REFUGEE SYSTEM NEEDS BETTER SCREENING

This situation may not be unusual. The system is badly broken and we really do not know who anyone undocumented really is.

Alleged gunman arrived as a refugee | Canada | News | London Free Press

REFUGEE CONVICTED OF CHILD MANSLAUGHTER LOSES BID FOR JUDICIAL REVIEW

See astonishing case below. An unfortunate chain of events lead to the death of a child. A person granted refugee status in Canada with a history of domestic violence and convicted of manslaughter was refused judicial review.

The policy question is why an individual who was convicted of such a serious offence, and who according to the decision still presents a risk to society, should have access to request to remain in Canada? His refugee status protected him from removal unless the Minister conducted an exhaustive review of his case.  Should persons who pose a risk to society have the ability to stall their removal for lengthy periods of time? In this case, six years passed since the offence. You decide.

Clarke v. Canada (Minister of Citizenship and Immigration)

Between Beyan Dunoh Clarke, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 985

2012 FC 910

Docket IMM-7453-11

Federal Court
Winnipeg, Manitoba

O'Reilly J.

Heard: April 16, 2012.
Judgment: July 20, 2012.

(43 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

O'REILLY J.:--

·       I. Overview

1     In 2008, Mr. Beyan Dunoh Clarke, a refugee from Liberia, was convicted of manslaughter after beating his girlfriend's two-year-old son to death. He was sentenced to 8 years' imprisonment.

2     In 2011, the Minister of Citizenship and Immigration (by a delegate acting on his behalf) found that Mr. Clarke was inadmissible to Canada based on serious criminality, that he presented a danger to the public in Canada, and that he should be removed to Liberia. The Minister's decision weighed the risk that Mr. Clarke presented to Canadians and the risk he faced in Liberia, as well as humanitarian and compassionate factors in Mr. Clarke's favour.

3     Mr. Clarke argues that the Minister's decision was unreasonable because it discounted the risk he faces in Liberia and the favourable humanitarian and compassionate factors in his case. Mr. Clarke also submits that he was treated unfairly because the Minister relied on evidence that had not been disclosed to him. He asks me to quash the Minister's decision.

4     I can find no basis for overturning the Minister's decision. The Minister carried out a detailed analysis of the relevant evidence and balanced the applicable factors. His conclusion was a defensible outcome based on the facts and the law. In addition, the Minister did not treat Mr. Clarke unfairly in arriving at his conclusion; he did not rely on extrinsic evidence.

5     The issues are:

·       1. Was the Minister's analysis of the relevant evidence unreasonable? 

·       2. Did the Minister treat Mr. Clarke unfairly by relying on documents not disclosed to him? 

·       II. The Legal Framework

6     In general, refugees cannot be returned to a place where they risk persecution or other serious mistreatment (Immigration and Refugee Protection Act, [IRPA], SC 2001, c 27, s 115(1) - see Annex for provisions cited). However, that principle gives way when the person is inadmissible to Canada on grounds of serious criminality, and represents a danger to the Canadian public (s 115(2)(a)).

7     In deciding whether the person can be removed from Canada, the Minister must balance the risk faced by the refugee and the danger to the Canadian public (Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para 126). In order to respect the person's rights under s 7 of the Canadian Charter of Rights and Freedoms, the Minister must also assess whether, on removal, the refugee will likely face a risk to life, liberty or security, and balance that risk against the nature and severity of the person's conduct, the danger to Canadians, and the humanitarian and compassionate considerations in the person's favour (Suresh, at para 76-79; Ragupathy v Canada (Minister of Citizenship and Immigration), 2006 FCA 151, at para 19).

8     In effect, the question to be asked is whether it would be disproportionately harsh to remove the person from Canada, considering the risk to Canadians, the risk of harm facing the person, and the humanitarian and compassionate factors in play. Obviously, there will almost always be some risk of persecution or other harm facing the person if removed from Canada because the person will have already demonstrated a well-founded fear of persecution or a substantial risk of other serious harm in his or her country of origin. Therefore, evidence of risk is not enough on its own to forestall removal if the person is inadmissible on grounds of serious criminality. To remain in Canada, the risks and hardships of removal must outweigh the danger to Canadians.

·       III. The Minister's Decision

9     The Minister concluded that Mr. Clarke was inadmissible to Canada on the basis of his manslaughter conviction. He went on to consider the circumstances of the offence, as well as Mr. Clarke's behaviour, including his previous and subsequent conduct. He then considered the nature of the risk facing Mr. Clarke if removed from Canada to Liberia, and the humanitarian and compassionate factors in his favour.

·       (a) The offence

10     Mr. Clarke lived with his girlfriend, Ms. Georgia Swaray, and her two-year-old son, Alfread. In February 2006, Mr. Clarke yelled at Alfread and beat him with a belt. Alfread suffered bruises on his back and, the next day, was lethargic. Later that month, contrary to Mr. Clarke's instructions, Ms. Swaray fed Alfread while Mr. Clarke was at work. When he arrived home, Mr. Clarke noticed that Alfread had been fed and beat him again until he lay unresponsive on the floor. Ms. Swaray carried Alfread to bed. She did not check on him when she left for work the next morning. Mr. Clarke called her shortly after she left and asked her to return home. When she arrived, Alfread lay dead in the bathtub. Mr. Clarke did not call for assistance.

