The Federal Court ruled that a member of the Hell's Angels gang is inadmissible by reason of his involvement in a criminal organization. See Globe and Mail story:
Court rules Hells Angel not entitled to stay in Canada - The Globe and Mail
Wednesday, November 30, 2011
Tuesday, November 29, 2011
FRAUDSTER JAILED IN DISTURBING CASE
This case is utterly despicable. Individuals are cautioned to discuss their immigration cases and inquiries only with qualified, licensed and registered immigration lawyers in an office setting, not in casual coffee shop or lobby conversations. Beware of those who offer something that sounds too good to be true. Do not fall prey to those who tell you what you want to hear.
Judge jails woman charged with defrauding seniors, immigrants - The Globe and Mail
Judge jails woman charged with defrauding seniors, immigrants
Joshua Rapp Learn
Globe and Mail Update
Published Monday, Nov. 28, 2011 7:10PM EST
A Toronto woman who defrauded seniors, newly arrived immigrants and others of nearly $200,000 over three years was sentenced Monday in Ontario Superior Court to two years imprisonment.
Christina Tse, 38, pleaded guilty to 16 charges, including six counts of fraud over $5,000 and multiple counts of false pretences. The charges were filed between 2007 and 2010. One of her victims was a man awaiting a kidney transplant.
Prosecutor Alexandra Rourke described Ms. Tse as “a consummate and capable mastermind. Her criminal behaviour was repetitive and unrelenting.”
One of Ms. Tse’s methods was to befriend potential victims in the lobbies of different apartment complexes, according to Ms. Rourke. After gaining their trust, she would settle on one of a variety of scams.
In one ploy, she would tell victims she could get good places in Toronto housing if they paid her the first and last month’s rent, despite the fact that she didn’t work in city housing.
In another, she told victims she had inherited $12-million from her father in the Netherlands and needed to borrow money up front to process her claim.
As many of the victims were new to Canada, she also claimed she could get Canadian immigration papers quickly and even hinted about the possibility of getting them green cards for the United States.
“She preyed on particularly vulnerable people,” Justice Ian Nordheimer said before sentencing her.
Among the victims of Ms. Tse’s victims were Alexandra and Michael Barylo, both in their mid-80s. Michael was a labourer for 40 years and lost $22,600. The crimes first came to light when their daughter, Diane Foster, became suspicious after hearing details from her family.
“They didn’t believe me at first,” Ms. Foster said of her family outside the courtroom. “They thought she was a nice lady who was going to get them a job.”
Ms. Tse had claimed she was working with SickKids hospital when Ms. Foster confronted her. “I looked her in the eyes are said ‘I don’t trust you,’ ” Ms. Foster said.
Justice Nordheimer sentenced Ms. Tse to two years imprisonment after reviewing victim impact statements. She had previously served six months for an unrelated count of fraud over $5,000 in 2003.
“In Canada, it is a substantial jail term,” Ms. Rourke said, explaining it would be the same sentence if the fraud totalled millions of dollars. Co-accused Ronald Samuels, who had no previous criminal record, was sentenced to house arrest and three years of probation.
The victims were most concerned with getting back the money they lost was. Justice Nordheimer upheld 14 free-standing restitution orders totalling nearly $200,000 from Ms. Tse.
Judge jails woman charged with defrauding seniors, immigrants - The Globe and Mail
Judge jails woman charged with defrauding seniors, immigrants
Joshua Rapp Learn
Globe and Mail Update
Published Monday, Nov. 28, 2011 7:10PM EST
A Toronto woman who defrauded seniors, newly arrived immigrants and others of nearly $200,000 over three years was sentenced Monday in Ontario Superior Court to two years imprisonment.
Christina Tse, 38, pleaded guilty to 16 charges, including six counts of fraud over $5,000 and multiple counts of false pretences. The charges were filed between 2007 and 2010. One of her victims was a man awaiting a kidney transplant.
Prosecutor Alexandra Rourke described Ms. Tse as “a consummate and capable mastermind. Her criminal behaviour was repetitive and unrelenting.”
One of Ms. Tse’s methods was to befriend potential victims in the lobbies of different apartment complexes, according to Ms. Rourke. After gaining their trust, she would settle on one of a variety of scams.
In one ploy, she would tell victims she could get good places in Toronto housing if they paid her the first and last month’s rent, despite the fact that she didn’t work in city housing.
In another, she told victims she had inherited $12-million from her father in the Netherlands and needed to borrow money up front to process her claim.
As many of the victims were new to Canada, she also claimed she could get Canadian immigration papers quickly and even hinted about the possibility of getting them green cards for the United States.
“She preyed on particularly vulnerable people,” Justice Ian Nordheimer said before sentencing her.
Among the victims of Ms. Tse’s victims were Alexandra and Michael Barylo, both in their mid-80s. Michael was a labourer for 40 years and lost $22,600. The crimes first came to light when their daughter, Diane Foster, became suspicious after hearing details from her family.
“They didn’t believe me at first,” Ms. Foster said of her family outside the courtroom. “They thought she was a nice lady who was going to get them a job.”
Ms. Tse had claimed she was working with SickKids hospital when Ms. Foster confronted her. “I looked her in the eyes are said ‘I don’t trust you,’ ” Ms. Foster said.
Justice Nordheimer sentenced Ms. Tse to two years imprisonment after reviewing victim impact statements. She had previously served six months for an unrelated count of fraud over $5,000 in 2003.
“In Canada, it is a substantial jail term,” Ms. Rourke said, explaining it would be the same sentence if the fraud totalled millions of dollars. Co-accused Ronald Samuels, who had no previous criminal record, was sentenced to house arrest and three years of probation.
The victims were most concerned with getting back the money they lost was. Justice Nordheimer upheld 14 free-standing restitution orders totalling nearly $200,000 from Ms. Tse.
ACCUSED WAR CRIMINAL FROM GUATEMALA OBTAINED CANADIAN CITIZENSHIP
See story below. The better question, however, is how on earth this alleged war criminal ever obtained residency status and eventually Canadian citizenship? What kid of investigations, if any, were conducted by the Canadian authorities before granting his applications? How did the system fail? So many questions, so few answers....This case is not unique, there hundreds of alleged, and even convicted, war criminals in Canada who manage to sty under the radar for years, and even after being detected, manage to fight extradition for many more years.
Witness: Canada should prosecute man facing Guatemala war crime allegations - The Washington Post
Witness: Canada should prosecute man facing Guatemala war crime allegations
By Associated Press, Published: November 28
CALGARY, Alberta — A Guatemalan immigrant whose entire family was murdered in a notorious massacre said Monday he wants Canada to prosecute an alleged war criminal and not let the man be extradited to the U.S.
Ramiro Cristales said Monday he witnessed Guatemalan soldiers kill nearly everyone in the village of Dos Erres during the country’s bloody civil war when he was 5 years old.
Jose Sosa, 53, who holds both Canadian and Guatemalan citizenship, was arrested in January in Canada on U.S. charges of lying on his citizenship application about his ties to the Guatemalan military.
In Guatemala, Sosa was a member of a special military unit called the “kaibiles” and was the commanding officer of a unit assigned to find and arrest guerrillas who had stolen military weapons, according to U.S. court documents.
The government claims in the indictment that on Dec. 7, 1982, he and several dozen soldiers stormed the village of Dos Erres, near Las Cruces, and systematically killed the men, women and children. The unit is accused of slaughtering villagers with sledgehammers and throwing people into a well. Sosa denies the allegations.
