Thursday, June 20, 2013


In this recent case, the Federal Court upheld an officer's refusal of an application to sponsor members of the family class for mot meeting the minimum income requirements at the time of filing of the application. The court held that the officer was entitled to rely on the CRA "Option C" printout provided, even it the applicant subsequently disputed its accuracy.

Pospelova v. Canada (Minister of Citizenship and Immigration)

Between Maria Pospelova and Pino Guerra, Applicants, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 623

2013 FC 555

Docket IMM-9519-12

 Federal Court
Ottawa, Ontario

Boivin J.

Heard: May 15, 2013.
Judgment: May 28, 2013.

(28 paras.)



1     BOIVIN 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 rendered by a Citizenship and Immigration Canada Officer (the officer) dated June 28, 2012. The applicants filed an application to sponsor a member of the family class. The officer determined that the applicants were not eligible sponsors because they did not meet the minimum necessary income requirement prescribed by the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations).

2     The applicants were self-represented at hearing before this Court.

Factual background

3     In December 2007, Ms. Maria Pospelova (the main applicant) and Mr. Pino Guerra (the co-signer; together, "the applicants") submitted an application to sponsor the main applicant's mother and her dependant daughter, who currently live in Russia (Tribunal Record, pp 10-15). Along with the sponsorship application itself, the applicants also completed a financial evaluation and submitted the following supporting documents to Citizenship and Immigration Canada: a letter from a realty broker for whom the co-signer worked as an independent contractor, along with a cheque stub; a statement of income and retained earnings from the co-signer's roofing company; a statement of revenue and expenses for rental properties; and an income statement for 809210 Ontario Ltd, for which the co-signer is the sole shareholder (Application Record, Affidavit of Pino Guerra, Exhibit 1, pp 6-15). The applicants reported their total income available to sponsor as being $159,799 (Application Record, Affidavit of Pino Guerra, Exhibit 1, p 6). A letter confirming receipt of their application was sent on January 11, 2008 (Application Record, Affidavit of Pino Guerra, Exhibit 3).

4     A letter from Citizenship and Immigration Canada dated November 25, 2011, requested additional information from the applicants to be submitted within ninety (90) days. A document checklist indicating which documents to submit was attached to the letter, but not provided to the Court (Application Record, Affidavit of Pino Guerra, Exhibit 4). In a letter dated May 8, 2012, Citizenship and Immigration Canada confirmed that the applicants' application was received on February 22, 2012 and was complete (Application Record, Affidavit of Pino Guerra, Exhibit 5).

5     On June 11, 2012, the officer requested an original Option C-Printout from the applicants, as well as all T4 and T5 slips, for taxation years 2006 and 2007. Option C-Printouts are summaries provided free of charge by the Canada Revenue Agency (CRA) which set out, in a concise manner, information that is equivalent to that found on a notice of assessment. The officer requested the documents be received by August 10, 2012 (Tribunal Record, pp 27-28). The applicants requested Option C-Printouts from CRA and received them on June 18, 2012. The applicants were leaving the country for summer holidays on June 19, 2012, only to return at the end of August 2012 (Application Record, Affidavit of Pino Guerra, Exhibit 6). The applicants claim not to have had time to verify and review the Option C-Printouts and accordingly sent them immediately to Citizenship and Immigration Canada along with their T4 and T4A slips to comply with the officer's request (Application Record, Affidavit of Pino Guerra, para 7-8).

6     The main applicant's Option C-Printout for 2006 revealed a total income (line 150) of $3,541, and the printout for 2007 indicated a total income of $9,541. The co-signer's Option C-Printout for 2006 indicated a total income of -$12,227, while the 2007 printout indicated a total income of $4,120. The co-signer's T4A slips for 2006 and 2007 stated self-employed commission amounts of $12,255 and $34,010, respectively (Tribunal Record, pp 29-41).

7     The applicants had to meet the minimum necessary income for a family of five (5), including themselves and their son, along with the main applicant's mother and her dependant child who were being sponsored. The minimum necessary income, based on 2007 figures for a family of five (5) persons, was $43,791 (Affidavit of Sharon Ferreira, dated April 8, 2013, p 34).