11     Alfread died of brain trauma. His body was covered in bruises. He showed signs of fasting and dehydration.

·       (b) Mr. Clarke's conduct

12     Mr. Clarke had been charged with domestic abuse in 2005, but those charges were stayed in 2007. It was alleged that he had beaten his then-girlfriend's nine-month-old child.

13     After Mr. Clarke was arrested for manslaughter in relation to Alfread's death, he was released on bail. However, he breached the conditions of his release twice and was convicted of violating his bail restrictions.

14     The Correctional Service of Canada [CSC] assessed Mr. Clarke and found that he was unremorseful for his conduct. He attempted to justify his actions, attributing them, in part, to cultural factors.

15     However, Mr. Clarke wrote a letter of apology to the victim's family for his behaviour. His family, friends and church support him. He completed a number of programs in prison, including one relating to prevention of violence. Still, CSC thought he presented a moderate-to-high risk for re-offending, and a moderate risk to public safety.

16     The Minister reviewed Mr. Clarke's entire record, including all of the submissions that had been made on his behalf. He found the offence of manslaughter to be serious, and expressed strong disapproval of Mr. Clarke's behaviour. Regarding Mr. Clarke's suggestion that cultural differences were at play, the Minister cited the sentencing judge's comments that Mr. Clarke had crossed the line from discipline to abuse "no matter what society you belong to". The victims of Mr. Clarke's crime - Ms. Swaray and her family - had suffered greatly.

17     The Minister concluded that Mr. Clarke continued to minimize the seriousness of his conduct, and that he showed a "grave" risk of re-offending.

·       (c) The Risk to Mr. Clarke in Liberia

18     The Minister acknowledged that the human rights situation in Liberia is poor. Mr. Clarke pointed out that he has nowhere to stay in Liberia and has lost contact with his family there.

19     Mr. Clarke and his family left Liberia in 1999 and moved to Ghana where they lived in a refugee camp. His father had been an opposition politician in Liberia, so the family feared political persecution, as well as ethnic persecution as members of the Mandingo minority.

20     However, things have gotten better in Liberia, including reforms in justice and security, human rights, healthcare and education. Still, challenges remain in policing, the administration of justice, and corrections. Overall, however, things have improved considerably since Mr. Clarke left Liberia. The Minister concluded that there was no serious possibility that Mr. Clarke would face persecution if removed from Canada.

·       (d) Humanitarian and Compassionate Considerations

21     The Minister noted that Mr. Clarke had achieved a Grade 12 education in Canada, and had been gainfully employed at the time of his offence. His father and stepmother are stalwart supporters.

22     Mr. Clarke has two daughters, one with Ms. Swaray and one with another woman. However, he does not maintain a relationship with these children or their mothers.

23     The Minister concluded that Mr. Clarke's degree of establishment in Canada was not substantial, and that his removal from Canada would not cause him significant hardship.

·       (e) Conclusion

24     The Minister concluded that Mr. Clarke was not at risk of persecution or serious mistreatment in Liberia. Because he represented a substantial danger to the Canadian public, he should be removed. The humanitarian and compassionate factors in his favour did not outweigh that danger. Therefore, Mr. Clarke could be removed from Canada without violating his rights under s 7 of the Charter.

V. Issue One - Was the Minister's analysis of the relevant evidence unreasonable?

25     Mr. Clarke argues that the Minister focussed too much on the salacious aspects of his crime and failed to address the real issue: the danger he posed to Canadians in the future. He had no previous convictions, yet the Minister improperly alluded to his "previous dealings with the law," namely, his earlier dropped charges. This caused the Minister to give too much weight to the danger Mr. Clarke posed to Canadians and too little weight to the humanitarian and compassionate grounds in his favour. In fact, while the Minister found that Mr. Clarke posed a "grave" risk of re-offending, the evidence did not support that conclusion. The fact that the offence was serious did not mean the risk of re-offending was grave.

26     As mentioned, the question is whether the person should be removed from Canada notwithstanding the risk of mistreatment he or she may face in the country of origin. In these cases, it can be assumed that there will be some risk to the person because he or she will have already established a case for refugee protection in Canada. Therefore, the Minister must consider the magnitude of that risk, as well as the hardships that removal would create, and balance those considerations against the risk to Canadians if the person were permitted to remain here. A person who has committed a serious crime and presents a danger to Canadians should be removed unless doing so would be disproportionately harsh considering the risks and hardships the person would face on removal.

27     The Minister found that Mr. Clarke would, in fact, not be at risk if he returned to Liberia. He need not have gone that far - the issue is the degree of risk not whether there is no risk. However, I can find no error in the Minister's analysis of the evidence relating to the risk to Mr. Clarke in Liberia.

28     Mr. Clarke points out that hundreds of thousands of people have been killed in Liberia, whereas he has only killed one Canadian. Therefore, on balance, he should be allowed to stay in Canada. He faces a greater risk in Liberia than he presents to Canada.

