant complained to the Director of Employment Standards (herein the "Director") alleging that the Claimant was in breach of Section 74 of the Employment Standards Act (herein the "Act") by charging a fee for providing information about employment. After an investigation of that complaint, the Director's delegate concluded that the fee charged to the Defendant was in contravention of Section 10 of the Act and that the Claimant was operating as an employment agency without a valid employment agency licence thereby contravening section 12 of the Act.

9 The Claimant successfully appealed the delegates decision and the Director's determination was cancelled and the Defendant's complaints were referred back to the Director of Employment Standards for a hearing or new investigation by a different delegate.

10 The Claimant then commenced this proceeding on June 21, 2010. The investigation by a new delegate of the Director has not proceeded.

11 In this action the Defendant admitted to non-payment of the balance outstanding to the Claimant but asserts that the Contract for services breached section 10 of the Act rendering the Contract void ab inito. She claims entitlement to the return of the fess already paid to the Claimant in addition to a dismissal of the Claim for the unpaid fees.

12 Section 10 of the Act provides:
• 10(1) A person must not request, charge or receive, directly or indirectly, from a person seeking employment a payment for:
• (a) employing or obtaining employment for the person seeking employment, or

• (b) providing information about employers seeking employees.

• (2) A person does not contravene this section by requesting, charging or receiving payment for any form of advertisement from the person who placed the advertisement.

• (3) A payment received by a person in contravention of this section is deemed to be wages owing and this Act applies to recovery of the payment,

13 The Defendant acknowledged that prior to contacting the Claimant, she had unsuccessfully attempted to find employment in Canada to satisfy the requirement under the Immigration and Refugee Protection Regulations (herein the "IRPR"). The Defendant was living in Russia at the time of signing the Contract.

14 No argument was advanced at the hearing as the application of the Act to the Contract signed by the Defendant in Russia and I have not dealt with that issue.

15 The Defendant now asserts that part of the Contract including the fees payable to the Claimant were for purposes prohibited by Section 10 of the Act and the Contract was illegal. She submits this illegality bars the Claimant's right to recover the balance of fees owed and entitles the Claimant to the return of fees already paid.

16 The Claimant had also advanced an argument that the Claimant's contract with the Defendant offended sections 2 and 13 of the IRPR and was therefore void. Before the conclusion of this Simplified Trial the Defendant abandoned the Defence and Counter Claim based on the breach of those sections of the IRPR.


17 The Defendant's objection to the claim is that the "Contract was not solely for "immigration consulting services" but for "employment recruitment services and immigration services bundled together for a fee".

18 The Defendant relies on the Introductory clause of the Contract referring to "consulting services for the purpose of obtaining a labour contract" as indicating that the Claimant's charges were, in the words of the Act "a payment for obtaining employment for the person seeking employment".

19 In the absence of any ambiguity in the words of an agreement, the intention of the parties is to be determined objectively by attributing a meaning to the words that would be conveyed to "a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. Perrin v. Shortreed Joint Venture Ltd. [2009] B.C.J. No. 2154 (CA).

20 The evidence disclosed that the Claimant made efforts to connect the Defendant with prospective employers in Canada. On January 21, 2008 the Claimant entered into a separate agreement (herein the Service Agreement) with Oxana Smith of White Rock, B.C to provide services to facilitate a connection between Ms. Smith and a potential care-giver from Europe. Ms. Smith eventually offered a contract of employment to the Defendant which in turn satisfied the immigration requirements necessary for the Defendant to obtain entry into Canada.

21 This Service Agreement included the following Preamble:

"The Client wishes to hire a worker who will provide

care-giving services in the Clients home (Caregiver)

• The Service Provider carries on business primarily consisting of maintaining a database of skilled professionals from Europe who wish to come to work in Canada as live-in Caregivers under the Government of Canada's Live-In Caregiver Program."

22 The Service Agreement required the Claimant to provide Ms. Smith with the following services:

• a) Sourcing and short-listing of professional Caregivers for the Client's consideration;

• b) Presenting to the Client a variety of caregiver options and informing the Client about pertinent information that the Service Provider might have with regard to each applicant Caregiver;

• c) Arranging for the selected applicant Caregiver to be interviewed by the Client.