Impugned decision

8     In a letter dated June 28, 2012, the officer indicated that the applicants were ineligible to sponsor their family members because they did not meet the minimum necessary income requirement pursuant to subparagraph 133(1)(j)(i) of the Regulations. The applicants' eligible income was calculated using the T4 slips and Option C-Printouts they provided (Tribunal Record, p 9). Their income was calculated for the twelve (12) months prior to their application (from December 18, 2006 until December 18, 2007). The officer found their total available income for the relevant period to be $15,559, below the minimum required, and thus concluded that they were ineligible. Because the main applicant had indicated on the sponsorship application that she wished to withdraw her application if she was found ineligible, it was officially withdrawn at that time (Tribunal Record, p 10). The applicants were refunded all fees paid with the exception of the $75 sponsorship fee.

Additional affidavit

9     The applicants filed an additional affidavit on December 7, 2012, containing revised notices of assessments for both applicants and revised Option C-Printouts for the co-signer's 2007 taxation year. The revised 2007 notice of assessment for the co-signer shows a total income of $37,167 (instead of the initial $4,120), and $10,741 for the main applicant (instead of the initial $9,541) (Additional Affidavit of the Applicants, Exhibits 1 and 2). However, it is undisputed that they were not before the officer. They were obtained after the applicants learned they were ineligible.


10     The sole issue raised in the present application is whether the officer's finding that the applicants did not meet the minimum necessary income, and thus were ineligible to sponsor their family member's application for permanent residence, was reasonable.

Statutory provisions

11     The relevant provisions in this application for judicial review are found in the Regulations. They are set out in Annex to these reasons for judgment and judgment.

Standard of review

12     The issue in the present application for judicial review - namely, whether the applicants meet the financial requirements for sponsorship under the Act and its Regulations - is a factual determination made by the officer. As such, the officer's decision will be reviewed under the standard of reasonableness (Dokaj v Canada (Minister of Citizenship and Immigration), 2009 FC 847 at para 18, 82 Imm LR (3d) 239; Chahal v Canada (Minister of Citizenship and Immigration), 2007 FC 953, 65 Imm. L.R. (3d) 141 [Chahal]). The Court will therefore examine the "existence of justification, transparency and intelligibility within the decision-making process" as well as "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir]).


13     The applicants claim that they were deemed ineligible to sponsor because of an incorrect Option C-Printout, which they have now corrected and produced before this Court. Insisting that the sponsorship process was initiated over five (5) years ago, the applicants claim that it would be unjust not to allow them the opportunity to have their application reviewed with the corrected notices of assessment and Option C-Printouts. The applicants also claim that at the time of making the decision, the officer had T4 slips which totalled $43,625 without any additional business income, which is only $166 short of the minimum necessary income. The applicants claim that the officer chose the lower figure depicted by the Option C-Printouts without requiring clarification from them and without referring to the T4 slips.

14     The respondent disagrees and claims that the officer considered all the documentation provided by the applicants and rendered a reasonable decision. The respondent maintains that the applicants provided documents with their sponsorship application which were sparse and did not include verifiable records such as pay stubs or bank statements. With regards to the incorrect Option C-Printouts initially provided in June 2012, the respondent submits that the applicants bear the onus of putting their "best foot forward" when completing their applications, and must ensure that all information submitted is accurate (citing Arumugam v Canada (Minister of Citizenship and Immigration), 96 A.C.W.S. (3d) 467, [2000] F.C.J. No. 445 (QL) at para 29 [Arumugam]).

15     The respondent also observes that the new documents provided by the applicants in their December 7, 2012 affidavit show an increase in the co-signer's net commission income for 2007 of over $32,000, while his gross commission income remained the same. The respondent claims that in any event, this new information was not before the officer at the time of making the decision, and barring issues of jurisdiction or procedural fairness, new evidence cannot be considered upon judicial review (Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428 at para 10, [2012] F.C.J. No. 477 (QL) [Oloumi]).

16     Finally, the respondent indicates that the applicants have voluntarily chosen the option of withdrawing their application in the event that they were found ineligible by checking the corresponding box on their sponsorship application. Pursuant to section 119 of the Regulations, their family member's application for permanent residence was also discontinued at that time. The decision to withdraw their application if found ineligible cannot be appealed. The respondent recalls that the consequences of this choice were fully outlined in the Sponsor's Guide (Affidavit of Sharon Ferreira dated April 8, 2013, Exhibit A, p 15), which is provided to applicants with the application to sponsor and also made available online.