29     I do not find Mr. Clarke's submission on this point to be persuasive. First, the question is not what has happened in Liberia in the past. (The civil war ended in 2003.) The Minister must assess the current situation and decide whether Mr. Clarke faces a risk of serious mistreatment in the future. Here, the Minister concluded that the current risk to Mr. Clarke is low, and I see nothing unreasonable in the Minister's weighing of the relevant evidence on that issue or his conclusion.

30     Second, the question before the Minister cannot be answered by a comparative body count. The issue is the nature and magnitude of the risk Mr. Clarke faces on his return, as compared to the risk he presents to Canadians. I accept, as did the Minister, that Mr. Clarke may encounter difficulties in Liberia. But he has killed a child here, and presents a risk of doing so again. Those are the factors that must be balanced, not the number of victims of the civil war in Liberia as compared to the number of Mr. Clarke's victims.

31     Mr. Clarke also argues that the Minister was not entitled to take into account the previous charge against him relating to another assault on an infant because that charge was stayed. While the Minister accepted that he could not take account of charges that did not result in a conviction, he noted that Mr. Clarke had had "previous dealings with the law."

32     It is true that the Minister cannot take into account dropped charges. However, he can consider the facts giving rise to those charges because they are relevant to the danger the person poses to Canadians (Thuraisingam v Canada (Minister of Citizenship and Immigration), 2004 FC 607, at para 35). Here, while the Minister noted Mr. Clarke's "previous dealings with the law" - admittedly an indirect reference to the dropped charges - he relied on the facts and circumstances surrounding those allegations, not the mere fact that Mr. Clarke had been charged. While it might have been better not to use the phrase "previous dealings with the law," the Minister clearly relied on the underlying facts, strikingly similar to the circumstances giving rise to Mr. Clarke's conviction, as he was entitled to do. That evidence was relevant to the issue of danger to Canadians.

33     Regarding the Minister's use of the word "grave" to describe Mr. Clarke's likelihood of re-offending, I note that the CSC's assessment used the words "moderate-to-high". The other evidence showed that Mr. Clarke had beaten a child before, lacked remorse, minimized the severity of his crime, and failed to abide by bail conditions. In the circumstances, I cannot conclude that the Minister's use of the term "grave" to describe Mr. Clark's likelihood of committing another serious crime was out of keeping with that evidence.

34     Finally, Mr. Clarke contends that the Minister gave too little consideration to the humanitarian and compassionate consequences of his removal. In particular, the Minister did not take into account the impact on Mr. Clarke's family.

35     The Minister considered a letter from Mr. Clarke stating that his father and stepmother were wonderful parents. The Minister also mentioned the other family members - Mr. Clarke's two sisters and brother. The only other evidence, which the Minister did not cite, was a letter from Mr. Clarke's father in which he described Mr. Clarke's efforts at rehabilitation, and mentioned his two Canadian-born children.

36     The evidence before the Minister of humanitarian and compassionate considerations in Mr. Clarke's favour was obviously scant. In the circumstances, I cannot fault the Minister's analysis of that evidence. The Minister cited the main evidence. His failure to mention the letter from Mr. Clarke's father was inconsequential in the circumstances.

37     Overall, therefore, I cannot conclude that the Minister's analysis of the relevant factors - risk, danger, and hardship - was unreasonable given the evidence before him. His conclusion fell within the range of defensible outcomes based on the facts and the law.

·       VI. Issue Two - Did the Minister treat Mr. Clarke unfairly by relying on documents not disclosed to him?

38     Mr. Clarke submits that the Minister relied on two documents of which he was unaware. The first was a "Section 44(1) Highlights Report". The second was a "CBSA A44 Narrative Report".

39     In fact, it appears, and Mr. Clarke concedes, that the two documents are the same, but referred to by different titles. Further, the document is contained in the Certified Tribunal Record, as well as the Applicant's Record. Therefore, there appears to have been no lack of disclosure, and no unfairness to Mr. Clarke.

·       VII. onclusion and Disposition

40     I find that the Minister's decision was not unreasonable and that it was not arrived at unfairly. The Minister considered the relevant evidence and the appropriate factors and rendered a defensible decision. In doing so, he did not rely on evidence undisclosed to Mr. Clarke. Therefore, I must dismiss this application for judicial review.

41     Mr. Clarke had sought an extension of time to file his application for leave and judicial review, and no express order has previously been issued in respect of that request. In the circumstances. I will grant the extension of time.

42     Mr. Clarke proposed the following questions for certification:

·       1. Does a Minister's delegate who issues a danger opinion under Immigration and Refugee Protection Act section 115(2) breach the duty not to consider dropped charges by taking into account the fact that the person concerned had previous dealings with the law? 

·       2. Is a Minister's delegate who issues a danger opinion under Immigration and Refugee Protection Act section 115(2) entitled to make a finding of a grave risk of reoffending when there is no such finding by any of the authors of the correctional reports or the sentencing judge? 

·       3. Should a Minister's delegate, when considering a danger opinion under Immigration and Refugee Protection Act section 115(2), treat the risk to the person concerned abroad if the person is removed the same as or differently from the risk to Canada if the person is allowed to stay? 

