HUSBAND'S REFUSAL TO PERFORM MEDICAL RESULTS IN VSIA REFUSAL

This is not uncommon: a spouse abroad becomes lax in performing medical exams, ignores deadlines, and then the applicant argues that there should be more chances to comply. the court does not appear to be pleased, as per its conclusion. The lesson from the case: do not delay, respect deadlines, comply with requests promptly!

Dacuma v. Canada (Minister of Citizenship and Immigration)

Between Maribel Cabucana Dacuma, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1455

2012 FC 1342

Docket IMM-1876-12

 Federal Court
Toronto, Ontario

Zinn J.

Heard: November 1, 2012.
Judgment: November 21, 2012.

(21 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     ZINN J.:-- The applicant, Maribel Cabucana Dacuma, came to Canada from the Philippines in 2002 as a live-in caregiver. Prior to her arrival she started to live with Carlo Pangilinan Canlas whom she married on April 12, 2007. Ms. Dacuma has been a permanent resident of Canada since June 2005. In November 2008, Ms. Dacuma submitted a sponsorship application for her husband.

2     Delay in receiving certain information from Ms. Dacuma regarding her application resulted in the need for the medical examination Mr. Canlas underwent in October 2008 to be updated. On June 16, 2010, after Mr. Canlas was interviewed, medical instructions were mailed to him outlining this requirement.

3     Unfortunately for Ms. Dacuma, Mr. Canlas' subsequent inaction shows that he was not interested in submitting to another medical examination which was required in order that her sponsorship application be assessed.

4     On June 28, 2010, an officer phoned Mr. Canlas to follow up on the medical instructions. Mr. Canlas acknowledged receiving the June 16, 2010, letter and said that he would report for a medical examination the next day, but he did not.

5     On August 12, 2010, the officer phoned Mr. Canlas to inquire about his compliance with the medical instructions. Mr. Canlas said that he was scheduled to be examined on August 16, 2010, and that he did not attend an August 2, 2010, appointment because he was too busy.

6     On October 16, 2010, one of many inquiries into the applicant's sponsorship application was made by the constituency office of Ms. Dacuma's federal Member of Parliament, presumably at Ms. Dacuma's behest. The message from the constituency office stated that Mr. Canlas had attended his medical examination on August 16, 2010, and requested a status update on the file. After searching and concluding that no medical examination had been received, an officer followed up with Mr. Canlas' designated medical examiner to get to the bottom of the matter.

7     On November 25, 2010, St. Luke's Medical Cent er replied that it had no record of any examination of Mr. Canlas on August 16, 2010, but did confirm his previous October 2008 examination and a subsequent chest and pulmonary evaluation in April 2009.

8     On December 16, 2010, an officer phoned Mr. Canlas' landline, which was no longer active, and then his cell phone three times. There was no answer. The following exchange between the Board and Ms. Dacuma sheds light on why Mr. Canlas did not answer his phone:

 

·       Counsel for Respondent [...] They could never get a hold him, why? He never answered his phone. 

 

·       Mrs. Dacuma Yeah, because it shows there. 

 

·       Counsel for Respondent I'm sorry? 

 

·       Mrs. Dacuma Because when someone calls, he knows who is in the phone. 

 

·       Counsel for Respondent So, he didn't want to answer the visa officer's call. Okay. 

9     On December 22, 2010, the officer made one of many replies to the applicant's constituency office, explaining that no record of any examination had been received and that the designated medical examiner could not confirm having examined Mr. Canlas in August 2010.

10     On January 13, 2011, a final notice was sent to Mr. Canlas, giving him 45 days to comply with the medical instructions. As of March 8, 2011, no response had been received from Mr. Canlas. Notwithstanding, the officer did not immediately deny Mr. Canlas' application, as one might reasonably have expected him or her to do.

11     At around the same time, it appears that Ms. Dacuma attempted to take matters into her own hands. She travelled to Manila to physically accompany, one might say force, her husband to attend a medical examination. Unfortunately, when they attended together on March 25, 2011, the examiner would not accept a downloaded version of a certain form. Ms. Dacuma, highly motivated and intent on seeing her husband medically examined, picked up an original copy of this form from the Canadian Embassy in Manila on March 29, 2011. Regrettably for her, it appears that she had to return to Canada before her husband could attend the medical examination. She left it for him to do alone and again he failed to attend.

12     On May 17, 2011, an officer decided to verify if Mr. Canlas had actually followed through with the medical instructions. The following entry dated June 10, 2011, is from the CAIPS notes:

 

·       Called and spoke with sponsor on 26May11. Per notes abv, tried contacting subj thru numbers on file to ffup on meds of applicant. Was not able to speak with subj, called spr instead. Spoke w/ spr thru numbers on file. Asked spr about subj's meds. Spr seemed hesitant to answer. Asked spr again. Spr said that subj has not complied with meds yet. Asked spr if subj has plans to comply with meds. Spr requested that we just talk to subj thru [phone number]. Tried contacting subj, subj is not picking up and we will just talk to her instead. Ask spr again if subj plans on complying with the meds. Spr asked if we could send subj a letter advising such. Informed spr that we already sent a letter and that this is the third time that we will be following up on subj's meds. Asked spr again if subj plans on complying with meds. Spr said that subj felt that nothing was happening with his application and that subk seemed to be less interested. Spr added that subj found it tedious to do the re-meds. Asked spr if subj seems interested to comply with the meds. Spr said that subj will do the meds he's just too busy with work that is why he cant comply with the meds. Advised spr that the medical examination will only take one day and medical instructions were given to him in March. Spr reiterated that subj is busy with work. Advised spr that we will be noting all the information. Spr understood. 