23 Ms. Smith was also required to pay a $750 non refundable fee on signing the Service Agreement.

24 It is clear that the words in the Contract, in light of the process wherein the Immigration authorities required a Labour Market Opinion (arranged by the Claimant) and an offer of employment from a Canadian employer as prerequisites to obtaining a visa for the Defendant, were not intended to mean that the Claimant was charging a fee to obtain employment for the Defendant. The relevant words of the Contract "for the purpose of obtaining a labour contract," do not imply that the Claimant's charges were "for obtaining employment for the person seeking employment".

25 In the context of this rather complicated procedure for obtaining a visa for the Defendant, I conclude that the charges for services referred to the Defendant under the Contract were not charges that contravened Section 10 of the Act but were truly charges for consulting services ancillary to the object of obtaining a visa for the Defendant under the Live-in-Caregiver Program. Obtaining a labour contract was a necessary step in the immigration process and, in the circumstances, was not synonymous with obtaining employment.

26 This conclusion is supported by the fact that the Claimant entered into the Service Agreement in exchange for a fee paid by Ms. Smith. The fee for obtaining the employment agreement between the Claimant and the Defendant was paid by Ms. Smith under the Service Agreement and not by the Defendant under the Contract.

27 The Defendant argued that the decision in Prince George Nannies & Caregivers Ltd. v. British Columbia (Employment Standards Tribunal) 2010 BCSC 883 was analogous to this claim. I disagree. Sewell J. outlined the standard of review of the Tribunal's decision set out in Section 58 of the Act as permitting him to interfere only if the decision could not be reasonably supported by the record.

28 Sewell J. did not affirm the Employment Standards Tribunal finding; rather he accepted the admission of the PG Nannies that it had an obligation under its contract to use its best efforts to find employment for the Caregiver Clients. He concluded that the Tribunals determination was within the range of reasonable outcomes and therefore he did not have the authority to substitute his view for that of the Tribunal and he was not prepared to interfere with that decision.

29 In this case, the Claimant made no admission it had an obligation to make any effort to find employment for the Defendant. Further, I have concluded that the Contract did not include any such obligation and that the charges under the Contract were not directly or indirectly rendered for the purpose of obtaining employment for the Defendant.


30 Accordingly I conclude the Claimant did not breach Section 10 of the Act and the Contract is enforceable against the Defendant.

31 The Claimant will have judgment against the Defendant for Can $1,524.30 together with Court Order interest from November 2008 and costs of $176.

32 The total amount of this judgment shall be paid on or before December 31, 2010.


Monday, February 21, 2011


This is a very thorough and exhaustive decision on the inconsistency of the two tests that can be applied by Citizenship judges. Applicants should consult legal counsel before filing citizenship applications.

Tingmei Hao, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2011] F.C.J. No. 143

2011 FC 46
Docket T-1073-10
Federal Court

Vancouver, British Columbia
Mosley J.
Heard: November 9, 2010.

Judgment: January 28, 2011.

(51 paras.)

1 MOSLEY J.:-- The issue in this case is whether, in considering an application for Canadian citizenship, the Citizenship Judge erred in applying one of several tests for determining the residency requirements that have been previously approved by this Court. Recently, some judges of this Court have adopted the view that just one of these tests should prevail. This would, undoubtedly, avoid inconsistency in the administration of the statute. Should an appeal from the Citizenship Judge's decision be granted when the judge chose to apply one test over another and the decision is not otherwise unreasonable?


2 This is an appeal pursuant to section 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 of the decision made on May 18, 2010 by Citizenship Judge, Robert D. Watt, refusing the applicant's application for citizenship. Such appeals proceed by way of application based on the record before the citizenship judge and are governed by the Federal Courts Rules pertaining to applications: Rule 300 (c); Canada (Minister of Citizenship and Immigration) v. Wang, 2009 FC 1290, Imm. L.R. (3d) 184. There are no further appeals from decisions of this Court. If the matter is not sent back for redetermination, an unsuccessful applicant who meets the statutory criteria may reapply.