In the United States, Sosa is only charged with immigration violations in the U.S. — not carrying out the 1982 massacre. Activists in Canada are pressing their government to try him for crimes against humanity, noting the case has languished in Guatemalan courts.
“They took my father and my older brother to the school and my mother and younger brothers to the church,” Cristales recalled Monday through tears. “They were crying. Most of the people was praying.
“The next morning they started massacring the men and young kids from the school. When they finished with the men they started with the women from the church.”
Cristales is joining Lawyers Without Borders and the Canadian Centre for International Justice in asking the Canadian government to take a stand in the case, but so far have not received a response from the federal justice minister.
“I want him to stay here and he can pay for whatever he did in Guatemala,” Cristales said.
Matt Eisenbrandt, the legal co-ordinator for the Canadian Centre for International Justice, said the Canadian government has an obligation to do something.
“There are very strong laws in Canada that allow for the prosecution of crimes against humanity and war crimes even when they’re committed overseas,” he said. “This is a case that has a very close connection to Canada. There is a Canadian citizen who is a survivor and Mr. Sosa is himself a Canadian citizen.”
A Calgary judge ruled in September that there was sufficient evidence to approve the extradition request. Federal Immigration Minister Jason Kenney has the final say on whether the extradition order goes ahead. Extradition case typically take years in Canada.
The civil war in Guatemala claimed at least 200,000 lives before it ended in 1996. The U.S.-backed army was responsible for most of the deaths, according to the findings of a truth commission set up to investigate the bloodshed.
The Guatemalan government opened an investigation into the killings in Dos Erres in 1994 and unearthed 162 skeletons. Authorities issued arrest warrants for 17 former kaibiles but for years the cases languished, prompting victims to seek justice abroad.
Witness: Canada should prosecute man facing Guatemala war crime allegations - The Washington Post
Witness: Canada should prosecute man facing Guatemala war crime allegations
By Associated Press, Published: November 28
CALGARY, Alberta — A Guatemalan immigrant whose entire family was murdered in a notorious massacre said Monday he wants Canada to prosecute an alleged war criminal and not let the man be extradited to the U.S.
Ramiro Cristales said Monday he witnessed Guatemalan soldiers kill nearly everyone in the village of Dos Erres during the country’s bloody civil war when he was 5 years old.
Jose Sosa, 53, who holds both Canadian and Guatemalan citizenship, was arrested in January in Canada on U.S. charges of lying on his citizenship application about his ties to the Guatemalan military.
In Guatemala, Sosa was a member of a special military unit called the “kaibiles” and was the commanding officer of a unit assigned to find and arrest guerrillas who had stolen military weapons, according to U.S. court documents.
The government claims in the indictment that on Dec. 7, 1982, he and several dozen soldiers stormed the village of Dos Erres, near Las Cruces, and systematically killed the men, women and children. The unit is accused of slaughtering villagers with sledgehammers and throwing people into a well. Sosa denies the allegations.
In the United States, Sosa is only charged with immigration violations in the U.S. — not carrying out the 1982 massacre. Activists in Canada are pressing their government to try him for crimes against humanity, noting the case has languished in Guatemalan courts.
“They took my father and my older brother to the school and my mother and younger brothers to the church,” Cristales recalled Monday through tears. “They were crying. Most of the people was praying.
“The next morning they started massacring the men and young kids from the school. When they finished with the men they started with the women from the church.”
Cristales is joining Lawyers Without Borders and the Canadian Centre for International Justice in asking the Canadian government to take a stand in the case, but so far have not received a response from the federal justice minister.
“I want him to stay here and he can pay for whatever he did in Guatemala,” Cristales said.
Matt Eisenbrandt, the legal co-ordinator for the Canadian Centre for International Justice, said the Canadian government has an obligation to do something.
“There are very strong laws in Canada that allow for the prosecution of crimes against humanity and war crimes even when they’re committed overseas,” he said. “This is a case that has a very close connection to Canada. There is a Canadian citizen who is a survivor and Mr. Sosa is himself a Canadian citizen.”
A Calgary judge ruled in September that there was sufficient evidence to approve the extradition request. Federal Immigration Minister Jason Kenney has the final say on whether the extradition order goes ahead. Extradition case typically take years in Canada.
The civil war in Guatemala claimed at least 200,000 lives before it ended in 1996. The U.S.-backed army was responsible for most of the deaths, according to the findings of a truth commission set up to investigate the bloodshed.
The Guatemalan government opened an investigation into the killings in Dos Erres in 1994 and unearthed 162 skeletons. Authorities issued arrest warrants for 17 former kaibiles but for years the cases languished, prompting victims to seek justice abroad.
FRAUD ALLEGATIONS IN OVER NINETY SPONSORSHIP APPLICATIONS
More allegations of fraud in immigration sponsorship applications. They are all too common but the system seems to lend itself to them, as officers do not seem to be particularly sophisticated at picking up fraud, and visa posts hardly interview applicants under the spousal category any more.
Ottawa man faces human smuggling, fraud charges
By Meghan Hurley, Postmedia NewsNovember 28, 2011
An Ottawa man who police allege posed as an immigration consultant and filed more than 90 sponsorship forms faces human smuggling, theft and fraud charges after a year-long investigation.
OTTAWA — An Ottawa man who police allege posed as an immigration consultant and filed more than 90 sponsorship forms faces human smuggling, theft and fraud charges after a year-long investigation.
Canada Border Services Agency spokesman Chris Kealey said documents used to support sponsorship forms, such as passports, identification and bank statements, may have been forged.
Kealey said the CBSA will investigate all sponsorship forms filed by the accused, Mohamed Farah Abdulle, 49. They have yet to determine whether any of the immigrants had knowledge that forged documents were used.
The investigation, involving the RCMP, Citizenship and Immigration Canada and the Ottawa police, continues and more charges could be laid.
The CBSA began the investigation, dubbed Project Vista, after they got a tip from a person whose identity was used in an immigration scheme.
The CBSA seized computers and documents after search warrants were executed at two Ottawa homes and a car on Nov. 17.
Abdulle was arrested the same day and will remain in custody until he appears in court on Dec. 1.
Abdulle faces charges under the Criminal Code of Canada for identity theft and fraud, as well as human smuggling and misrepresentation under the Immigration and Refugee Protection Act.
Peter Showler, director of the University of Ottawa's Refugee Forum, said charges and convictions under the Immigration Refugee and Protection Act are rare. He said even though there are an increasing amount of immigration consultant fraud, the government hasn't been very good at tracking it down.
"From the point of view of the integrity of the immigration system, this is good news given that it's true," Showler said. "The use of fraudulent documents by some consultants has been a rampant problem in the immigration field for a very long time."
The Immigration Refugee and Protection Act makes it an offence for anyone other than an authorized consultant to advise an immigrant for a fee.
To become authorized, consultants have to register with Immigration Consultants of Canada Regulatory Council and must be in good standing.
A review of the council's membership list shows that Abdulle is not registered.
Tracie LeBlanc, a Citizenship and Immigration Canada spokeswoman, said that lawyers, law students and notaries are also authorized to provide immigration advice for a fee.
"To protect potential immigrants and the integrity of Canada's immigration program, the government is cracking down on unscrupulous immigration representatives and others who have preyed on these people," LeBlanc said.