13     The officer decided on June 10, 2011, to close Mr. Canlas' file and on July 19, 2011, sent the refusal letter. Ms. Dacuma appealed the officer's decision to the Immigration Division of the Immigration and Refugee Board.

14     The Board held a hearing on February 1, 2012, issuing written reasons the following day. Ms. Dacuma was not represented. Ms. Dacuma was seeking humanitarian and compassionate ("H&C") relief under section 67(1)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27. The Board first noted that there were no children whose interests had to be considered and it then summarized the events, as set out above, that led to the officer's refusal. The Board noted that the failure to provide the medical examination information had been Mr. Canlas' fault completely. It found that little evidence of hardship had been presented, and dismissed the appeal.

15     Ms. Dacuma submits that the Board "failed to observe the principle of natural justice, procedural fairness or other procedure that it was required by law to observe" in three respects: (1) It did not take into account that Mr. Canlas was in the midst of completing the retake medical exam; (2) it failed to consider that the initial delay, which caused the currency of the first medical examination to lapse, was caused by the officer; and (3) the officer was inflexible in providing more time for Mr. Canlas to "be able" to complete his examination. None of these submissions have merit.

16     The submission that the Board did not take into account that Mr. Canlas was "in the midst" of completing the retake medical exam relies on the correctness of a date noted by the Board - August 16, 2011 - despite the fact that Ms. Dacuma must clearly understand that the date was written in error. The date referred to in the decision is to the thwarted second examination which took place on March 25, 2011; a date before, not after, the sponsorship application was refused. In any case, this wrongly-copied date was not relied upon by the Board in its reasons. More importantly, nothing in the record shows that Mr. Canlas was "in the midst" of completing a second medical examination. On the contrary, the evidence was quite clear that Mr. Canlas could not be bothered to attend another medical examination. The only evidence the Board had was given by Ms. Dacuma at the hearing that her husband "now wants to do his medical."

17     It is simply not true that the initial delay and the lapsing of the medical information were caused by the officer. The record shows that Ms. Dacuma did not reply with the requested information as to the solemnization of the marriage for some time and it was this delay which resulted in the lapsing of the previous medical examination. Ms. Dacuma provided this information only in March 2010 after the officer had requested it initially on February 9, 2009, and followed up with subsequent reminders in June 2009, November 2009, and January 2010.

18     It is also simply untrue that the officer was inflexible in providing more time for Mr. Canlas to complete his medical examination. The Board noted at the hearing that it had "never seen a more compassionate visa officer." Based on my review of the file, the number of times the officer attempted to contact Mr. Canlas, and the numerous extensions of time provided to obtain the required medical information, I agree with the characterization made by respondent's counsel at the hearing that the officer "bent over backwards" for these applicants.

19     Also without merit is Ms. Dacuma's submission that the Board made an unreasonable finding that there were insufficient H&C factors to grant her appeal. The only factor in her favour was family reunification. However, her husband, in refusing to undergo the examination despite the indulgences shown him, appears less anxious to be reunited with his wife in Canada than she does.

20     The Board's conclusion that it "refuses to help the appellant and thereby the applicant when the applicant will not help himself and do that which is required to acquire permanent residence in Canada [emphasis added]" is unassailable. Unfortunately for Ms. Dacuma, her situation is directly attributable to nothing other than her husband's refusal to take the medical examination. Her application must be dismissed.

21     Neither party proposed a question for certification.

JUDGMENT

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

ZINN J.

MARRIAGE BY PROXY INVALID IN SPONSORSHIP CASE

A marriage by proxy did not meet the requirements of the law in the case below.

Cheikhna v. Canada (Minister of Citizenship and Immigration)

Between Kissima Cheikhna, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1256

[2012] A.C.F. no 1256

2012 FC 1135

Docket IMM-1757-12

 Federal Court
Montréal, Quebec

Noël J.

Heard: September 25, 2012.
Judgment: October 1, 2012.

(23 paras.)

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·       REASONS FOR JUDGMENT AND JUDGMENT

1     NOËL J.:-- This is an application for judicial review of a decision by the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board, dated January 31, 2012, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 ("IRPA"). The IAD dismissed the applicant's appeal from the refusal of the application for permanent residence made by Laalah Yacouba Tandia ("Ms. Tandia") as a member of the family class on the ground that the wedding was not solemnized in accordance with the requirements of Mauritanian law.

I. Facts

2     The applicant has been a permanent resident in Canada since April 20, 2005, and is originally from the Islamic Republic of Mauritania, like Ms. Tandia. The applicant met Ms. Tandia on December 6, 2006 in Mauritania and apparently asked her to marry him on December 25, 2006. The couple was married by proxy on October 17, 2007 in Kaédi, Mauritania, while Mr. Cheikhna was living in Canada.

3     The applicant made an application to sponsor Ms Tandia. On March 12, 2009, an immigration officer at the Canadian Embassy in Abidjan informed Ms. Tandia by letter that her application for permanent residence had been refused. The reason invoked was that the relationship between Mr. Cheikhna and Ms. Tandia was not genuine and had been entered into primarily for the purpose of acquiring status. The applicant appealed to the IAD.