3 The applicant, a citizen of China, arrived in Canada with her parents as a permanent resident on February 3, 2003 when she was 13 years of age. In the subsequent six years, she was repeatedly absent from Canada for prolonged periods of time, the first beginning just 17 days after her arrival. During her absences, the applicant visited relatives and attended high school in China. She attended a secondary school in Vancouver, BC from September 2004 through October 2006 and completed grades 10 and 11 there. For much of 2007, the applicant was in China. During that time she finished high school in her hometown of Tianjin. Returning to Canada, she pursued post-secondary education and applied for citizenship on January 3, 2009. A hearing was conducted before the Citizenship Judge on March 31, 2010. The applicant was informed of the judge's decision and reasons in a letter dated May 18, 2010.


4 The Citizenship Judge used the period between January 3, 2005 and January 3, 2009 to calculate the applicant's residency in Canada.

5 The Citizenship Judge noted that he relied on the analytical approach of Justice Francis Muldoon in Re Pourghasemi (1993), 62 F.T.R. 122, 19 Imm. L.R. (2d) 259, in which it was deemed necessary for a potential citizen to establish that he or she has been physically present in the country for a total of 1095 days during the four years preceding the application for citizenship.

6 The Citizenship Judge calculated that the application showed a presence in Canada of 972 days with a shortfall of 123 days from the 1095 that would amount to three of the preceding four years. He concluded that the applicant's frequent travel to China to visit family, including a terminally ill grandfather, or to undertake and complete high school studies, prevented the applicant from meeting the minimum requirement for physical presence in Canada. He therefore concluded that Ms. Hao did not meet the requirements for citizenship as stipulated in paragraph 5(1)(c) of the Citizenship Act.

7 Citizenship Judge Watt considered that the object and purpose of paragraph 5(1)(c), as discussed in Pourghasemi, is to ensure that individuals seeking citizenship become "Canadianized" by "rubbing elbows" with Canadians in the normal routine of everyday living. Being present in the country for this period of time would allow the applicant to observe and grow accustomed to Canadian society and to its values. Not to have such experiences would effectively allow a person "who is still a foreigner in experience, social adaptation, and often in thought and outlook" to be granted citizenship.

8 On the information available to him, the Citizenship Judge also determined that this was not a case to make a favourable recommendation for a discretionary grant of citizenship under subsections 5(4) and 15(1) of the Act. In his view, there were "inadequate circumstances of special and unusual hardship or services of an exceptional value to Canada" to warrant such a recommendation. This discretionary determination was not challenged on this application.


9 As noted above, the sole issue on this application, apart from the question of costs, is as follows:

• Is there one correct test to be used by a citizenship judge in determining whether the applicant met the residence requirement under subsection 5(1)(c) of the Citizenship Act?


10 Section 5(1)(c) sets out the method of calculating the length of residence, for permanent residents seeking citizenship, but does not define the term:

• Grant of citizenship Attribution de la citoyenneté 5. (1) The Minister shall grant citizenship to any person who

• [...]

• (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:

• (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and

• (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence

* * *

• 5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :

• [...]

• c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante :

• (i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,

• (ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent


11 The parties agree that the overall standard of review to be applied in an appeal from a citizenship decision is reasonableness. The weight of Federal Court jurisprudence, both prior to and subsequent to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, supports that conclusion. See for example: Chen v. Canada (Minister of Citizenship and Immigration), 2006 FC 85 at para. 6; Canada (Minister of Citizenship & Immigration) v. Ryan, 2009 FC 1159 at paras. 13-16.

12 Justice James Russell described the consensus in Pourzand v. Canada (Minister of Citizenship and Immigration), 2008 FC 395, 71 Imm. L.R. (3d) 289 at paras. 19-20:

• [19] There has been general consensus in the jurisprudence of this Court that the applicable standard of review for a citizenship judge's determination of whether an applicant meets the residency requirement, which is a question of mixed fact and law, is reasonableness simpliciter (Canada (Minister of Citizenship and Immigration) v. Chang, 2003 FC 1472; Rizvi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1641; Chen v. Canada (Minister of Citizenship and Immigration), 2006 FC 85; Zhao v. Canada (Minister of Citizenship and Immigration), 2006 FC 1536). In light of the Supreme Court of Canada's recent decision in Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir], wherein the Court collapsed this standard and the patent unreasonableness standards into one standard of reasonableness, I find that the applicable standard of review as regards the Citizenship Judge's determination of whether the Applicant met the residency requirement is reasonableness.