Fraudulent immigration consultants often advertise guarantees of getting people into Canada, Showler says said.
Desperate to get into the country, immigrants may naively trust a fraudulent consultant.
"It can't be assumed that the immigrant themselves is committing the fraud until you found out what they were told by the fraudulent consultant," Showler said.
Ottawa man faces human smuggling, fraud charges
By Meghan Hurley, Postmedia NewsNovember 28, 2011
An Ottawa man who police allege posed as an immigration consultant and filed more than 90 sponsorship forms faces human smuggling, theft and fraud charges after a year-long investigation.
OTTAWA — An Ottawa man who police allege posed as an immigration consultant and filed more than 90 sponsorship forms faces human smuggling, theft and fraud charges after a year-long investigation.
Canada Border Services Agency spokesman Chris Kealey said documents used to support sponsorship forms, such as passports, identification and bank statements, may have been forged.
Kealey said the CBSA will investigate all sponsorship forms filed by the accused, Mohamed Farah Abdulle, 49. They have yet to determine whether any of the immigrants had knowledge that forged documents were used.
The investigation, involving the RCMP, Citizenship and Immigration Canada and the Ottawa police, continues and more charges could be laid.
The CBSA began the investigation, dubbed Project Vista, after they got a tip from a person whose identity was used in an immigration scheme.
The CBSA seized computers and documents after search warrants were executed at two Ottawa homes and a car on Nov. 17.
Abdulle was arrested the same day and will remain in custody until he appears in court on Dec. 1.
Abdulle faces charges under the Criminal Code of Canada for identity theft and fraud, as well as human smuggling and misrepresentation under the Immigration and Refugee Protection Act.
Peter Showler, director of the University of Ottawa's Refugee Forum, said charges and convictions under the Immigration Refugee and Protection Act are rare. He said even though there are an increasing amount of immigration consultant fraud, the government hasn't been very good at tracking it down.
"From the point of view of the integrity of the immigration system, this is good news given that it's true," Showler said. "The use of fraudulent documents by some consultants has been a rampant problem in the immigration field for a very long time."
The Immigration Refugee and Protection Act makes it an offence for anyone other than an authorized consultant to advise an immigrant for a fee.
To become authorized, consultants have to register with Immigration Consultants of Canada Regulatory Council and must be in good standing.
A review of the council's membership list shows that Abdulle is not registered.
Tracie LeBlanc, a Citizenship and Immigration Canada spokeswoman, said that lawyers, law students and notaries are also authorized to provide immigration advice for a fee.
"To protect potential immigrants and the integrity of Canada's immigration program, the government is cracking down on unscrupulous immigration representatives and others who have preyed on these people," LeBlanc said.
Fraudulent immigration consultants often advertise guarantees of getting people into Canada, Showler says said.
Desperate to get into the country, immigrants may naively trust a fraudulent consultant.
"It can't be assumed that the immigrant themselves is committing the fraud until you found out what they were told by the fraudulent consultant," Showler said.
Monday, November 28, 2011
SERVICE CANADA UNION UNHAPPY WITH MINISTER'S COMMENTS
Productivity is down, processing times are up, but of course the union complains...what else is new?
Union unhappy with Minister's comments about workers - Prince Edward Island - CBC News
Union unhappy with Minister's comments about workers - Prince Edward Island - CBC News
Saturday, November 26, 2011
THREE TIME DEPORTEE REVOLVING DOOR TO CANADA
The better question in the case below, recently reported, is how did the applicant manage to get back into Canada after being repeatedly deported. It gives us pause to consider this week's Auditor General report that chastised immigration authorities for lack of appropriate mechanisms to ensure public safety.
REASONS FOR JUDGMENT AND JUDGMENT
· I. Preliminary
· II. Introduction
· III. Facts
· IV. Issue
· V. Analysis
· VI. Conclusion
Khodja v. Canada (Minister of Citizenship and Immigration)
Between Mustapha Khodja, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1387
[2011] A.C.F. no 1387
2011 FC 1087
Docket IMM-5764-10
Docket IMM-5764-10
Federal Court
Montréal, Quebec
Shore J.
Heard: September 7, 2011.
Judgment: October 4, 2011.
Montréal, Quebec
Shore J.
Heard: September 7, 2011.
Judgment: October 4, 2011.
(55 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
SHORE J.:--
1 The applicant acknowledges that he is inadmissible. He therefore cannot obtain permanent residence in the spouse or common-law partner in Canada class.
2 One of the cornerstones of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), is the requirement that persons who wish to settle in Canada must, prior to their arrival in Canada, submit their application outside Canada and qualify for, and obtain, a permanent residence visa. Section 25 of the IRPA gives the Minister the flexibility to approve deserving cases for processing within Canada. This is clearly meant to be an exceptional remedy, as is made clear by the wording of that provision (Serda v. Canada (Minister of Citizenship and Immigration), 2006 FC 356, at paragraph 20).
3 Given the separation of powers between the three branches of government, public policy considerations are determined by the Minister designated as responsible for the Act in that respect. Only the Minister has the discretionary authority to determine what constitutes public policy; officers cannot extend their scope and the judicial branch can only interpret the law according to the intention of Parliament (Vidal v. Canada (Minister of Employment and Immigration) (1991), 41 F.T.R. 118, [1991] F.C.J. No. 63 (T.D.) (QL/Lexis); Dawkins v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 639, 45 F.T.R. 198 (T.D.)).
4 This is an application for judicial review of the decision by the immigration officer who rejected the application for permanent residence (APR) in Canada which the applicant submitted in the spouse or common-law partner in Canada class.
5 The immigration officer was of the opinion that the applicant did not meet the definition of a person with a "lack of status" described in the public policy established under subsection 25(1) of the IRPA to facilitate processing in accordance with the regulations of the spouse or common-law partner in Canada class, Appendix H of the IP 8 Immigration Manual.
6 Counsel for both parties argued and furthered their respective positions in a very impressive manner, fulfilling their mandates completely.
7 After a thorough analysis, the immigration officer's decision is reasonable and does not contain any reviewable error.
8 The applicant is a citizen of Algeria who arrived in Canada in December 2002. He sought refugee protection, but abandoned his claim.
9 On August 21, 2004, the applicant was deported from Canada.
10 In Canada, on January 31, 2007, his spouse gave birth to their son, Adam Ryan Khodja, and on November 27, 2009, to Yani Khodja, who are both Canadian citizens.
11 In February 2007, the applicant apparently came back to Canada and, on February 16, 2007, a certificate refusing authorization to return was issued against him.
12 In April 2007, the applicant waived filing a pre-removal risk assessment (PRRA) application.
13 On April 24, 2007, the applicant was again deported from Canada.
14 In January 2009, the applicant purportedly returned to Canada again and, in March 2009, he filed an APR in the spouse or common-law partner in Canada class.
15 On August 12, 2009, a negative PRRA decision was rendered against the applicant and the Federal Court refused the application for leave he submitted against this decision.
16 On September 23, 2010, the immigration officer refused the APR. The applicant is challenging that decision in this application for judicial review before the Federal Court.
17 On November 30, 2010, the applicant was again deported to Algeria.
18 Is the immigration officer's decision to refuse the applicant's APR unreasonable and/or does it contain any reviewable error?
19 The applicant submitted an APR in the spouse or common-law in Canada class, but did not submit an application for an exemption on humanitarian and compassionate (H&C) grounds. The officer who considered the APR assessed the applicability of the public policy whereby the condition requiring the applicant to have a legal status in Canada can be disregarded.