·       4. Does a Minister's delegate who issues a danger opinion under Immigration and Refugee Protection Act section 115(2) have a duty to consider explicitly the hardship to the family of the person concerned on removal where the evidence is that the family is close knit and mutually supportive? 

·       5. Is the duty of fairness breached by non-disclosure to the applicant of a document the Canada Border Services Agency considered when deciding whether to seek a danger opinion from the Minister of Citizenship and Immigration under Immigration and Refugee Protection Act 115(2) if that document was not considered by the Minister's delegate in issuing the danger opinion? 

43     In my view, none of these questions should be certified. Question 1 does not arise in view of my conclusion that the Minister considered the facts and circumstances surrounding the dropped charge, not the charge per se. Question 2 need not be stated given that the Minister's conclusion was supported by the evidence. Question 3 relates to the balancing of risks, an exercise that is well-established in the case law. This is not a case in which Question 4 should be stated because there was little evidence of hardship to the family before the Minister. Because there was no lack of disclosure, Question 5 does not arise.

JUDGMENT

THIS COURT'S JUDGMENT is that:

·       1. The request for an extension of time is granted; 

·       2. The application for judicial review is dismissed; and 

·       3. No serious question of general importance will be stated. 

O'REILLY J.

* * * * *

Annex

Immigration and Refugee Protection Act [IRPA], SC 2001, c 27

Principle of Non-refoulement

115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

·       (2) 

Subsection (1) does not apply in the case of a person 

·       (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Delegate, a danger to the public in Canada; 

Canadian Charter of Rights and Freedoms

PART I OF THE CONSTITUTION ACT, 1982

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

* * *

Loi sur l'immigration et la protection des réfugiés, LC 2001, ch 27

Principe du non-refoulement

115. (1) Ne peut être renvoyée dans un pays où elle risque la persécution du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques, la torture ou des traitements ou peines cruels et inusités, la personne protégée ou la personne dont il est statué que la qualité de réfugié lui a été reconnue par un autre pays vers lequel elle peut être renvoyée.

·       (2) 

Le paragraphe (1) ne s'applique pas à l'interdit de territoire: 

·       a) pour grande criminalité qui, selon le ministre, constitue un danger pour le public au Canada; 

Charte canadienne des droits et libertés

PARTIE I DE LA LOI CONSTITUTIONNELLE DE 1982

Vie, liberté et sécurité

7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.

RELIANCE ON FRIENDS CAN BE COSTLY: WORK PERMIT REFUSED DUE TO PAYMENT ERROR

The case below highlights why applicants need professional assistance and should never ask friends to do things for them. Something that can be viewed as trivial can have disastrous consequences, as in the case below. While the result may seem harsh, the Federal Court is bound by the principles governing judicial review and is limited in its ability to interfere with a decision arrived at correctly by the processing centre.

Vavachan v. Canada (Minister of Citizenship and Immigration)




Between

Tony Vavachan, Applicant, and

The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 960

2012 FC 847



Docket IMM-9675-11



Federal Court

Edmonton, Alberta



Zinn J.



Heard: July 3, 2012.

Judgment: July 4, 2012.

(9 paras.)

________________________________________
REASONS FOR JUDGMENT AND JUDGMENT

1 ZINN J.:-- Regrettably for Mr. Vavachan, the failure to inform Citizenship and Immigration Canada (CIC) that the $300.00 processing fee transmitted by him and his friend was intended to be applied to both their applications, resulted in the second application to be reviewed, Mr. Vavachan's, being rejected for failure to pay the required fee. By the time he was informed of this failure and its consequences, it was too late for him to apply for restoration of his temporary resident status and work permit.

2 Mr. Vavachan is a citizen of India. He came to Canada on August 28, 2010, with the authority to remain until July 30, 2011. He was enrolled in a one-year study program and received his transcript attesting that he completed all the courses required on June 17, 2011.

3 On June 19, 2011, he and his similarly situated friend, Mr. Patel, applied for a work visa. Instead of each paying CIC the $150.00 registration fee separately, they paid $300.00, effectively covering both of their fees. While this procedure is permissible, they failed to indicate that this was intended to cover both and when Mr. Patel's application was processed the overpayment was returned to him.

4 Mr. Vavachan's first work permit application was rejected on September 8, 2011, because it was missing the $150.00 fee - Mr. Patel's overpayment had been refunded the week prior.

5 On October 26, 2011, Mr. Vavachan submitted a second application. Although this application was complete and included the required fee, it was refused because it was mailed after the 90 day period prescribed at section 182 of the Immigration and Refugee Protection Regulations, SOR/2002-227. The Regulations require that the application be made within 90 days of the applicant being notified that he or she has successfully completed the requirements for their course of study. Mr. Vavachan received the transcript of his marks on June 17, 2011; accordingly his application was out of time.

6 I am unable to agree with applicant's submission that the officer failed to assess his situation or that the cause of his misfortune was CIC's delay in processing his first application. Those who send payment to the government with no indication as to how or to whom that payment is to be credited are the authors of their own misfortune if the payment is not credited as they wish. That is what occurred here.