4     During the hearing, the Minister filed a motion to add a second ground of refusal, namely, that the marriage did not comply with Mauritanian law. The IAD proceeded on the scheduled date, but granted additional time for the appellant to complete his documentary evidence. The appeal was dismissed in a decision rendered on January 31, 2012.

II. Decision under review

5     The IAD dismissed the applicant's appeal on the sole ground that couple's marriage failed to meet the requirements of Mauritanian law, which is contrary to section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("IRPR"). Having determined that the marriage was not valid under Mauritanian law, the IAD found that it was not necessary to deal with the second ground raised by the Minister, namely, the genuineness of the relationship between the spouses.

6     First, the IAD was not satisfied, based on the evidence adduced, that marriage by proxy is authorized under Mauritanian law. The IAD, relying on Quao v Canada (Minister of Citizenship and Immigration), 2000 CarswellNat 1682 at paragraph 31, 2000 CanLII 15954 (FC) (Quao), noted that the onus is on the appellant to show, on a balance of probabilities, that this form of celebrating a marriage is valid, because foreign law is not within the general knowledge of the panel.

7     Second, the IAD found that even if the marriage by proxy was legal, the appellant had not discharged his burden of proving that the marriage had in fact been solemnized in that manner. The appellant did not submit a proxy document in his evidence. Neither the excerpt from the registry of marriage certificates nor the document entitled "Acte de marriage" make any reference to the presence of a proxy representing Mr. Cheikhna at the time of the marriage or to a sworn statement by such a proxy. The IAD noted that appearance of authenticity of a document issued by a foreign state creates only a presumption of validity, which may be rebutted.

III. Applicant's submissions

8     The applicant argues that the IAD drew an unreasonable conclusion when it determined that the applicant had not discharged his burden of proof and had failed to demonstrate that marriage by proxy was legal in Mauritania and that the marriage had been solemnized according to the requirements of Mauritanian law.

9     The applicant submits that the IAD erred by initially determining that the marriage certificate did not contain all of the elements required by the Personal Status Code and by subsequently finding that, if there was a failure to comply, this would render the marriage invalid under Article 49 of the Personal Status Code, because the marriage certificate is not a constituent element of the marriage.

IV. Respondent's submissions

10     The respondent argues that the IAD made a reasonable finding by determining that the applicant had failed to demonstrate that his marriage was valid under Mauritanian law. The documentary evidence adduced by the applicant does not specifically deal with the issue of whether marriage by proxy is valid under Mauritanian law. The applicant presented no documentary evidence or clear expertise with respect to the legality of marriage by proxy under Mauritanian law, nor did he submit any proxy documents.

11     Furthermore, the IAD validly determined that the marriage was void, given that article 49 of the Personal Status Code stipulates that the absence of one of the constituent elements of a marriage, in this case the presence of one of the spouses, renders it void.

V. Issue

12     Did the IAD err in determining that the applicant's marriage by proxy failed to meet the requirements of Mauritanian law, which is contrary to section 2 of the IRPR?

VI. Standard of review

13     The issue is reviewable on a reasonableness standard, given that it is a question of mixed fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs 164-166, [2008] 1 SCR 190 (Dunsmuir)).

VII. Analysis

14     The panel's decision is reasonable and no intervention from this Court is warranted.

15     The applicant had the onus of demonstrating to the IAD, on a balance of probabilities, that (1) marriage by proxy is valid under Mauritanian law (Quao, supra, at paragraph 31); and (2) that a marriage by proxy had been validly solemnized.

16     The IAD validly concluded, in light of the relevant articles of the Personal Status Code and the documentary evidence adduced by the applicant regarding the law and customs of Mauritania, that nothing in the evidence gave any clear indication as to the legality of marriage by proxy in Mauritania.

17     The IAD further concluded that the solemnization of a marriage by proxy had not been proven in fact and that the marriage was therefore void. The panel relied on the lack of any reference to a proxy having represented the applicant in the "Acte de marriage" or in the excerpt from the registry of marriage certificates. Furthermore, the applicant did not submit a written proxy.

18     The confusion noted by the IAD in the "Acte de marriage" with respect to the role of Tidiane Mohamed Diagana, whose name appears as both witness and proxy at the time of the marriage, explains why the IAD assigned no probative value to this document and why it made an adverse finding with regard to the applicant because the certificate failed to meet the requirements of article 76 of the Personal Status Code.

19     This Court has previously found that the absence of a proxy document as well as the shortcomings in a marriage certificate are valid grounds on which a panel may base its decision not to assign any probative value to a marriage certificate (Ipala v Canada (Minister of Citizenship and Immigration) 2005 FC 472 at paragraph 29, 2005 CarswellNat 898).

20     As to the applicant's argument that irregularities in the marriage certificate should not render the marriage void, the IAD's finding was in fact that it was the lack of evidence of the solemnization of the marriage by proxy that rendered the marriage void and not the shortcomings in the marriage certificate, which was just one part of the evidence considered by the IAD.

21     Lastly, contrary to what the applicant claims, one does not have to find problems with an official document issued by a foreign state, such as a marriage certificate, to question its validity, because as the IAD noted, such documents benefit only from a presumption of validity (Ramalingam v Canada (Minister of Citizenship and Immigration), 1998 CanLII 7241 (FC) at paragraph 5, 1998 CarswellNat 35).

22     The IAD's determination that the applicant's marriage is void under Mauritanian law, and therefore under Canadian law, falls within a range of possible outcomes "which are defensible in respect of the facts and law" (Dunsmuir, supra, at paragraph 47); it is therefore reasonable.