20 Even if the policy is based on subsection 25(1) of the IRPA, the officer did not, on her own initiative, assess the existence of H&C grounds justifying an exemption from the legal status requirement for the applicant.
21 Because the applicant did not present any evidence of H&C grounds, the Court cannot find that H&C grounds should have been considered in the context of the APR.
Spouse or common-law partner in Canada class
22 By virtue of subsection 13(1) of the IRPA, "[a] Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class". This class is established "on the basis of [a foreign national's] relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident" (subsection 12(1) of the IRPA).
23 The intent of the family class program is to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives and family members. Foreign nationals who apply as members of the "family class" for permanent residence visas are given preferential treatment under Canadian immigration law and policy. For example, their applications are processed, as a matter of policy, on a priority basis (Sultana v. Canada (Minister of Citizenship and Immigration), 2009 FC 533, [2010] 1 F.C.R. 175, at paragraph 18).
24 According to section 124 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR), three conditions are imposed on applicants who apply for permanent residence in such a class: (1) the applicant must be the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada; (2) the applicant must have temporary resident status in Canada; and (3) the applicant must be the subject of a sponsorship application.
· The applicant submitted an APR in the spouse or common-law partner in Canada class
25 In this case, it is clearly apparent in the tribunal record that the applicant submitted an APR in the spouse or common-law partner in Canada class.
26 However, the applicant does not have temporary resident status in Canada.
27 The following excerpts from the public policy are of interest in this case:
· 1. Purpose
· The Minister has established a public policy under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA), setting the criteria under which spouses and common-law partners of Canadian citizens and permanent residents in Canada who do not have legal immigration status will be assessed for permanent residence. The objective of this policy is to facilitate family reunification and facilitate processing in cases where spouses and common-law partners are already living together in Canada.
· ...
· 3. Policy
· ....
· A25 is being used to facilitate the processing of all genuine out-of-status spouses or common-law partners in the Spouse or Common-law Partner in Canada class where an undertaking has been submitted. Pending H&C spousal applications with undertakings will also be processed through this class1. The effect of the policy is to exempt applicants from the requirement under R124(b) to be in status and the requirements under A21(1) and R72(1)(e)(i) to not be inadmissible due to a lack of status; however, all other requirements of the class apply and applicants will be processed based on guidelines in IP2 and IP8.
[Emphasis added.] |
* * *
· 1. Objet
· Le Ministre a établi une politique d'intérêt public en vertu du paragraphe 25(1) de la Loi sur l'immigration et la protection des réfugiés (LIPR) dans laquelle il expose les critères d'évaluation de la demande de résidence permanente des personnes qui n'ont pas de statut d'immigration légal et qui sont des époux et des conjoints de fait de citoyens canadiens et de résidents permanents au Canada. L'objectif de cette politique est de faciliter le regroupement familial ainsi que le traitement des cas des époux et des conjoints de fait qui vivent déjà ensemble au Canada.
· [...]
· 3. Politique
· [...]
· Le L25 est utilisé pour faciliter le traitement dans la catégorie des époux ou conjoints de fait au Canada de tous les cas d'époux ou de conjoints de fait authentiques qui sont sans statut et où un engagement a été présenté. Les demandes CH de conjoint, en attente, qui sont assorties d'un engagement seront aussi traitées dans cette catégorie1. L'effet de cette politique est de dispenser le demandeur de l'obligation prévue au R124b) d'avoir un statut d'immigration et des exigences prévues au L21(1) et au R72(1)e)(i) de ne pas être interdit de territoire pour absence de statut; cependant, toutes les autres exigences de la catégorie s'appliquent et les cas des demandeurs seront traités en fonction des lignes directrices de l'IP2 et de l'IP8.
[La Cour souligne]. |
28 It is apparent from this excerpt that, in accordance with the public policy, applicants are exempt from the requirement of having a legal status and cannot be inadmissible due to a lack of status. However, all of the other requirements of the class apply.
29 Legal temporary resident status in Canada is set out in section 5.27 of the IP 8 Immigration Manual:
· 5.27. Legal temporary resident status in Canada
· Under the current Regulations, applicants in this spouse or common-law partner in Canada class must have a valid temporary resident status on the date of application and on the date they receive permanent resident status to be eligible to be members of the class.
· However, under the spousal policy, applicants who lack status as defined under the public policy (see "What is lack of status under the public policy" below) may be granted permanent residence so long as they meet all the other requirements of the class (i.e., they are not inadmissible for reasons other than "lack of status.")
· ...
· What is "lack of status" under the public policy?
· For the purposes of the current public policy, persons with a "lack of status" refers to those in the following situations:
· * persons who have overstayed a visa, visitor record, work permit, student permit or temporary resident permit;
· * persons who have worked or studied without being authorized to do so as prescribed by the Act;
· * persons who have entered Canada without a visa or other document required by the Regulations;
· * persons who have entered Canada without a valid passport or travel document (provided valid documents are acquired by the time CIC seeks to grant permanent residence).
· * persons who did not present themselves for examination when initially entering Canada but who did so subsequently.
· "Lack of status" does not refer to any other inadmissibilities including, but not limited to:
· * failure to obtain any required permission to enter Canada after being removed;
· ...
[Emphasis added.] |
* * *
· 5.27. Statut juridique de résident temporaire au Canada
· En vertu du Règlement actuel, pour que les demandeurs puissent faire partie de la catégorie des époux ou conjoints de fait au Canada, ils doivent détenir un statut de résident temporaire valide à la date de la demande et à la date à laquelle ils obtiennent le statut de résident permanent.
· Cependant, dans le cadre de la politique sur les époux, les demandeurs sans statut, conformément à la définition contenue dans cette politique (voir la section intitulée "Qu'entend-on par "personne sans statut" aux fins de la politique d'intérêt public?"), peuvent obtenir la résidence permanente à condition qu'ils répondent à toutes les autres exigences de la catégorie (p. ex. ils ne sont pas interdits de territoire pour des raisons autres que celles liées à l'"absence de statut").
· [...]
· Qu'entend-on par "personne sans statut" aux fins de la politique d'intérêt public?
· Aux fins de cette politique d'intérêt public, une "personne sans statut" s'entend de celle qui se trouve dans l'une des situations suivantes :
· * personne qui dépasse la durée du séjour autorisée par son visa, sa fiche de visiteur, son permis de travail, son permis d'études ou son permis de séjour;
· * personne qui a travaillé ou étudié sans y être autorisé aux termes de la Loi;
· * personne qui est entrée au Canada sans le visa ou les autres documents requis aux termes du Règlement;
· * personne qui est entrée au Canada sans un passeport valide ou un titre de voyage (les documents valides doivent être acquis au moment où CIC accorde la résidence permanente).
· * personnes qui ne se sont pas présentées à l'examen à leur arrivée au Canada, mais qui s'y sont soumis par la suite.
· "Personne sans statut" ne s'entend pas d'une personne qui est interdite de territoire pour toute autre raison, notamment :
· * ne pas avoir obtenu l'autorisation requise d'entrer au Canada après avoir été renvoyée;
· [...]
[La Cour souligne]. |
30 What therefore emerges from these texts is that, under the public policy, APR applicants in the "spouse or common-law partner in Canada" class who lack status may be granted permanent residence so long as they meet all the other requirements of the class, including the requirement to not be inadmissible for reasons other than lack of status.