7 Although the Court agrees with Mr. Vavachan that he might have had time within the 90 day period to resubmit the application had the initial application been processed more quickly, there is no evidence that the processing was done in other than the usual manner or that the respondent can be faulted for the time taken.

8 In the circumstances before the Court, the officer's decision was not only reasonable, it was correct.

9 For these reasons this application must be dismissed. Neither party proposed a question for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that the application is dismissed and no question is certified.

ZINN J.

COSTS ORDERED IN CITIZENSHIP CASE

It is quite unusual for the Federal Court to order costs in immigration or citizneship cases. It is difficult to discern why costs were awarded against the applicant in this case, although it appears that the court may have found the evidence heavily weighted against the applicant.

Baig v. Canada (Minister of Citizenship and Immigration

Between Ghazanfar Baig, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 963

2012 FC 858

Docket T-1811-11

Federal Court
Ottawa, Ontario

Rennie J.

Heard: May 30, 2012.
Judgment: July 5, 2012.

(21 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     RENNIE J.:-- The applicant appeals, pursuant to section 14(5) of the Citizenship Act, RSC, 1985, c C-29 (Citizenship Act) the decision of Citizenship Judge K. Mohan (Judge), dated September 7, 2011, rejecting the applicant's application for a grant of Canadian citizenship pursuant to section 5(1) of the Citizenship Act. The appeal being brought pursuant to subsection 14(5) of the Citizenship Act is governed by the Federal Courts Rules (SOR/98-106) (Rules) pertaining to applications; hence the parties status' as applicant and respondent. The Citizenship Act does not provide for further appeals following a disposition by this Court. For the reasons that follow the appeal is dismissed.

Facts

2     The applicant, Ghazanfar Baig, is a citizen of Pakistan. He and his family were granted permanent residence in Canada on August 20, 2004. His wife and three children are all now Canadian citizens.

3     The applicant applied for Canadian citizenship on April 8, 2008 and had his citizenship hearing on July 18, 2011.

4     In his decision dated September 7, 2011, the Judge applied the residence test articulated by Justice Muldoon in Re Pourghasemi, [1993] FCJ No 232 and endorsed in Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640. Under that test, the applicant met the residence requirement of the Citizenship Act if he established that he had been physically present in Canada for 1095 days in the relevant four-year period. The Judge determined, correctly, that the relevant period in this case was between August 20, 2004, and April 8, 2008.

5     At the applicant's hearing the Judge notified the applicant that he was not satisfied that the applicant met the residence requirement and afforded him an opportunity to provide additional documentation in support of his application.

6     The Judge found that there were many gaps during the relevant period in which it was difficult to determine whether the applicant was present in Canada. The Judge found insufficient evidence to substantiate that the applicant worked as a self-employed consultant in Canada during that period. The Judge noted that the applicant's reported income on his tax returns for 2004-2007 was very low considering he was supporting a family of five. The Judge also found that the applicant had not provided a clear audit trail of his revenues and expenses, as requested.

7     The Judge noted that the applicant provided health records for the relevant period, but found that they revealed few medical appointments in 2005, and none in 2006. While there were several visits from 2007 onwards, these records did not establish that the applicant was physically present for 2005 and 2006. He noted that the onus was on an applicant to establish that he or she fulfills the requirements for citizenship and concluded that the applicant had not established, on a balance of probabilities, that he had been physically present in Canada for the required 1095 days.

8     Finally, in accordance with section 5(4) of the Citizenship Act, the Judge had considered whether to make a favourable recommendation for a discretionary grant of citizenship. He decided not to make a favourable recommendation because there were inadequate circumstances of special and unusual hardship, or services of an exceptional value to Canada to warrant such a recommendation. The application was therefore not approved.

Standard of Review/Issue

9     The parties frame the issues as follows:

·       i. 

Was the Judge's decision reasonable? 

·       ii. 

Were the Judge's reasons adequate? 

10     The parties agree that the Judge's findings of fact are to be assessed on a standard of reasonableness: Canada (Minister of Citizenship and Immigration) v Al-Showaiter, 2012 FC 12. In Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, the Supreme Court of Canada held that the adequacy of the reasons is not a standalone ground of review or a matter of procedural fairness, but rather, forms part of the reasonableness analysis.

Analysis

11     The applicant argues that since the Judge applied the physical presence test as articulated in Pourghasemi he should have examined the applicant's passport thoroughly to determine if the applicant had been physically present for the requisite number of days. However, the Judge noted that the applicant had an electronic Pakistan non-resident Card (NICOP), and therefore the lack of stamps in his passport would not necessarily establish that he had not travelled during the relevant period.

12     The applicant also submits that the Judge failed to ask him to submit his travel records from Canada Border Services Agency; however, the applicant has presented no authority that suggests the Judge is obligated to make this request. Such an obligation appears contrary to the onus on the applicant to establish he has met all the requirements for citizenship as stated in Maharatnam v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 405 (TD), para 5.