23     The parties, although given the opportunity to do so, did not submit any questions for certification.

JUDGMENT

THE COURT ORDERS AND ADJUDGES that the application for judicial review is

UNCLEAR VISA OFFICER NOTES GIVE APPLICANT REPRIEVE

The case below is quite interesting, because throughout the reasons, the court seems to accept all the submissions of the respondent, and to reject the applicant, bu tin the end, the court concluded that the reasons for the refusal were not adequate.

Petrosyan v. Canada (Minister of Citizenship and Immigration)

Between Lusine Petrosyan, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1430

2012 FC 1319

Docket IMM-5929-11

 Federal Court
Toronto, Ontario

Rennie J.

Heard: September 26, 2012.
Judgment: November 13, 2012.

(31 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     RENNIE J.:-- The applicant seeks judicial review, pursuant to section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision by an Immigration Program Manager (the Officer) at the Canadian embassy in Moscow. For the reasons that follow the application is granted.

Background

2     In a decision, dated August 12, 2011, the Officer concluded that the applicant did not meet the requirements to be eligible for permanent resident status in Canada under the Federal Skilled Worker (FSW) class.

3     The applicant was born on July 8, 1980 and is a citizen of Armenia. On April 22, 2010 she applied for permanent residency under the FSW class based on having more than one year experience working in the job categories NOC 0611 (Telecommunications) and NOC 0213 (Computer and Information Systems managers). Only the latter is at issue in this review.

4     The applicant worked as Assistant of Vice-President at the National Academy of Sciences of the Republic of Armenia full time from 2003-2008. Her duties are described in the reference letter as dealing with many different information technology and computer science projects including artificial linguistics, managing teams of personnel, conducting research and preparing for academic conferences.

5     According to the Computer Assisted Immigration Processing System (CAIPS) notes, the applicant's application was assessed by a service delivery agent and deemed eligible for processing on January 18, 2010 on the basis that she met the requirements of NOC 0213. The application was assessed on August 9, 2010 and she was awarded 69 points, more than the minimum of 67. The agent who assessed the application noted concerns with the applicant's work experience as to why an assistant performed information systems manager duties.

6     Subsequently, a different agent noted on August 23, 2010 that the applicant has a bachelor's degree in linguistics and translation and no formal training in information systems management. This agent noted that her work book indicated she was a Second Level Specialist and Manager of Technology while her reference letter described her as an assistant of the vice president - the agent questioned the record and/or the accuracy of the translation of the reference letter.

7     The Officer interviewed the applicant on April 1, 2011. The applicant's account differs from the notes subsequently entered by the Officer into CAIPS on May 3, 2011. The applicant's evidence was that at the outset of the interview the Officer told her that her application would be refused because she did not have the technical education required in NOC 0213. The applicant claims the Officer carried on a conversation in French to a colleague during the interview and her notes in CAIPS were inaccurate or incomplete in several respects, especially regarding her job duties. The applicant believed after the interview that the only concern was with her technical education and was surprised when her rejection letter stated she did not have the work experience.

8     The Officer's notes include a rough outline of the conversation and a conclusion that the applicant did not have one year of experience. The applicant's rejection letter dated August 12, 2011 concluded that she did not have the required work experience.

9     The Officer filed an affidavit in this Court. The Officer responds to the claims made by the applicant in her affidavit, and states that her interview notes were complete and not altered in the month before they were entered into CAIPS. She also claims to not have commented on a lack of the applicant's education. Applicant's counsel cross-examined the Officer by teleconference on March 26, 2012 and filed the transcript in this Court.

Issues and Standard of Review

10     The central issues to be determined on this application are whether the Officer breached the duty of fairness by failing to notify the applicant of her concerns and, secondly, whether the Officer erred by determining that she was not eligible for FSW processing.

11     The assessment of a FSW application attracts the standard of reasonableness: Porfirio v Canada (Minister of Citizenship and Immigration), 2011 FC 794, 99; Bondoc v Canada (Minister of Citizenship and Immigration), 2008 FC 842.

Discussion

12     The applicant contended that the Officer took the education requirement of the NOC description into account, which is irrelevant based on Patel v Canada (Minister of Citizenship and Immigration), 2007 FC 441.

13     At the screening stage, the agent stated:

 

·       SHARE CONCERNS IDENTIFIED BY CASE ANALYST. PA HAS NEVER HAD ANY FORMAL TRAINING IN INFO SYSTEMS MANAGEMENT. HER BACKGROUND IS LINGUISTICS. TRANSLATOR/INTERPRETOR [sic] BY DIPLOMA. 

14     At the interview, the Officer told the applicant that she was going to refuse her application because she did not have any formal education in IT management. The CAIPS notes also show that the Officer asked about her formal education.

15     Counsel for the applicant sent a letter to the visa post outlining her position that educational requirements in NOC descriptions are not relevant, as per Patel. No response was received.

16     The applicant left the interview believing that the Officer was only concerned with her education, so submissions were made on that issue alone. The CAIPS notes were silent on the Officer's concerns that she did not meet the experience requirement. Applicant's counsel obtained the CAIPS notes but the Officer's notes were not entered into CAIPS for more than a month after the interview. The Applicant's counsel sent a letter requesting reasons to determine the Officer's concern but no reasons were provided.