31 The applicant therefore does not meet the requirements of the public policy.
32 In this case, the applicant is a foreign national who is inadmissible because he was deported from Canada and returned without requesting authorization to return to Canada.
33 Subsection 52(1) of the IRPA reads as follows:
· 52. (1) If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances.
* * *
· 52. (1) L'exécution de la mesure de renvoi emporte interdiction de revenir au Canada, sauf autorisation de l'agent ou dans les autres cas prévus par règlement.
34 Subsection 226(1) of the IRPR reads as follows:
· 226. (1) For the purposes of subsection 52(1) of the Act, and subject to subsection (2), a deportation order obliges the foreign national to obtain a written authorization in order to return to Canada at any time after the deportation order was enforced.
* * *
· 226. (1) Pour l'application du paragraphe 52(1) de la Loi, mais sous réserve du paragraphe (2), la mesure d'expulsion oblige l'étranger à obtenir une autorisation écrite pour revenir au Canada à quelque moment que ce soit après l'exécution de la mesure.
35 The applicant acknowledges that he is inadmissible. He therefore cannot obtain permanent residence in the spouse or common-law partner in Canada class. He nevertheless argues that the officer who assessed his APR should have assessed the H&C grounds thoroughly. It must therefore be concluded that the officer assessed the applicability of the public policy in accordance with the requirements of the law and the intention of Parliament.
Scope of subsection 25(1) of the IRPA
36 One of the cornerstones of the IRPA is the requirement that persons who wish to settle in Canada must, prior to their arrival in Canada, submit their application outside Canada and qualify for, and obtain, a permanent residence visa. Section 25 of the IRPA gives the Minister the flexibility to approve deserving cases for processing within Canada. This is clearly meant to be an exceptional remedy, as is made clear by the wording of that provision (Serda, above).
Public interest
37 Given the separation of powers between the three branches of government, public policy considerations are determined by the Minister designated as responsible for the Act in that respect. Only the Minister has the discretionary authority to determine what constitutes public policy; officers cannot extend their scope and the judicial branch can only interpret the law according to the intention of Parliament (Vidal and Dawkins, above).
H&C grounds and best interests of the child
38 Further to Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, by the Supreme Court of Canada, the IRPA introduced the legal requirement to consider the best interests of a child directly affected by a decision made in accordance with subsection 25(1) when assessing the circumstances of a foreign national who is submitting an application pursuant to this subsection.
39 The Federal Court of Appeal, in Canada (Minister of Citizenship and Immigration) v. Legault, 2002 FCA 125, [2002] 4 F.C. 358, found that an officer must seriously consider the best interests of children in the circumstances; this does not result in a prima facie presumption that the best interests of children must always prevail.
40 The applicant acknowledged in his memorandum that he did not qualify for the spouse or common-law partner in Canada class because he was inadmissible.
41 The officer did not [TRANSLATION] "fall back on" subsection 25(1) of the IRPA. The officer assessed the application submitted in the spouse or common-law partner in Canada class according to the requirements of the public policy established by the Minister.
42 Accordingly, the officer noted that the applicant did not meet the requirement of holding temporary resident status in Canada as set out in paragraph 124(b) of the IRPR and assessed the application in accordance with the requirements of the policy on spouses.
43 When the officer noted that the applicant did not meet the requirements of the policy on spouses, she stopped processing the application and rendered her decision.
44 The exemption set out in the public policy arises from the Minister's discretionary authority (Rakheja v. Canada (Minister of Citizenship and Immigration), 2009 FC 633, at paragraph 33).
45 However, in addition to the fact that there was no form requesting that H&C considerations be evaluated, the applicant's APR contained no submission to that effect.
46 Consequently, it was reasonable for the officer to assess the application according to the public policy established at subsection 25(1) of the IRPA to facilitate processing in accordance with the regulations of the spouse or common-law partner in Canada class.
· The applicant did not present evidence of H&C grounds
47 The applicant alleges that the officer should have reviewed and considered each reference to the child.
48 Concerning the requirement for an officer to consider the interests of a child in the context of an APR, the Federal Court of Appeal, in Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2994] 2 F.C.R. 635, stated the following:
· [5] An immigration officer considering an H & C application must be "alert, alive and sensitive" to, and must not "minimize", the best interests of children who may be adversely affected by a parent's deportation: Baker v. Canada (Minister of Citizenship and Immigration ), [1999] 2 S.C.R. 817 at para. 75. However, this duty only arises when it is sufficiently clear from the material submitted to the decision-maker that an application relies on this factor, at least in part. Moreover, an applicant has the burden of adducing proof of any claim on which the H & C application relies. Hence, if an applicant provides no evidence to support the claim, the officer may conclude that it is baseless. [Emphasis added.]
49 It was reasonable for the officer to fail to mention all of the references to the child scattered throughout the record because there was nothing apparent that enabled her to find that the applicant wanted her to consider the best interests of the child or any other H&C ground.
50 It is not incumbent on the officer to alert the applicant to insufficiencies in the evidence (Samsonov v. Canada (Minister of Citizenship and Immigration), 2006 FC 1158).
51 In his APR, the applicant did not at any point demonstrate or allege in his forms or submissions that H&C circumstances concerning the best interests of his child or any other grounds had to be considered.
52 Moreover, in his submissions, he indicated instead that he was not allowed to be in the presence of children.
53 The applicant was convicted of theft on August 16, 2004. He is inadmissible to Canada in accordance with paragraph 36(2)(a) of the IRPA.
54 Finally, this Court has already determined that APRs in the spouse or common-law partner in Canada class are not tantamount to H&C applications (Ali v. Canada (Minister of Citizenship and Immigration), 2007 FC 902, 313 F.T.R. 151, at paragraph 18).
55 In light of the foregoing, the Court dismisses the applicant's application for judicial review.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the applicant's application for judicial review be dismissed. No question of general importance arises for certification.
Certified true translation: Janine Anderson, Translator
Friday, November 25, 2011
ARCHITECT DID NOT SHOW ENOUGH EVIDENCE OF DUTIES IN SKILLED WORKER APPLICATION
It seems that the evidence before the visa officer was not completely satisfactory to show that this Architect performed all the duties of that profession. Application preparation is key. The Federal Court refused to quash the decision of the visa officer.
Tabanag v. Canada (Minister of Citizenship and Immigration)
Between
Bryan Cabrera Tabanag, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1575
2011 FC 1293
Docket IMM-1932-11
Federal Court
Toronto, Ontario
Mosley J.
Heard: November 2, 2011.
Judgment: November 10, 2011.
(28 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 MOSLEY J.:-- Mr. Bryan Cabrera Tabanag applied for permanent resident status as a skilled worker indicating that he had work experience as an Architect in Manila, Philipines. In a decision dated March 2, 2011, a service delivery agent at the respondent's Centralized Intake Office in Sydney, Nova Scotia assessed that Mr. Tabanag was not eligible for processing in the skilled worker category.
2 Mr. Tabanag seeks judicial review of that decision under section 72 of the Immigration and Refugee Protection Act, SC 2001, c 26. For the reasons that follow, the application is dismissed.
BACKGROUND:
3 The position of "Architect" bears the National Occupation Code (NOC) of 2151 in the standardized classification system used by the respondent to assess skilled worker applications. NOC 2151 describes the tasks and duties of an architect in these terms:
• Architects conceptualize, plan and develop designs for the construction and renovation of commercial, institutional and residential buildings. They are employed by architectural firms, private corporations and governments, or they may be self-employed.