13     Although the Judge's notes indicate that the applicant holds a Pakistani passport no mention of it is made in the decision, other than:

·       You are a Citizen of the [sic] Pakistan and you also have the Pakistani electronic non-Resident Card, NICOP where the entry-exit to Pakistan can be recorded instead of stamps on the passport. I also understand that you own or owned properties in Pakistan. 

14     It is axiomatic that the onus rests on the applicant to establish on a balance of probabilities that he or she meets the residency requirements for citizenship. The thrust of the applicant's argument is that the Judge, having given the applicant a further opportunity to produce documents, was obligated to advise the applicant of his specific concerns as to the evidence of residency presented by the applicant. I do not agree. In essence, the applicant seeks to shift the evidentiary burden back to the Judge, whereas it rest squarely with the applicant.

15     The applicant further argues that the Judge failed to examine the applicant's passport. It is noteworthy that there is no copy of the passport in the record and the applicant made no effort to include his passport in the record. The only reasonable inference to be drawn from the fact that the passport was not included was that, given the applicant's use of the electronic NICOP is that it was not stamped and thus of no probative value. This was a conclusion reasonably open to the Judge.

16     The applicant contends that the passport was critical evidence which ought to have been included in the record. As noted, I reject this argument as it was open to the applicant to provide copies of the evidence said to be missing and of significant probative value. Secondly, the reason why there is no analysis of the passport is clear on the face of the record.

17     The balance of the applicant's submissions are that the Judge failed to properly consider the evidence presented and that he failed to give adequate reasons for his conclusions. Most of these arguments relate to the applicant's alleged work in Canada. The applicant argues that the Judge speculated that there were concerns about the source of the applicant's income and whether he was working in Canada during the relevant period. The applicant claims he presented evidence on these points that was unreasonably ignored, and also that the Judge relied on irrelevant evidence.

18     Contrary to the applicant's submissions, the Judge did not express concerns about the applicant's work history without justification. The Judge noted that the applicant's reported income did not correspond with the amounts in his bank accounts, nor with the amount necessary to support a family of five with multiple children enrolled in post-secondary education. Furthermore, the Judge's notes from his interview of the applicant reveal that the applicant acknowledged that all his business was conducted in the Middle East. Based on this evidence alone the Judge reasonably concluded that the applicant had failed to establish he was living and working in Canada for a sufficient number of days during the relevant period.

19     The applicant asserts it was erroneous for the Judge to consider the applicant's purchase of rental properties, since these purchases occurred after the relevant period. However, the Judge's comments about these properties, when read in context, did not give rise to an error. The Judge referred to the purchase of the rental properties in response to the applicant's claim that he was supporting his family in part through savings he brought with him to Canada:

·       You mentioned that you had brought some money from overseas. You maintain a US dollar account in Canada. However, during the hearing you had also mentioned that you had bought three properties in Canada and they were rented out. Looking at the information you provided, it looks like these overseas funds were used to purchase these properties... 

20     Thus, this part of the analysis relates to the finding that the applicant's reported income from work in Canada was insufficient to support his family. The Judge found that the applicant also could not have been supporting his family with the savings brought from overseas because those funds were used to purchase three properties. Thus, these purchases were relevant because they undermined the applicant's evidence about how he was supporting his family during the relevant period.

21     I find that the Judge's decision was reasonable and, furthermore, that his reasons amply justify his conclusions. The appeal is therefore dismissed.

JUDGMENT

THIS COURT'S JUDGMENT is that the appeal is hereby dismissed. Costs to the respondent in the amount of $250.00.

SKILLED WORKER MUST PROVIDE EVIDENCE OF RELATIVE IN CANADA

Applicants must present all releavant evidence as officers are not under a duty to advise the applicant that more evidence is required, unless they have a concern about specific facts or evidence. See this decision:

Singh v. Canada (Minister of Citizenship and Immigration)

Between Gurinder Singh, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 962

2012 FC 855

Docket IMM-3207-11

 Federal Court
Toronto, Ontario

O'Keefe J.

Heard: January 16, 2012.
Judgment: July 5, 2012.

(36 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     O'KEEFE J.:-- This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of an immigration section officer of the Nova Scotia Case Processing Centre (the officer), dated April 29, 2011, wherein the applicant was denied permanent residence under the federal skilled worker class of subsection 12(2) of the Act and subsection 76(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). This decision was based on the officer's finding that the applicant did not meet the minimum point requirement to qualify for immigration to Canada.

2     The applicant requests that the officer's decision be quashed and the matter be remitted for redetermination by a different officer.

Background

3     The applicant, Gurinder Singh, is a citizen of India. He currently resides in Australia.

4     The applicant submitted an application for permanent residence under the federal skilled worker class as a cook. His wife, Amanpreet Kaur, was included as a dependent.

5     As part of his application, the applicant indicated that Ajit Singh Nagra and Nasib Kaur Nagra, his maternal grandparents, were permanent residents in Canada and that Balwinder Singh Nagra, his maternal uncle, was a Canadian citizen. All three allegedly live together in Surrey, British Columbia. In support, the applicant filed the following documents:

·       1. 

Affidavit from Ajit Singh Nagra, Nasib Kaur Nagra and Balwinder Singh Nagra attesting to their relationship with the applicant and their residency in Canada; 

·       2. 