17     There is no merit to the applicant's argument that her application was refused because of her education. She was refused because the Officer was not satisfied that she had the requisite experience. This is evident from the CAIPS notes, the Officer's affidavit and cross-examination.

18     The Officer did not advise the applicant that her application was being refused because of her education as alleged by the applicant. The Officer made her own assessment and did not rely on the concern of a previous agent included in the CAIPS notes. The applicant disputes the CAIPS notes regarding what was said at the interview. On these facts, more weight should be given to the interview notes than the applicant's affidavit: Sellappha v Canada (Minister of Citizenship and Immigration), 2011 FC 1379, paras 70-71. The Officer's affidavit attests that the CAIPS notes of the interview were made contemporaneously to the interview and were only entered into CAIPS at a later date.

19     The content of the duty of fairness owed to visa applicants is at the low end of the procedural fairness spectrum: Yao v Canada (Minister of Citizenship and Immigration), 2009 FC 114; Patel v Canada (Minister of Citizenship and Immigration), 2002 FCA 55. An officer is not required to give notice of a concern that an applicant lacks the work experience of a NOC because that concern arises directly from the IRPA's Regulations (Immigration and Refugee Protection Regulations (SOR/2002-227), nor is an applicant entitled to a running score of the application: Kamchibekov v Canada (Minister of Citizenship and Immigration), 2011 FC 1411; Shah v Canada (Minister of Citizenship and Immigration), 2011 FC 697; Gulati v Canada (Minister of Citizenship and Immigration), 2010 FC 451; Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283.

20     The applicant asks the Court to re-weigh the evidence as to whether or not she performed the NOC duties. This raises no reviewable error unless the decision is unreasonable. The burden is on applicants to satisfy officers that they meet the requirements of the IRPA for admission to Canada.

21     The Officer's assessment was reasonable. The CAIPS notes show that the applicant could not explain what her duties were. It is not disputed that the Officer gave the applicant the opportunity to explain her job duties.

22     The applicant properly argues that the jurisprudence is clear that FSW applicants are not required to exhibit every "main duty" described in a NOC, and that the wording of the duties is to be construed broadly: Chen and Hussain.

23     However, the applicant has not demonstrated that the Officer committed an error in this regard. Instead, as the respondent points out, the Officer found that the applicant could not explain what her duties were and therefore could not demonstrate that she fulfilled the NOC duties. The applicant bears the burden of demonstrating to the Officer's satisfaction, with requisite evidence, that they satisfy the requirements of being granted permanent residency: Baybazarov v Canada (Minister of Citizenship and Immigration), 2010 FC 665.

24     The respondent also points to the cross-examination of the Officer to demonstrate that the applicant was given full opportunity to respond and explain her job duties. Although the Officer stated that she did not ask the applicant directly and individually how she satisfied each main duty of the NOC, she came to her opinion based on the overall content of the interview. The applicant has not demonstrated that the Officer erred in this regard either.

25     It is well understood that the adequacy of reasons is not an independent ground of judicial review: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708. It is equally well recognized that to the extent that the duty to give reasons is informed by the nature of the right involved and the context, the duty is at the low end of the spectrum.

26     The reasons here meet, but just barely, the standard. They indicate concern about the relevance of her work experience. The CAIPS entry or August 23, 2010 notes:

 

·       (...) 

DUTIES ARE VAGUE AND VERSATILE AND BASED ON THIS LETTER, I AM NOT SATISFIED THAT PA PERFORMS SUFFICIENT NUMBER OF MAIN DUTIES IN NOC0213. 

INT IS REQUIRED FOR SEL/DEC WITH PA ONLY.

27     Following the interview, in Armenia, the Officer noted in CAIPS:

 

·       I explained the description of NOC 0213. Asked her to explain how she has the experience in this occupation. PA unable to explain. PA also claims one year experience as NOC 0611 Telecommunications. Once again no evidence to prove that she has fulfilled the duties of 0611. She could not respond except to say that she was in Information Systems Manager. 

28     The Officer did not ask the applicant whether she had experience in the relevant duties, rather, she came to her conclusion based on the overall content of the interview.

29     This is something which an officer is entitled to do. Vague and unhelpful answers do not shift the onus to the officer. Where, however, there is, on the face of the record, evidence which suggests that many of the duties had been performed, the officer needs to be more express as to the reasons for the conclusion. A simple statement "unable to explain" is insufficient, particularly where language is not an issue.

30     The case thus falls squarely within the principle expressed by Justice Mosley in Gulati v Canada (Citizenship and Immigration), 2010 FC 451:

 

·       It is impossible to assess the officer's conclusion, that the applicant had not performed a substantial number of the main duties of NOC 6212, without knowing which duties the officer thought had not been performed and why. 

 

·       According to Dunsmuir [v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190], at paragraph 47, the transparency and intelligibility of a decision are important elements of a reasonableness analysis. I conclude that their absence in the present decision render it unreasonable. 

31     An officer confronted with vague and unspecific answers is free to reject an application. It would be eminently reasonable to do so. Nor is it the officer's obligation to articulate the link between the experience and the duties of the NOC. That is the applicant's burden. However, a mere statement "unable to explain" does not satisfy the minimum requirements of providing reasons that satisfy the duty to provide minimal reasons.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is granted. The matter is referred back to a different visa officer for reconsideration. There is no question for certification.

RENNIE J.