• [20] With respect to the alleged factual errors, a number of pre-Dunsmuir authorities from this Court held that the patent unreasonableness standard was to be applied to a citizenship judge's findings of fact. Considerable deference is owed to citizenship judges' findings of fact, as they have access to the original documents and an opportunity to discuss the relevant facts with the applicant. Thus, applying Dunsmuir, these findings are also reviewable on a reasonableness standard. I note, however, that even if the patent unreasonableness standard had been applied when reviewing the Citizenship Judge's findings of fact in the present case, my findings would have been the same.

13 While there has been and continues to be general agreement that the standard of review of a citizenship decision is reasonableness, judges of this Court have disagreed as to how the residency requirement was to be interpreted. This stems in part from the fact that the Federal Courts Rules formerly required that these appeals be heard de novo rather than by application. Thus, it was necessary, prior to changes in the Rules, for a judge of this Court hearing an appeal from a citizenship judge's decision to make a fresh determination as to whether the statutory requirements had been met by the claimant. In so doing, the Court had to determine what was meant by "resident" ("résidence") in paragraph 5(1)(c) of the Act. With the change in the Rules to treat these appeals as applications, to set aside a decision of a citizenship judge requires a finding of reviewable error: Canada (Ministre de la Citoyenneté et de l'immigration) v. Tovbin (2000) 10 Imm. L.R. (3d) 306, 190 F.T.R. 102.

14 The interpretation of the residency requirement which may be described as the most generous to an applicant who has not been physically present in Canada for three of the preceding four years is that exemplified by Associate Chief Justice Arthur Thurlow's decision in Papadogiorgakis (Re), [1978] 2 F.C. 208. There it was held that a person with an established home in Canada can leave for extended periods and still be regarded as a resident of Canada. In Associate Chief Justice Thurlow's opinion, the question to be determined is whether the person has centralized his or her mode of living in Canada through social relations and other interests. It is the quality of the attachment to Canada, rather than the number of days actually spent here, that is important to those who subscribe to this view.

15 A narrower interpretation of the legislation is reflected in Justice Muldoon's decisions in Pourghasemi (Re), above, and Harry (Re) (1998), 144 F.T.R. 141, 77 A.C.W.S. (3d) 933. Justice Muldoon held that the wording of the Act is clear. It requires a physical presence in Canada for three years in the four years prior to the application. Justice Muldoon felt strongly that the Court should not adopt an interpretation inconsistent with the plain language of the statute to accommodate applicants who were not prepared to spend three out of four years in the country prior to claiming citizenship.

16 Occupying what may be characterized as the middle ground is Justice Barbara Reed's analysis in Koo (Re) (1992), 59 F.T.R. 27, 19 Imm. L.R. (2d) 1. Justice Reed accepted Associate Chief Justice Thurlow's view in Papadogiorgakis that persons may have centralized their existence in Canada without being physically present for three out of the four years. Justice Reed set out six, non-exhaustive questions to determine whether the person regularly, normally or customarily lived in Canada during the preceding four years.

17 The "centralized existence test" assessed by Justice Reed's six questions has come to be the preferred standard used by citizenship judges to determine whether an applicant has satisfied the residence requirement. Justice James O'Reilly described the test in Canada (Minister of Citizenship and Immigration) v. Nandre, 2003 FCT 650, 234 F.T.R. 245, at paragraph 21 as a qualitative standard to be applied when a person has not met the physical test. In his view, the connection to Canada would have to be quite strong for absences to be considered periods of continued residency.

18 This qualitative assessment appears to have been encouraged by the Minister by, among other things, providing standardized forms for the citizenship judges which set out the six Koo questions as factors to be considered in making the residency determination.

19 While it is sometimes said that there are three tests of residence, there are effectively only two: strict physical presence or residency as determined by the Koo qualitative factors.