Permanent residence cards for Ajit Singh Nagra and Nasib Kaur Nagra; and 

·       3. 

Canadian passport for Balwinder Singh Nagra. 

Officer's Decision

6     In a letter dated April 29, 2011, the officer denied the applicant's application. The Global Case Management System (GCMS) notes that form part of the officer's decision explain the reasons for the denial.

7     The officer assessed a total of 62 points for the applicant's application for permanent residence:

	Age:	10 points
	Education:	15 points
	Official language proficiency:	16 points
	Arrangement employment:	0 points
	Experience:	21 points
	Adaptability:	0 points

8     The officer explained why no points were awarded for adaptability as follows:

·       No points have been assigned for a relative in Canada as insufficient evidence is on file to satisfy me of your relationship to Balwinder Singh Nagra, Ajit Singh Nagra or Nasib Kaur Nagra. No documents (such as birth certificates) were provided to link Balwinder Singh Nagra, Ajit Singh Nagra or Nasib Kaur Nagra with either of your parents. In addition, there is insufficient evidence on file to satisfy me of your relative residing in Canada. 

9     As the applicant's total assessed points was below the minimum statutory requirement of 67 points, the officer found that the applicant had failed to prove that he would be able to become economically established in Canada. His application for permanent residence under the skilled worker class was therefore denied.

Issues

10     The applicant submits the following points at issue:

·       1. 

What is the standard of review? 

·       2. 

Is the decision unreasonable because the applicant's evidence that he had family in Canada was disregarded without explanation by the officer? 

·       3. 

Is the decision unfair because it is deficient? 

·       4. 

Is the decision unfair because the officer should have provided the applicant with an opportunity to address his concerns? 

·       5. 

Should costs be awarded to the applicant? 

11     I would rephrase the issues as follows:

·       1. 

What is the appropriate standard of review? 

·       2. 

Did the officer deny the applicant procedural fairness? 

Applicant's Written Submissions

12     The applicant submits that the correctness standard applies to issues of procedural fairness whereas the reasonableness standard applies to the review of the officer's consideration of the evidence.

13     The applicant submits that it is a reviewable error for an officer to disregard evidence without providing clear reasons for so doing. In this case, the officer erred in not explaining why the evidence that the applicant submitted for his relatives in Canada was insufficient. This error rendered his decision unreasonable.

14     The applicant submits that the evidence he did file (permanent residence cards, passport and affidavit) was sufficient to award him five points under the adaptability factor, as per subparagraphs 83(5)(a)(ii) and (v) of the Act. Had these five points been awarded, his score would have reached the required 67 points.

15     Further, the applicant submits that it was not open to the officer to reject his evidence without further inquiries. If the officer had concerns about the veracity or truth of the evidence, he should have interviewed the applicant or at least notified him by letter and provided him with an opportunity to respond.

16     The applicant also submits that the officer's errors were so egregious that they warrant the awarding of costs. The deficient reasons indicate that the officer treated the decision making process in a cavalier manner.

Respondent's Written Submissions

17     The respondent submits that an officer's decision on a skilled worker application attracts deference. The awarding of points is primarily a factual determination that attracts significant deference. Conversely, issues of procedural fairness are reviewable on a correctness standard.

18     The applicant bears the onus of providing all relevant information and documentation required to meet the statutory requirements of the Act. Contrary to the applicant's submissions, the respondent submits that to benefit under the adaptability category, applicants bear the onus of demonstrating that qualifying relatives reside in Canada. This onus does not shift to the officer. The officer is not obliged to gather or seek additional evidence or to make further inquiries.

19     The respondent submits that the passports and permanent residence cards submitted by the applicant do not show the addresses of these individuals nor their relation to the applicant or his spouse. Further, no documentary evidence was attached to the affidavit to objectively prove the information contained therein. The officer was not obliged to accept the affidavit as the probative value of affidavits submitted by interested parties is limited.

20     The respondent also submits that the applicant has not provided birth certificates or other documentation to link Balwinder Singh Nagra, Ajit Singh Nagra or Nasib Kaur Nagra with either of his parents. The document checklist that the applicant submitted with his application specifically instructed him to provide this proof. Not only did he not provide this proof, but he also failed to provide a letter indicating why he was unable to do so. The officer clearly indicated in his decision that he refused to award these points due to the lack of a birth certificate or other document showing that the applicant was related to the stated individuals. The respondent also notes that the applicant did not provide any documentary evidence that these individuals reside in Canada such as leases, mortgages, tax forms or pay stubs.

21     In summary, the respondent submits that the officer's factual conclusion was reasonable. The applicant has also not shown that any special reasons exist to warrant this Court awarding costs.

Analysis and Decision

Issue 1

What is the appropriate standard of review?

22     Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paragraph 57).

23     An officer's determination of eligibility for permanent residence under the federal skilled worker class involves findings of fact and law and is reviewable on a standard of reasonableness (see Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283, [2009] FCJ No 1643 at paragraph 22; and Khan v Canada (Minister of Citizenship and Immigration), 2009 FC 302, [2009] FCJ No 676 at paragraph 9).