DEPORTATION TO SOMALIA FOR ALBERTA CRIMINAL

See article below. I do no think he has helped himself by showing callous disregard for the rule of law and announcing that he will return illegally to Canada.

People make choices, and society needs to decide whom it allows to live in its midst, and how much grief it is prepared to tolerate from those whom it welcomes and engage in a career of crime. This is especially true in the cases of those who are granted refugee status and enjoy the generosity of society without having contributed in the past. They are given a rare opportunity to show their gratefulness by becoming god citizens, and yet, some chose to abuse the privilege. That is called  "biting the hand that feeds you". Canada should protect immigrants who come here to be free of the scourge of crime that existed in the countries they fled. Once a person shows it has not adapted to our society and imposes a cost on all of us by his disregard for the rule of law, it should not be our problem where he is sent. That is his problem.

Alberta man faces deportation to Somalia, where he has never lived - The Globe and Mail

COURT HEARS SUBMISSIONS IN SENTNECING OF CORRUPT IMMIGRATION OFFICIAL

This story is dragging on and on....

Actor Adam Beach lends support at convicted immigration officer’s sentencing hearing

 

By Andrew Seymour, Ottawa CitizenNovember 20, 2012

 

Diane Serré was convicted in June of fraud and breach of trust for her role in illegally fast-tracking immigration applications.

Photograph by: Mike Carroccetto, Ottawa Citizen

 

OTTAWA — An immigration manager convicted of fraud enlisted star power to help try to convince a judge she deserves house arrest, not jail, for accepting cash and gifts in exchange for fast-tracking applications.
Actor Adam Beach wrote a letter in support of Diane Serré, whose common-law husband is also the father of singer Keshia Chanté.
“Diane is one of the kindest, most sincere people I have ever met,” wrote the Golden Globe-nominated actor who appeared in the Hollywood movies Windtalkers, Flags of Our Fathers and Cowboys and Aliens as well as countless other films and television shows.
Beach, who paid for Serré’s court application to receive government funding to mount a defence, said he had known Serré for a decade. She has been a guest at his house numerous times, he said, and would often attend traditional Aboriginal Powwow celebrations with his family. The day she was arrested, Beach said he visited Serré’s house to perform a cleansing smudge ceremony in offer of spiritual support.
“Diane is a generous, kind-hearted soul who I am very grateful to have had in my life,” Beach wrote. “She is a wonderful example as a successful Aboriginal woman who is spiritually connected to her culture — not only to those who know her well, but to young Aboriginal women across Canada.”
Serré’s lawyer, Natasha Calvinho, is asking for a two-year conditional sentence to be served in the community, including 18 months of house arrest. That sentence should be followed by probation for three years, Calvinho argued, and could involve hundreds of hours of community service.
The Crown is expected to ask that Serré be sentenced to six years in a federal prison.
Serré was found guilty of more than two dozen fraud and breach of trust charges in June.
Ontario Superior Court Justice Catherine Aitken found that the 42-year-old teamed up with Dakik and his wife, who was also Serré’s esthetician, to form what the judge described as a “joint enterprise” to make money helping immigrants with their immigration files between 2003 and 2004.
Aitken said Dakik “let it be known in the Lebanese community” that he could make things happen for a price because he had someone on the inside at immigration. That person was Serré, Aitken found.
Dakik met with the clients before bringing their files to the attention of Serré, who used her influence as acting operations supervisor at Citizenship and Immigration Canada’s Catherine Street office to speed up the process.
Some of the people Serré helped were in Canada illegally while others were given work permits they wouldn’t otherwise be eligible to receive. One man had outstanding criminal charges in Halifax.
Serré also fast-tracked permanent resident applications, accomplishing in weeks what immigration employees testified might otherwise typically take months or years to be completed.
Exactly how much Serré received for her help isn’t clear, although Aitken’s decision outlined at least $25,900 in payments received by Dakik.

IMMIGRATION POOL TO BE CREATED

Ottawa to create skilled immigrant pool, provinces would select applicants based on labour needs - thestar.com

Ottawa to create skilled immigrant pool, provinces would select applicants based on labour needs

Published on Sunday November 18, 2012

Nicholas Keung Immigration Reporter

Immigration Minister Jason Kenney

Adrian Wyld/THE CANADIAN PRESS Immigration Minister Jason Kenney said discussions with the provinces about the future of immigration in Canada were "very fruitful."

Ottawa has reached a consensus with the provinces to establish a pool of skilled-worker candidates by the end of 2014 that will allow employers to cherry-pick potential immigrants to fill regional labour shortages. Immigration Minister Jason Kenney announced Friday he is committed to working with his provincial counterparts to implement the Expression of Interest (EOI) system, whereby employers could screen and assess a pool of applicants for immigration consideration. “We’ve had very fruitful discussions about the future of immigration in Canada,” Kenney said after the annual federal-provincial immigration conference in Toronto. All the provincial government representatives — except Quebec’s immigration minister, who was absent from the meeting — agreed the immigration system has to be fast and responsive to regional economic needs. However, Kenney was lukewarm to Ontario’s own immigration plan, unveiled earlier this month, that called for vastly increasing the number of skilled immigrants the province can hand-pick under the provincial nominee program — to 2,000 next year, and to 5,000 in 2014. Currently, Ontario receives only a 5 per cent share of the 20,000 provincial nominees accepted across Canada each year. “The concern for Ontario is that the number of immigrants coming to Canada is going down ... Moving forward, we do have to find a way to co-operate and collaborate to rectify the situation,” said Ontario Immigration Minister Michael Chan. “All provinces want their provincial nominee programs expanded because immigrants coming in are successful in getting jobs that match their skills.” To reduce backlogs in the federal skilled worker program, Ottawa allowed provinces to “mine” applicants in the queue earlier this year, and Ontario is expected to nominate as many as 700 candidates above its 1,000 annual quota. A source from Kenney’s office said the minister cannot commit to Ontario’s request to boost that quota because he has to balance all the 60-plus immigration programs, and any additional quota for the province has to come from somewhere else. Details of the EOI system, based on a system used in New Zealand and Australia, are not available. But Kenney said a formula will be developed to decide the “distribution of skilled immigrants across the country.” A recent provincial report found that Ontario has seen its share of immigrants to Canada drop by one-third, from 148,640 in 2001 to 99,000 in 2011. While 70 per cent of immigrants settling in other provinces belong to the “economic” class — skilled workers and investors, as opposed to refugees and people reuniting with family members — economic immigrants account for only 52 per cent of newcomers to Ontario.