20 Notwithstanding the dominance of the Koo test and the change in the manner in which these appeals are heard, the use of the physical presence standard to determine residence has continued to be accepted by this Court. Justice Allan Lutfy (now Chief Justice), considered the matter after a change in the Court's Rules to treat these appeals as an application rather than a de novo hearing. In Lam v. Canada (Minister of Citizenship & Immigration) (1999), 164 F.T.R. 177, 87 A.C.W.S. (3d) 432, Justice Lutfy held that it was open to the citizenship judge to adopt either of the conflicting interpretations represented by the Koo test or by Pourghasemi, so long as the judge properly applied the principles of the chosen approach to the facts of the case.

21 When Lam was decided, legislative proposals to amend the Citizenship Act were before Parliament in Bill C-63. If adopted in the form tabled, Bill C-63 would have expressly required that physical presence serve as the test of residence. Justice Lutfy considered that the conflict in the jurisprudence would presumably be resolved when Bill C-63 was enacted. In the interim, he reasoned, it was not appropriate for judges on appeal to substitute their different opinions of the residency requirement for those of the citizenship judges. He considered that deference was owed to the special knowledge and experience of the citizenship judge, particularly "during this period of transition". That is, until the proposed amendments were adopted by Parliament.

22 As it turned out, Bill C-63 was not enacted. However, similar proposals are once again before Parliament in the form of Bill C-37, An Act to Amend the Citizenship Act (2010), introduced on June 10, 2010. Bill C-37 remains at the first reading stage as of the date of writing.

23 This Court has, until recently, consistently followed the position stated in Lam. See for example: Canada (Minister of Citizenship and Immigration) v. Wall, 2005 FC 110, 45 Imm. L.R. (3d) 32; Canada (Minister of Citizenship and Immigration) v. Zhou, 2008 FC 939; Canada (Minister of Citizenship and Immigration) v. Ntilivamunda, 2008 FC 1081; Canada (Minister of Citizenship and Immigration) v. Jeizan 2010 FC 323.

24 The determination of residency by citizenship judges has involved a two stage process. A threshold determination is made as to whether residence has been established in Canada. If it has not been established, the matter ends. If residence has been established, the second stage requires a determination as to whether the applicant's residency satisfies the statutorily prescribed number of days. It has remained open to citizenship judges to choose either of the two jurisprudential schools represented by Pourghasemi and Papadogiorgakis/Koo in making that determination so long as they reasonably applied their preferred interpretation of the statute to the facts of the application before them.

25 I note that this situation attracted expressions of concern from the Court. Indeed, Justice Muldoon recognized that the conflicting interpretations of the residency requirement created what he described at paragraph 22 of Harry, as a "scandalous incertitude in the law". In Lin v. Canada (Minister of Citizenship and Immigration), 2002 FCT 346, 21 Imm. L.R. (3d) 104 at paragraph 19, Justice Eleanor Dawson (now of the Federal Court of Appeal) was moved to comment that "[t]here can be no more than one correct interpretation of paragraph 5 (1) (c)". She echoed the comments of Justice Marc Nadon, as he then was, in Chen v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1229, 17 Imm. L.R. (3d) 222, "that justice and fairness will no longer be achieved by the approach suggested in Lam, supra". The situation, Justice Dawson stated at paragraph 21, "can only be remedied by Parliament clearly expressing its will with respect to the residence requirement".

26 Absent Parliamentary action in the interim, the status quo in this regard has recently been called into question.

27 In Canada (Minister of Citizenship & Immigration) v. Takla, 2009 FC 1120, 359 F.T.R. 248, Justice Robert Mainville (now of the Federal Court of Appeal) conducted a thorough analysis of the jurisprudence relating to the standard to be applied in an appeal from a citizenship judge's decision. He concluded, at paragraphs 38 and 39 of his reasons, that the characteristics of the reasonableness standard were particularly applicable in this context but that the Court owed only a qualified deference to a citizenship judge's determination of compliance with the residence requirement. Justice Mainville considered that it was now appropriate to settle on one interpretation of paragraph 5(1)(c): that the centralized mode of living in Canada test established in Koo, above, and the six questions set out therein for analytical purposes, should become the only test of residency.