• [...]
• Architects perform some or all of the following duties:
• * Consult with clients to determine type, style and purpose of renovations or new building construction being considered
• * Conceptualize and design buildings and develop plans describing design specifications, building materials, costs and construction schedules
• * Prepare sketches and models for clients
• * Prepare or supervise the preparation of drawings, specifications and other construction documents for use by contractors and tradespersons
• * Prepare bidding documents, participate in contract negotiations and award construction contracts
• * Monitor activities on construction sites to ensure compliance with specifications
• * Conduct feasibility studies and financial analyses of building projects.
• Architects may specialize in a particular type of construction such as residential, commercial, industrial or institutional.
4 Mr. Tabanag holds a bachelor of science in architecture. He worked for more than 20 years for a developer in Manila, Design Coordinates Inc., which develops high rise buildings in that city. In submitting his application for permanent residence, he followed the instructions in a document provided by the respondent for such applications from Manila. Attached as Appendix A to the instructions was a checklist of the steps to be completed and information to be provided ("the Manila checklist").
5 Item 7 of the checklist completed by the applicant required him to submit employment certificates from present and past employers setting out, among other things, the positions held and "full details of your main responsibilities and duties in each position". A note in bold advised applicants that if they could not provide employment certificates they were to provide a written explanation and other documentation that would support their claim to such employment.
6 According to a certificate issued by his employer and submitted with the application, the applicant held the position of Construction Project Architect. However, there is no description of the tasks and duties performed by the applicant in the certificate. Nor is there any evidence of a written explanation or other documentation submitted by the applicant in the Certified Tribunal Record to support his claim that he performed the duties of an architect; other than a letter from a government official addressed to him as "Architect Bryan Tabanag, Site Safety Health Officer/Assistant Construction Project Manager" inviting the applicant to participate in a discussion on the implementation of a construction safety and health program.
7 The agent was not satisfied that the applicant had provided sufficient evidence that he had performed the actions described in the lead statement for the occupation or performed a substantial number of the main duties of the occupation as set out in the occupational description of the NOC. The application was thus denied.
8 In this proceeding, Mr. Tabanag has filed his affidavit attesting to his employment responsibilities and the affidavit of an immigration consultant, Rosalinda Ong, who prepared the skilled worker application on his behalf. Ms. Ong deposes as to information she received from the applicant respecting the work that he performed for his employer that would qualify him under NOC 2151. She deposes further that in response to a request for a certificate of Mr. Tabanag's employment containing particulars of his duties, hours and wages the employer returned a letter without that information. Ms. Ong and Mr. Tabanag state in their affidavits that this is because employers in the Philippines are reluctant to be specific about such matters for fear of lawsuits and union problems.
9 The respondent objected to the introduction of evidence that was not before the agent when the decision was made. At the hearing, I noted the objection and indicated that I would deal with it in rendering a decision on the merits of the application.
ISSUES:
10 The parties have raised a number of issues with respect to the manner in which the skilled worker application was assessed. They can be reduced to the following questions:
• a. Is the applicant's fresh affidavit evidence admissible?
• b. Was the decision of the agent reasonable?
ANALYSIS:
Standard of Review:
11 The applicant raises procedural fairness considerations and questions of law. To the extent that such questions arise in this case no deference would be due the decision maker: Sketchley v Canada (Attorney General), 2005 FCA 404 at paras 52-53. Otherwise, the parties submit and I agree that the standard of review for decisions on permanent residence under the federal skilled worker class has been satisfactorily determined in the jurisprudence to be reasonableness: Oladipo v Canada (Minister of Citizenship and Immigration), 2008 FC 366 at para 23; and Kaur v Canada (Minister of Citizenship and Immigration), 2008 FC 1189 at para 17.
12 Apart from any question of law or of natural justice, the decision in this case is factual in nature and discretionary. Deference is thus owed to the decision-maker. A reasonable decision is one that falls within a range of possible and acceptable outcomes which are defensible with respect to the facts and the law: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
Is the applicant's affidavit evidence admissible?
13 As a preliminary issue, the respondent objects to the introduction of paragraphs 4 to 9 of the applicant's affidavit and paragraphs 8 to 14 and 19 of Ms. Ong's affidavit on the ground that they contain statements concerning the applicant's employment duties and responsibilities and explanations for why he did not provide additional evidence in his skilled worker application that were not submitted to the agent.
14 It is trite law that the scope of the evidence on an application for judicial review is restricted to the material that was before the decision-maker: Lemiecha et al. v Canada (Minister of Employment and Immigration) (1993), 72 FTR 49 at para 4; and Walker v Randall (1999), 173 FTR 161). Additional evidence may be submitted on issues of procedural fairness and jurisdiction: Ontario Assn. of Architects v Assn. of Architectural Technologists of Ontario, [2003] 1 FC 331 (CA), leave to appeal to the Supreme Court of Canada refused.
15 The impugned evidence is not admissible in this proceeding to bolster the applicant's claim that he met the requirements of the NOC classification when he submitted his skilled worker application. In particular, the applicant may not rely on the assertions in the affidavits regarding his employment duties or the practice of employers in Manila to be shy of certifying such duties. The affidavit evidence is admissible solely for the limited purpose of supporting his argument that the manner in which his application was assessed was unfair.
Was the decision reasonable?
16 The applicant acknowledges that he bears the onus of satisfying the agent under ss.11 (1) of the IRPA and that the burden of proof upon him was the balance of probability: Hilewitz v Canada (Minister of Citizenship and Immigration), 2005 SCC 57 at para 58. He submits that the agent applied a standard of proof which was too high and misapplied s.80 (3) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (hereafter the Regulations) and the NOC 2151 statement of duties to the facts before him.
17 The applicant argues that he met the evidentiary standard with regard to the lead statement in NOC 2151. He was trained as an architect and he was employed as an architect. Once prima facie evidence of this was provided to the agent, he submits, the officer had a duty to inform the applicant of his doubts, if he had any, which would prevent the issuing of a visa: Hussain v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1570 at paras 34-35.
18 Paragraph 80 (3) (b) of the Regulations requires an officer to consider whether or not the applicant has performed a substantial number of duties found in a NOC. Courts have interpreted that paragraph as meaning that an officer needs to be satisfied that an applicant has performed one or more of the main duties: A'Bed v Canada (Minister of Citizenship and Immigration), 2002 FCT 1027 at para 12; Noman v Canada (Minister of Citizenship and Immigration), 2002 FCT 1169 at para 28; and Dahyalal v Canada (Minister of Citizenship and Immigration), 2007 FC 666 at para 4.
19 The applicant submits that use of the checklist oversteps the powers of the Minister under paragraph 80 (3) (b) of the IRPA. He argues that the word "including" in that provision limits the directions that the Minister can issue to the subject matter listed in the subsection, that is to a "substantial number of the main duties of the occupation...including all the essential duties". The checklist goes further, he says, by requiring "full details of your main responsibilities and duties in each position."
20 I do not accept the applicant's argument that the use, in itself, of the Manila checklist is unfair. The checklist provides notice to an applicant that he or she must put their best foot forward and that the onus is on him or her to provide all relevant documents: the Immigration and Refugee Protection Regulations, SOR/2002-227, ss.75 (2) (3) and 80 (3); Lam v Canada (Minister of Citizenship and Immigration), 152 FTR 316, [1998] FCJ No 123 at para 4; Chen v Canada (Minister of Citizenship and Immigration), 171 FTR 265, [1999] FCJ No 1123 at para 26; and Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 442 at paras 10-14.