ADULT CHILD NOT A DEPENDANT

A twenty-five year old applicant is not a dependnat for immigration purposes unless th exist sufficient humanitatian and compassioante grouds. See thsi decision:

Abedin v. Canada (Minister of Citizenship and Immigration)

Between Jabbar Mozayen Abedin, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1328

2012 FC 1197

Docket IMM-5666-11

 Federal Court
Toronto, Ontario

Pinard J.

Heard: September 6, 2012.
Judgment: October 17, 2012.

(19 paras.)

---

 

·       REASONS FOR JUDGMENT AND JUDGMENT

1     PINARD J.:-- On August 22, 2011, Jabbar Mozayen Abedin (the "applicant"), filed the present application for judicial review of the decision of David P.F. Lee, a member of the Immigration Appeal Division of the Immigration and Refugee Board of Canada (the "IAD"), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). The IAD refused part of the applicant's appeal of the visa officer's determination that the applicant and his family failed to comply with the residency requirements under the Act.

2     The applicant was born in Iran. He and his family became permanent residents of Canada when they landed on November 20, 2003. The applicant's wife, Taheri Masoumeh, their son, Armin Mozayen Abedin, who was 25 years old at the time of the IAD's decision, and their 15 year-old son Arvan Mozayen Abedin, were found by a visa officer to have failed to comply with their residency obligations under the Act. The officer further considered there to be insufficient humanitarian and compassionate reasons to allow them to retain their status as permanent residents. The applicant and his family appealed this decision, arguing that there were sufficient humanitarian and compassionate grounds to warrant special relief, considering the best interests of the children affected and challenging the legal validity of the decision.

3     The IAD allowed the appeal for all of the members of the applicant's family except for his adult son Armin, concluding that there were sufficient humanitarian and compassionate considerations to warrant special relief from the residency requirements. Thereby, Armin's appeal was dismissed. In the present application for judicial review, the applicant solely challenges the IAD's conclusion as to the dismissal of Armin's appeal.

4     The only real issue raised by the applicant in the present application for judicial review is whether the IAD erred by making factual determinations in a perverse or capricious manner, or without regard to the evidence before it.

5     This issue, being a question of fact, is to be reviewed based on a standard of reasonableness (see Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras 59-60; Ikhuiwu v. Minister of Citizenship and Immigration, 2008 FC 35 at paras 15-16). Therefore, this Court must determine whether the IAD's decision falls within the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]).

6     The applicant asserts that the IAD erred in finding that Armin was not a dependent. The applicant claims that although Armin may be of adult age, he meets the definition of dependent under the Act. Moreover, the IAD acknowledged that the Abedin family was "close knit", but ignored that Armin had been in Canada since 2009, taking courses, living with his mother and waiting for his father to return to start up a business here in Canada. In the applicant's opinion, the IAD ignored that Armin has been completely dependent on his family. Furthermore, the IAD failed to consider that in removing Armin to Iran, he will be subject to government control, as was the applicant, and that the government will use Armin to force the applicant to carry out other governmental projects in Iran.

7     The applicant emphasizes that Armin was allowed to return to Canada as a returning resident and has been in Canada since 2010. Moreover, Armin meets the definition of "dependent child" under section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations") which reads:

 

·       2. The definitions in this section apply in these Regulations. 

 

·       "dependent child", in respect of a parent, means a child who 

 

·       (a) has one of the following relationships with the parent, namely, 

 

·       (i) 

is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or 

·       (ii) 

is the adopted child of the parent; and 

 

·       (b) is in one of the following situations of dependency, namely, 

 

·       (i) 

is less than 22 years of age and not a spouse or common-law partner, 

·       (ii) 

has depended substantially on the financial support of the parent since before the age of 22 - or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner - and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student 

 

·       (A) 

continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and 

·       (B) 

actively pursuing a course of academic, professional or vocational training on a full-time basis, or 

 

·       (iii) 

is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition. 

* * *

 

·       2. Les définitions qui suivent s'appliquent au présent règlement. 