28 In comments at paragraphs 41 and 47 of his reasons in Takla, Justice Mainville indicates that on a plain reading of the legislation he would have preferred the physical presence test required by the Pourghasemi interpretation. I agree with Justice Mainville that this interpretation appears to be what Parliament intended when it enacted paragraph 5(1)(c) and provided that a person need not be actually resident in Canada for one of the four years prior to the application. A reasonable inference from a reading of the Act as a whole is that Parliament intended a one year period to be sufficient to accommodate an applicant's necessary absences while he or she was establishing residency in this country.

29 Notwithstanding his reading of the legislation, Justice Mainville thought it necessary to resolve the continuing divergence of views as to the correct interpretation of the statute in favour of the Koo test. He did so, Justice Mainville explained, because Koo had become the preferred standard and because it was preferable to promote a uniform approach to the interpretation and application of statutory language. In support of the latter conclusion, Justice Mainville cited Attorney General of Canada v. Mowat, 2009 FCA 309, 312 D.L.R. (4th) 294, appeal to the Supreme Court of Canada reserved (December 13, 2010) [2009] S.C.C.A. No. 545 (QL).

30 Mowat is one of several cases that have addressed the issue of consistency in administrative decision making following the decision of the Supreme Court of Canada in Dunsmuir, above.

31 Prior to Dunsmuir, the prevailing view in the jurisprudence appeared to be that where the standard of review was not correctness, the Courts should not intervene to resolve inconsistencies in a tribunal's interpretation of its enabling statute. A lack of unanimity was considered to be the price to pay for the decision-making freedom and independence given to tribunal members: Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756 at para. 94; Essex County Roman Catholic Board v. Ontario English Catholic Teachers' Association (2001), 56 O.R. (3d) 85 at paras. 29 and 30 (C.A.); National Steel Car Ltd. v. United Steelworkers of America, Local 7135 (2006), 278 D.L.R. (4th) 345, 218 O.A.C. 207 at para. 31 (C.A.); Hydro Ottawa Ltd. v. I.B.E.W., Local 636 (2007), 85 O.R. (3d) 727 at para. 59 (C.A.); Ottawa Police Assn. v. Ottawa Police Services Board (2008), 233 O.A.C. 51 at para. 30.

32 A refinement of this approach in the cases was that judicial interference was warranted where operational conflicts made it impossible to follow inconsistent decisions: British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739 at para 53; Chapman v. Canada (Minister of National Revenue M.N.R.), 2002 FCT 655, 221 F.T.R. 126.

33 Following Dunsmuir, several courts have suggested that in applying the reasonableness standard, there should be a different approach to the determination of whether deference is owed to administrative decision makers who differ in their interpretations of the applicable legal principles. In Abdoulrab v. Ontario (Labour Relations Board), 2009 ONCA 491, 95 Admin. L.R. (4th) 121 at paragraph 48, while the decision did not turn on the question, Justice Russell Juriansz of the Ontario Court of Appeal offered the following observations:

• From a common sense perspective, it is difficult to accept that two truly contradictory interpretations of the same statutory provision can both be upheld as reasonable. If two interpretations of the same statutory provision are truly contradictory, it is difficult to envisage that they both would fall within the range of acceptable outcomes. More importantly, it seems incompatible with the rule of law that two contradictory interpretations of the same provision of a public statute, by which citizens order their lives, could both be accepted as reasonable.

34 Justice Kathryn Feldman of the same Court expressed similar views in Taub v. Investment Dealers Association of Canada, 2009 ONCA 628, 311 D.L.R. (4th) 389. She stated, at paragraph 67: I agree with Juriansz J.A. that it accords with the rule of law that a public statute that applies equally to all affected citizens should have a universally accepted interpretation. It follows that where a statutory tribunal has interpreted its home statute as a matter of law, the fact that on appeal or judicial review the standard of review is reasonableness does not change the precedential effect of the decision for the tribunal. Whether a court has had the opportunity to declare the decision to be correct according to judicially applicable principles should not affect its precedential status. As in Abdoulrab, it is not necessary to decide the issue in this case.