24     Conversely, the appropriate standard of review for issues of procedural fairness and natural justice is correctness (see Malik above, at paragraph 23; Khan above, at paragraph 11; and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] SCJ No 12 at paragraph 43). No deference is owed to officers on this issue (see Dunsmuir above, at paragraph 50).

Issue 2

Did the officer deny the applicant procedural fairness?

25     The applicant raises two procedural fairness issues in this application:

·       1. 

The officer erred by not explaining why the evidence submitted on his Canadian relatives was insufficient; and 

·       2. 

The officer erred by rejecting his evidence without making further inquiries. 

26     Before engaging in the analysis on these issues, it is notable that applicants for permanent residence under the federal skilled worker class are not entitled to strong procedural safeguards. As described by Mr. Justice Robert Mainville in Malik above, at paragraph 26:

·       [...] The nature of the regulatory scheme, the role of the decision of the visa officer in the overall scheme, and the choice of procedure made do not therefore suggest the need for strong procedural safeguards beyond what is already provided for in the legislation, save the procedural safeguard concerning proper information to applicants as to the criteria used and the documentation required to properly assess their applications. Though the decision to grant or not an application for permanent residence under the federal skilled worker class is obviously important to the individual affected, it is not such as to affect the fundamental freedoms or other fundamental rights of an applicant, such as a criminal proceeding or, in the immigration context, a deportation proceeding might have. In addition, no undertakings are made to applicants as to an interview or as to additional notification if documentation is missing or insufficient, thus considerably limiting expectations of applicants in such matters. 

27     This constraint on procedural safeguards is in place to ensure the efficiency and equity of the system to all applicants (see Singh v Canada (Minister of Citizenship and Immigration), 2011 FC 956, [2011] FCJ No 1172 at paragraph 14).

28     Turning to the applicant's first issue, the officer did provide some explanation in the decision for his finding that the evidence was insufficient:

·       No documents (such as birth certificates) were provided to link Balwinder Singh Nagra, Ajit Singh Nagra or Nasib Kaur Nagra with either of your parents. 

29     Further, as stated by the respondent, the probative value of affidavits from interested parties is limited. As Mr. Justice Russel Zinn explained in Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067, [2008] FCJ No 1308 (at paragraph 27):

·       Evidence tendered by a witness with a personal interest in the matter may also be examined for its weight before considering its credibility because typically this sort of evidence requires corroboration if it is to have probative value. If there is no corroboration, then it may be unnecessary to assess its credibility as its weight will not meet the legal burden of proving the fact on the balance of probabilities. When the trier of fact assesses the evidence in this manner he or she is not making a determination based on the credibility of the person providing the evidence; rather, the trier of fact is simply saying the evidence that has been tendered does not have sufficient probative value, either on its own or coupled with the other tendered evidence, to establish on the balance of probability, the fact for which it has been tendered. [...] 

30     As the affidavit here was unsupported by corroborating evidence, the only evidence on the applicant's relatives in Canada were the permanent residence cards and the Canadian passport. These did not show that the applicant or his wife were related to these individuals. Further, in the document checklist that the applicant filed with his application, the first point under the section titled "Proof of relationship in Canada" clearly states: "Proof of relationship to your close relative in Canada, such as birth, marriage or adoption certificates". As noted by the officer, none of this information was provided.

31     Bearing in mind the lack of strong procedural safeguard rights granted to permanent residence applicants under the federal skilled worker class, I do not find that the officer erred by not explaining why the evidence that the applicant submitted for his relatives in Canada was insufficient.

32     Turning to the second issue, the applicant submits that it was not open to the officer to reject his evidence without making further inquiries. However, it is established jurisprudence that an officer is under no duty to inform the applicant about any concerns regarding the application that arise directly from the requirements of the legislation and that do not pertain to the veracity of the documents (see Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2006] FCJ No 1597 at paragraphs 23 and 24). The onus is always on the applicant to satisfy the officer of all parts of his application. The officer is under no obligation to ask for additional information where the applicant's material is insufficient (see Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 786, [2009] FCJ No 910 at paragraph 8; and Veryamani v Canada (Minister of Citizenship and Immigration), 2010 FC 1268, [2010] FCJ No 1668 at paragraph 36).

33     In this case, the officer found that the applicant's application was insufficient with respect to information on his stated Canadian relatives. To be awarded points for adaptability under the Act and the Regulations, adequate supporting information must be submitted. The applicant did have prior notice of the application requirements by way of the document checklist that he filled in and submitted with his permanent residence application. In addition, contrary to the applicant's submissions, there was no suggestion that the credibility, accuracy or genuine nature of the information was of concern to the officer. Therefore, according to the established jurisprudence, the officer was not required to ask for additional information of the applicant and the applicant was not denied procedural fairness.

34     In summary, I find the applicant has failed to show any reviewable error. The officer was under no obligation to explain his findings in greater detail or to request more information from the applicant. As such, I would dismiss this judicial review.

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

36     The applicant requested an award of costs, however, I am not prepared to award costs as I am of the view that special reasons do not exist in this case.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.

O'KEEFE J.