21 The respondent's agents may not interpret and apply the Manila checklist in a manner that exceeds the scope of the Minister's authority. "[A]ll exercises of public authority must find their source in law": Dunsmuir, above, at paragraph 28; Stemijon Investments Ltd. v Canada (Attorney General), 2011 FCA 299 at paragraphs 24-25. There may be instances where strict application of the checklist by officials will go beyond the Minister's statutory and regulatory authority and will also result in a breach of natural justice. I do not consider it necessary in the circumstances of this case to comment on whether the checklist requirement to provide "full details of your main responsibilities and duties in each position", certified by the employer, exceeds the regulatory authority.
22 Here, there was no evidence before the agent to establish that the applicant had performed any of the duties required to satisfy the occupational classification. It is not sufficient for an applicant to provide evidence that he or she has the academic qualifications, bears a job title and is addressed by that title in correspondence. They must provide evidence that they have actually performed "a substantial number of the main duties of the occupation". Here, the applicant did not provide that evidence either through the employer's certificate or alternate documentation. The information submitted fell short of establishing a prima facie case, as the applicant contends.
23 As stated by Justice Rothstein in Lam, above at paragraph 4, while an officer can not be wilfully blind in assessing an application and must act in good faith, he does not have a duty to follow up on an application when the evidence is insufficient. See also Ramos-Frances v Canada (Minister of Citizenship and Immigration), 2007 FC 142 at paragraph 16; and Ahmed v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 940 at paragraph 8.
24 In the result, I am satisfied that the agent's decision that there was insufficient evidence to establish performance of the duties set out in the classification was reasonable and the application must be dismissed.
Certified Questions;
25 The applicant has proposed that I certify two questions:
• Given that the Manila checklist both contemplates and requires a level of supporting documentation on a mandatory level which contemplates an exactitude that is akin to an evidentiary standard of beyond a reasonable doubt, does such a checklist conflict with the standard of proof required by Section 11 (1) of the IRPA, whether that checklist was imported by policy or by prescription?
• Secondly, does the Court have the ability to apply administrative efficiency as a charge to defeat the plain meaning of Section 11 (1) of the IRPA?
26 The respondent is opposed to the certification of either question and does not propose any alternative.
27 In Zazai v Canada (Minister of Citizenship and Immigration), 2004 FCA 89 at paragraph 11, the threshold for certification was articulated by the Court of Appeal as whether the question would be dispositive of an appeal. In Boni v Canada (Minister of Citizenship and Immigration), 2006 FCA 68 the Court of Appeal added that a certified question must lend itself to a generic approach leading to an answer of general application. That is, the question must transcend the particular context in which it arose.
28 Here, neither of the proposed questions would be dispositive of an appeal in this matter nor would they lead to an answer of general application. The questions presume findings of fact and law that were not made in these proceedings and are not based on the admissible evidence in the record.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No questions are certified.
MOSLEY J.
Tabanag v. Canada (Minister of Citizenship and Immigration)
Between
Bryan Cabrera Tabanag, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1575
2011 FC 1293
Docket IMM-1932-11
Federal Court
Toronto, Ontario
Mosley J.
Heard: November 2, 2011.
Judgment: November 10, 2011.
(28 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 MOSLEY J.:-- Mr. Bryan Cabrera Tabanag applied for permanent resident status as a skilled worker indicating that he had work experience as an Architect in Manila, Philipines. In a decision dated March 2, 2011, a service delivery agent at the respondent's Centralized Intake Office in Sydney, Nova Scotia assessed that Mr. Tabanag was not eligible for processing in the skilled worker category.
2 Mr. Tabanag seeks judicial review of that decision under section 72 of the Immigration and Refugee Protection Act, SC 2001, c 26. For the reasons that follow, the application is dismissed.
BACKGROUND:
3 The position of "Architect" bears the National Occupation Code (NOC) of 2151 in the standardized classification system used by the respondent to assess skilled worker applications. NOC 2151 describes the tasks and duties of an architect in these terms:
• Architects conceptualize, plan and develop designs for the construction and renovation of commercial, institutional and residential buildings. They are employed by architectural firms, private corporations and governments, or they may be self-employed.
• [...]
• Architects perform some or all of the following duties:
• * Consult with clients to determine type, style and purpose of renovations or new building construction being considered
• * Conceptualize and design buildings and develop plans describing design specifications, building materials, costs and construction schedules
• * Prepare sketches and models for clients
• * Prepare or supervise the preparation of drawings, specifications and other construction documents for use by contractors and tradespersons
• * Prepare bidding documents, participate in contract negotiations and award construction contracts
• * Monitor activities on construction sites to ensure compliance with specifications
• * Conduct feasibility studies and financial analyses of building projects.
• Architects may specialize in a particular type of construction such as residential, commercial, industrial or institutional.
4 Mr. Tabanag holds a bachelor of science in architecture. He worked for more than 20 years for a developer in Manila, Design Coordinates Inc., which develops high rise buildings in that city. In submitting his application for permanent residence, he followed the instructions in a document provided by the respondent for such applications from Manila. Attached as Appendix A to the instructions was a checklist of the steps to be completed and information to be provided ("the Manila checklist").
5 Item 7 of the checklist completed by the applicant required him to submit employment certificates from present and past employers setting out, among other things, the positions held and "full details of your main responsibilities and duties in each position". A note in bold advised applicants that if they could not provide employment certificates they were to provide a written explanation and other documentation that would support their claim to such employment.
6 According to a certificate issued by his employer and submitted with the application, the applicant held the position of Construction Project Architect. However, there is no description of the tasks and duties performed by the applicant in the certificate. Nor is there any evidence of a written explanation or other documentation submitted by the applicant in the Certified Tribunal Record to support his claim that he performed the duties of an architect; other than a letter from a government official addressed to him as "Architect Bryan Tabanag, Site Safety Health Officer/Assistant Construction Project Manager" inviting the applicant to participate in a discussion on the implementation of a construction safety and health program.
7 The agent was not satisfied that the applicant had provided sufficient evidence that he had performed the actions described in the lead statement for the occupation or performed a substantial number of the main duties of the occupation as set out in the occupational description of the NOC. The application was thus denied.
8 In this proceeding, Mr. Tabanag has filed his affidavit attesting to his employment responsibilities and the affidavit of an immigration consultant, Rosalinda Ong, who prepared the skilled worker application on his behalf. Ms. Ong deposes as to information she received from the applicant respecting the work that he performed for his employer that would qualify him under NOC 2151. She deposes further that in response to a request for a certificate of Mr. Tabanag's employment containing particulars of his duties, hours and wages the employer returned a letter without that information. Ms. Ong and Mr. Tabanag state in their affidavits that this is because employers in the Philippines are reluctant to be specific about such matters for fear of lawsuits and union problems.
9 The respondent objected to the introduction of evidence that was not before the agent when the decision was made. At the hearing, I noted the objection and indicated that I would deal with it in rendering a decision on the merits of the application.
ISSUES:
10 The parties have raised a number of issues with respect to the manner in which the skilled worker application was assessed. They can be reduced to the following questions:
• a. Is the applicant's fresh affidavit evidence admissible?