35 Justice Feldman characterized the changing view of the concept of deference in the following terms at paragraph 24 of her reasons in Taub:

• It has been said that where the standard of review is not correctness, on issues within its expertise an administrative tribunal has "the right to be wrong": e.g. Air Canada v. International Assn. of Machinists and Aerospace Workers, [1978] O.J. No. 1053 (Div. Ct.), at para. 11. In my view, Dunsmuir has made it clear that if this was ever true, it no longer is. Where there is a question that is reviewable on the reasonableness standard, a decision that is found to be unreasonable will in virtually every case for that reason be wrong. If a decision deserves deference because of the process by which it was reached and because the result is a reasonable one, then it will not be wrong. As I stated above, the administrative law concept of deference is not accorded on the basis of deference to an exercise of quasi-judicial discretion, but on the basis of respect for an experienced decision-maker with particular expertise who has engaged in a process and reached an outcome that has been demonstrated to warrant that deference.

36 These statements in Abdoulrab and Taub were cited with approval by the Federal Court of Appeal in Mowat. Mowat concerned a determination by the Canadian Human Rights Tribunal that it had the authority to award costs to a successful complainant. The question had not been answered consistently by the Tribunal and had been the subject of diverse opinions in the Federal Court. The Court of Appeal found, at paragraphs 47-51, that the application judge erred in choosing reasonableness as the standard of review. Because of the public interest mandate of the Tribunal and the public interest nature of the legislation, the issue was a general question of law of central importance to the legal system as a whole. It was also one that was outside the specialized area of the Tribunal's expertise. Thus, it called for the application of the correctness standard. Applying that standard and generally recognized principles of statutory interpretation, the Court of Appeal found that the Canadian Human Rights Act did not empower the Tribunal to award costs.

37 At paragraph 45 of Mowat, citing the comments from the Ontario Court of Appeal decisions reproduced above, Justice Carolyn Layden-Stevenson, for the Court, noted that:

• There is much to be said for the argument that where there are two conflicting lines of authority interpreting the same statutory provision, even if each on its own could be found to be reasonable, it would not be reasonable for a court to uphold both.

But Mowat was not decided on this basis. The Court of Appeal, applying the correctness standard, found that the tribunal had erred in its interpretation of the governing statute. As Justice Layden-Stevenson noted at paragraph 97, quoting from ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), [2006] 1 S.C.R. 140 at para. 51, the "mandate of the court is to determine and apply the intention of Parliament without crossing the line between judicial interpretation and legislative drafting".

38 In this case, it has not been argued that the citizenship judge's interpretation of the legislation calls for the application of the correctness standard and a finding that the Citizenship Judge's interpretation was wrong in law. Indeed it would have been difficult for the applicant to assert that proposition given Justice Mainville's remarks in Takla and those of several other judges of this Court, that a plain reading of the statute supports the physical presence interpretation.

39 I would have had difficulty finding that the question at issue is one of general law that is of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise: Dunsmuir, above, at para. 60. In my view, the combination of an expert tribunal and a question of law within that tribunal's expected range of expertise should result in deference, even in the face of a statutory right of appeal.

40 It was argued in this case that there are several considerations which favour a finding that the decision was unreasonable. These include the fact that the transition referred to in Lam, above, has not come to pass as Parliament has failed to deal with the issue and it is no longer reasonable to adhere to the strict interpretation. Moreover, the inconsistent interpretations of the residency requirement used by citizenship judges result in uncertainty in the application of the law to individual claimants.

41 I agree that these are important considerations and that the reasoning in the obiter comments in Abdoulrab, Taub and Mowat cited above is compelling. It is preferable from an administrative law perspective that the interpretation of provisions in a statute governing the interests of individuals be consistent. However, is that a question for the Court or for Parliament to resolve?

42 The reasoning in Takla that the Koo test should be the sole standard has been endorsed in several subsequent decisions of this Court: Canada (Minister of Citizenship and Immigration) v. Elzubair, 2010 FC 298; Canada (Minister of Citizenship and Immigration) v. Cobos, 2010 FC 903; Canada (Minister of Citizenship and Immigration) v. Salim, 2010 FC 975; Canada (The Minister of Citizenship and Immigration) v. Emmanuel Manas, 2010 FC 1056; Canada (Ministre de la Citoyenneté & de l'Immigration) c. Abou-Zahra, 2010 FC 1073; Dedaj v. Canada (Minister of Citizenship and Immigration), 2010 FC 777; Ghaedi v. Canada (Minister of Citizenship and Immigration) 2011 FC 85.