 

·       "enfant à charge" L'enfant qui : 

 

·       a) d'une part, par rapport à l'un ou l'autre de ses parents : 

 

·       (i) 

soit en est l'enfant biologique et n'a pas été adopté par une personne autre que son époux ou conjoint de fait, 

·       (ii) 

soit en est l'enfant adoptif; 

 

·       b) d'autre part, remplit l'une des conditions suivantes : 

 

·       (i) 

il est âgé de moins de vingt-deux ans et n'est pas un époux ou conjoint de fait, 

·       (ii) 

il est un étudiant âgé qui n'a pas cessé de dépendre, pour l'essentiel, du soutien financier de l'un ou l'autre de ses parents à compter du moment où il a atteint l'âge de vingt-deux ans ou est devenu, avant cet âge, un époux ou conjoint de fait et qui, à la fois : 

 

·       (A) 

n'a pas cessé d'être inscrit à un établissement d'enseignement postsecondaire accrédité par les autorités gouvernementales compétentes et de fréquenter celui-ci, 

·       (B) 

y suit activement à temps plein des cours de formation générale, théorique ou professionnelle, 

 

·       (iii) 

il est âgé de vingt-deux ans ou plus, n'a pas cessé de dépendre, pour l'essentiel, du soutien financier de l'un ou l'autre de ses parents à compter du moment où il a atteint l'âge de vingt-deux ans et ne peut subvenir à ses besoins du fait de son état physique ou mental. 

8     In addition, the applicant asserts that even if Armin was not a dependent child, it was an error to dismiss his appeal as he is the only member of his family who was thereby denied legal status in Canada, in violation of the principle of family reunification contained in paragraph 3(1)(d) of the Act.

9     The respondent asserts that the IAD's decision is reasonable. It is accepted that Armin did not meet the residency requirements of the Act, having only been physically present in Canada for 265 days. There was no reason for his absence: he could have remained in Canada, attended school, sought work, as his other brothers did. The respondent claims a review of the IAD's decision indicates that it considered all of the evidence before it. While the applicant may be dissatisfied with the IAD's weighing of the humanitarian and compassionate factors, his dissatisfaction does not warrant this Court's intervention.

10     With regards to the definition of dependent under the Regulations, the respondent argues it is not clear what Armin's educational history is based on the evidence.

11     In response to the respondent's allegation of confusion in the IAD's decision as to Armin's educational history and return to Canada, the applicant asserts that the IAD erred in fact by failing to properly consider and understand the evidence before it.

12     Firstly, it is irrelevant that Armin was allowed to enter Canada as a permanent resident; permanent residents have the obligation to comply with their residency requirements under the Act and the present application for judicial review arises out of Armin's failure to comply with these residency requirements. It is accepted that Armin was only physically present in Canada for 265 days; this finding by the visa officer was accepted by the IAD and is not challenged by the applicant. Thus, it is irrelevant whether Armin remained in Canada as of 2009 or 2010. Lastly, although the Act promotes family reunification, this reason alone is insufficient to allow an application based on humanitarian and compassionate grounds. The IAD explicitly considered that Armin would be the only member of his immediate family in Iran if removed. It was up to the IAD to weigh the humanitarian and compassionate grounds raised by the applicant and his family, which it did - no one ever argued before the IAD that if removed to Iran, they would be subject to government control. The real issue raised by the applicant is the IAD's finding that Armin is not a dependent.

13     Armin is an adult and there is no evidence of him being handicapped or incapable in any way. He provided no evidence for himself during the hearing, or in the present application for judicial review, never testifying, nor filing an affidavit. However, the IAD did consider the evidence before it. Simply stating that the applicant and his spouse have cared for Armin all his life does not make him a dependent: he is fully capable of caring for himself. The issue is whether it was reasonable for the IAD to conclude that Armin is not a dependent, being 25 years old at the time.

14     "Dependent child" is defined in the Regulations. Armin clearly satisfies the first prong of the definition, being the applicant's biological child. However, he is over 22 years of age and there is no evidence that he is unable to support himself. Thus, to be a dependent pursuant to the Regulations, it must have been established that he "depended substantially on the financial support of the parent since before the age of 22", has been a student continuously enrolled in a post-secondary institution and has actively been pursing a course on a full-time basis.

15     The evidence is unclear as to Armin's education. Various institutions and courses are mentioned. It is unclear whether Armin was continuously enrolled in a post-secondary institution on a full-time basis.

16     While both York University and George Brown College were listed as Canadian institutions Armin attended, there was no documentation on record from these schools. It is also unclear what Armin intended to study. The applicant testified that his son came to Canada in 2009 and took courses. However, according to his wife's evidence, their son has been in Canada since 2010. It is also unclear why Armin did not testify at the hearing if he was in Canada. Thus, by failing to provide clear evidence, Armin failed to establish the requisite humanitarian and compassionate grounds.

17     The burden of proof was on the applicant and his family. Considering the evidence before the IAD, it was not unreasonable for the IAD to conclude that Armin was not a dependent. While he most likely did financially depend on his parents since before the age of 22, it is not clear that he has continuously been a student in a post-secondary institution on a full-time basis. The IAD's finding of a lack of dependency falls within the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, above at para 47). The IAD's decision as a whole is reasonable, its conclusions being made based on the evidence before it. Thus, this Court's intervention is unwarranted. As this conclusion is determinative of the present application for judicial review, it will not be necessary to deal with the issue concerning the standing of the applicant, which was raised by the respondent.

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

19     I agree with counsel for the parties that this is not a matter for certification.

JUDGMENT

The application for judicial review of the decision of a member of the Immigration Appeal Division of the Immigration and Refugee Board of Canada, refusing part of the applicant's appeal of the visa officer's determination that the applicant and his family failed to comply with the residency requirements under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.

PINARD J.