• b. Was the decision of the agent reasonable?
ANALYSIS:
Standard of Review:
11 The applicant raises procedural fairness considerations and questions of law. To the extent that such questions arise in this case no deference would be due the decision maker: Sketchley v Canada (Attorney General), 2005 FCA 404 at paras 52-53. Otherwise, the parties submit and I agree that the standard of review for decisions on permanent residence under the federal skilled worker class has been satisfactorily determined in the jurisprudence to be reasonableness: Oladipo v Canada (Minister of Citizenship and Immigration), 2008 FC 366 at para 23; and Kaur v Canada (Minister of Citizenship and Immigration), 2008 FC 1189 at para 17.
12 Apart from any question of law or of natural justice, the decision in this case is factual in nature and discretionary. Deference is thus owed to the decision-maker. A reasonable decision is one that falls within a range of possible and acceptable outcomes which are defensible with respect to the facts and the law: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
Is the applicant's affidavit evidence admissible?
13 As a preliminary issue, the respondent objects to the introduction of paragraphs 4 to 9 of the applicant's affidavit and paragraphs 8 to 14 and 19 of Ms. Ong's affidavit on the ground that they contain statements concerning the applicant's employment duties and responsibilities and explanations for why he did not provide additional evidence in his skilled worker application that were not submitted to the agent.
14 It is trite law that the scope of the evidence on an application for judicial review is restricted to the material that was before the decision-maker: Lemiecha et al. v Canada (Minister of Employment and Immigration) (1993), 72 FTR 49 at para 4; and Walker v Randall (1999), 173 FTR 161). Additional evidence may be submitted on issues of procedural fairness and jurisdiction: Ontario Assn. of Architects v Assn. of Architectural Technologists of Ontario, [2003] 1 FC 331 (CA), leave to appeal to the Supreme Court of Canada refused.
15 The impugned evidence is not admissible in this proceeding to bolster the applicant's claim that he met the requirements of the NOC classification when he submitted his skilled worker application. In particular, the applicant may not rely on the assertions in the affidavits regarding his employment duties or the practice of employers in Manila to be shy of certifying such duties. The affidavit evidence is admissible solely for the limited purpose of supporting his argument that the manner in which his application was assessed was unfair.
Was the decision reasonable?
16 The applicant acknowledges that he bears the onus of satisfying the agent under ss.11 (1) of the IRPA and that the burden of proof upon him was the balance of probability: Hilewitz v Canada (Minister of Citizenship and Immigration), 2005 SCC 57 at para 58. He submits that the agent applied a standard of proof which was too high and misapplied s.80 (3) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (hereafter the Regulations) and the NOC 2151 statement of duties to the facts before him.
17 The applicant argues that he met the evidentiary standard with regard to the lead statement in NOC 2151. He was trained as an architect and he was employed as an architect. Once prima facie evidence of this was provided to the agent, he submits, the officer had a duty to inform the applicant of his doubts, if he had any, which would prevent the issuing of a visa: Hussain v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1570 at paras 34-35.
18 Paragraph 80 (3) (b) of the Regulations requires an officer to consider whether or not the applicant has performed a substantial number of duties found in a NOC. Courts have interpreted that paragraph as meaning that an officer needs to be satisfied that an applicant has performed one or more of the main duties: A'Bed v Canada (Minister of Citizenship and Immigration), 2002 FCT 1027 at para 12; Noman v Canada (Minister of Citizenship and Immigration), 2002 FCT 1169 at para 28; and Dahyalal v Canada (Minister of Citizenship and Immigration), 2007 FC 666 at para 4.
19 The applicant submits that use of the checklist oversteps the powers of the Minister under paragraph 80 (3) (b) of the IRPA. He argues that the word "including" in that provision limits the directions that the Minister can issue to the subject matter listed in the subsection, that is to a "substantial number of the main duties of the occupation...including all the essential duties". The checklist goes further, he says, by requiring "full details of your main responsibilities and duties in each position."
20 I do not accept the applicant's argument that the use, in itself, of the Manila checklist is unfair. The checklist provides notice to an applicant that he or she must put their best foot forward and that the onus is on him or her to provide all relevant documents: the Immigration and Refugee Protection Regulations, SOR/2002-227, ss.75 (2) (3) and 80 (3); Lam v Canada (Minister of Citizenship and Immigration), 152 FTR 316, [1998] FCJ No 123 at para 4; Chen v Canada (Minister of Citizenship and Immigration), 171 FTR 265, [1999] FCJ No 1123 at para 26; and Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 442 at paras 10-14.
21 The respondent's agents may not interpret and apply the Manila checklist in a manner that exceeds the scope of the Minister's authority. "[A]ll exercises of public authority must find their source in law": Dunsmuir, above, at paragraph 28; Stemijon Investments Ltd. v Canada (Attorney General), 2011 FCA 299 at paragraphs 24-25. There may be instances where strict application of the checklist by officials will go beyond the Minister's statutory and regulatory authority and will also result in a breach of natural justice. I do not consider it necessary in the circumstances of this case to comment on whether the checklist requirement to provide "full details of your main responsibilities and duties in each position", certified by the employer, exceeds the regulatory authority.
22 Here, there was no evidence before the agent to establish that the applicant had performed any of the duties required to satisfy the occupational classification. It is not sufficient for an applicant to provide evidence that he or she has the academic qualifications, bears a job title and is addressed by that title in correspondence. They must provide evidence that they have actually performed "a substantial number of the main duties of the occupation". Here, the applicant did not provide that evidence either through the employer's certificate or alternate documentation. The information submitted fell short of establishing a prima facie case, as the applicant contends.
23 As stated by Justice Rothstein in Lam, above at paragraph 4, while an officer can not be wilfully blind in assessing an application and must act in good faith, he does not have a duty to follow up on an application when the evidence is insufficient. See also Ramos-Frances v Canada (Minister of Citizenship and Immigration), 2007 FC 142 at paragraph 16; and Ahmed v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 940 at paragraph 8.
24 In the result, I am satisfied that the agent's decision that there was insufficient evidence to establish performance of the duties set out in the classification was reasonable and the application must be dismissed.
Certified Questions;
25 The applicant has proposed that I certify two questions:
• Given that the Manila checklist both contemplates and requires a level of supporting documentation on a mandatory level which contemplates an exactitude that is akin to an evidentiary standard of beyond a reasonable doubt, does such a checklist conflict with the standard of proof required by Section 11 (1) of the IRPA, whether that checklist was imported by policy or by prescription?
• Secondly, does the Court have the ability to apply administrative efficiency as a charge to defeat the plain meaning of Section 11 (1) of the IRPA?
26 The respondent is opposed to the certification of either question and does not propose any alternative.
27 In Zazai v Canada (Minister of Citizenship and Immigration), 2004 FCA 89 at paragraph 11, the threshold for certification was articulated by the Court of Appeal as whether the question would be dispositive of an appeal. In Boni v Canada (Minister of Citizenship and Immigration), 2006 FCA 68 the Court of Appeal added that a certified question must lend itself to a generic approach leading to an answer of general application. That is, the question must transcend the particular context in which it arose.
28 Here, neither of the proposed questions would be dispositive of an appeal in this matter nor would they lead to an answer of general application. The questions presume findings of fact and law that were not made in these proceedings and are not based on the admissible evidence in the record.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No questions are certified.
MOSLEY J.
Subscribe to:
Posts (Atom)