43 The physical presence interpretation had been applied by the citizenship judges in Manas, Dedaj and Ghaedi. In Manas and Dedaj that was found to be unreasonable. In Ghaedi, Justice Robert Barnes reviewed the decision on the correctness standard. In Cobos, as in Takla, the citizenship judge had applied the Koo framework. The determinative issue in those cases was whether the questions had been answered reasonably. In Elzubair, Salim and Abou-Zahra, it was not clear from the Citizenship Judges' reasons which test they had chosen to apply.

44 In Dachan v. Canada (Minister of Citizenship and Immigration), 2010 FC 538, Justice Luc Martineau took note of Takla and Elzubair without making a finding as to whether the Federal Court should prefer one test over another. Neither party had raised the question of whether a single consolidated and contextual approach should be adopted. The issue in Dachan was whether the factual finding that the applicant had not established her presence in Canada for a minimum of 1095 days was reasonable.

45 In Savarian v. Canada (Minister of Citizenship and Immigration), 2010 FC 1117, Justice Yvon Pinard noted the decisions that held that physical presence for the full 1095 days was not required. In his view, actual presence in Canada remains the most relevant and crucial factor to be taken into account for establishing whether or not a person was "resident" in Canada within the meaning of the provision. To allow a period of absence longer than the one year in four is contrary to the sprit of the Act, he considered. Accordingly, Justice Pinard dismissed an appeal from a citizenship judge's decision that applied the Pourghasemi interpretation.

46 In another decision, Shubeilat c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2010 CF 1260, Justice Michel Shore endorsed the position that it is up to the citizenship judge to determine the correct test to apply, including the stricter test of physical presence set out in Pourghasemi. Justice Shore upheld the reasonableness of the Citizenship Judge's finding that the applicant had not been physically present in the country for the required 1095 days.

47 Justice Anne Mactavish also upheld the discretion of a citizenship judge to apply any of the alternative tests in Cardin v. Canada (Minister of Citizenship and Immigration), 2011 FC 29 at paragraph 18. In the particular circumstances of that case, however, she found that it was unreasonable for the citizenship judge to apply the physical presence standard as the applicant had already established a deep and long-standing connection to Canada. Justice Mactavish endorsed the views expressed by Justice Dawson in Lin, above, that this was an area of the law that cries out for legislative reform.

48 I am unable to find that the underlying decision in this case was unreasonable. It is apparent from the record that the Citizenship Judge carefully considered the facts of the application. From his notes to file, it is clear that he took care in interviewing the applicant to explore her attachment to this country and her reasons for her absences during the four year period prior to the application. He wrote thorough reasons for the decision that meet the standard of sufficiency. But for the applicant's preference for an interpretation of the residency requirement that is more favourable to her personal circumstances, the merits of the decision have not been questioned. Moreover, this is not a case where I would find that residency had been established in the particular factual circumstances and the application of the physical presence test was unreasonable, as in Cardin, above.

49 In the interests of judicial comity, I have considered whether I should follow the analysis of my colleagues who favour the Koo test. The principle of judicial comity recognizes that decisions of the Court should be consistent so as to provide litigants with a certain degree of predictability: Abbott Laboratories v. Canada (Minister of Health), 2006 FC 120, reversed on appeal on other grounds: 2007 FCA 73, 361 N.R. 90. I note that Justice Barnes in Ghaedi, above, declined to apply the principle in this context, albeit in reference to the Lam line of authority.

50 I agree that it would be preferable to have consistency in the test applied to determine residency but several judges of this Court, including myself, have found that the physical presence interpretation is appropriate on a plain reading of the statute. And this Court, for over 11 years, has deferred to decisions by citizenship judges to choose that interpretation over the alternative as a reasonable exercise of their discretion. While the inconsistent application of the law is unfortunate, it can not be said that every example of that inconsistency in this context is unreasonable. If the situation is "scandalous" as Justice Muldoon suggested many years ago in Harry, it remains for Parliament to correct the problem.

51 The appeal is dismissed. In the circumstances, while costs were requested I do not consider it appropriate to award them.


IT IS THE JUDGMENT OF THIS COURT that the appeal from the decision of a Citizenship Judge denying the applicant's application for citizenship under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29, is dismissed. No costs are awarded.