17     Subsection 134(1) of the Regulations describes the manner in which the sponsor's income is calculated. This methodology was also summarized in the officer's decision (Tribunal Record, p 7). The Regulations indicate that the income is to be calculated on the basis of the income reported on the notice of assessment (or an equivalent document issued by the Minister of National Revenue, such as the Option C-Printout) for the most recent taxation year preceding the filing date of the application. If a sponsor produces such a document (a notice of assessment or an Option C-Printout), the income reported on line 150 of the document will be used (Respondent's Record, Affidavit of Sharon Ferreira, IP 2 Manual: Processing Applications to Sponsor Members of the Family Class, p 66). If a sponsor does not produce a notice of assessment or an Option C-Printout, or if the income reported on line 150 of such a document does not meet the minimum necessary income, the officer will calculate the sponsor's Canadian income for the twelve (12) months preceding the date of filing of the sponsorship application, excluding amounts listed in subparagraphs 134(1)(c)(i) to (v). The income of a co-signer is to be calculated in the same manner and added to the sponsor's income.

18     The officer's notes indicate that the applicants did not meet the minimum necessary income using the first method of calculation (i.e., using the amount reported on line 150 of the Option C-Printout for the year preceding their application - in this case, 2006). The officer therefore proceeded to the other method of calculating the applicants' income, which, pursuant to paragraph 134(1)(c) of the Regulations, involves examining the applicants' income for the twelve (12) months preceding the date of filing the sponsorship application (Tribunal Record, p 42). In the applicants' case, this period is between December 18, 2006 and December 18, 2007 (Tribunal Record, p 9).

19     The officer used the main applicant's reported income on her T4 slip for 2006, prorated to reflect her employment income from December 18, 2006 until December 31, 2006, as well as the entire amount of employment income reported on her 2007 T4 slips (earned between January and July 2007). The officer also used her 2006 Option C-Printout to include an amount of "other income". The officer used the co-signer's 2006 Option C-Printout to calculate net rental income and net commission income, prorating the amounts to reflect the period comprised between December 18, 2006 and December 31, 2006. Similarly, the 2007 Option C-Printout was used to calculate universal child care benefit amounts, net rental income and net commission income, prorating the amounts to reflect the period comprised of January 1, 2007 to December 18, 2007. The officer's calculation method is not questioned by the applicants. It led the officer to a total available income amount of $15,559.01.

20     There is no evidence before the Court that could lead it to conclude that the officer's decision was unreasonable. When no notices of assessment or Option C-Printouts were sent with the application, the officer requested them. Upon realizing that the income reported for 2006 on line 150 of these documents would be insufficient, the officer examined the twelve (12) month period prior to submitting the application, therefore including a significant portion of 2007 (December 18, 2006 until December 18, 2007). The resulting amount of income calculated is supported by the evidence, even when taking into account the other documents initially provided by the applicants.

21     Indeed, several documents initially provided by the applicants are for the year 2006, of which only two (2) weeks can be taken into account (December 18, 2006 until December 31, 2006). Prorating these amounts results in a figure much lower than that alleged by the applicants. The document reporting earnings from the co-signer's roofing company cannot be taken into account since it reports on the year 2006 ending on October 31, 2006 (Application Record, Affidavit of Pino Guerra, Exhibit 1, p 13). Furthermore, documents from the real estate broker, for which the co-signer is an independent contractor, report gross commission amounts (Application Record, Affidavit of Pino Guerra, Exhibit 1, p 12; Tribunal Record, pp 40-41). The Court is satisfied that the officer did not ignore any relevant information when coming to the conclusion reached in this case. In fact, the officer relied on the most reliable information at hand: the T4 slips and the Option C-Printouts from CRA.

22     The Court also finds it was reasonable for the officer to rely on CRA's documents to verify the information provided by the applicants (Chahal, above at para 11).

23     The Court acknowledges that the new Option C-Printouts and notices of assessment would lead to a different result, showing an income of over $48,000. However, the burden of presenting accurate information rests on the applicants' shoulders (Chahal, above; Arumugam, above). The applicants had the opportunity to review their documents before sending them to Citizenship and Immigration Canada. As noted by the respondent, evidence that was not before the decision maker is not to be considered by the Court in judicial review, except in cases where issues of procedural fairness or jurisdiction arise, which is not the case (Oloumi, above at para 10). More importantly, it remains unclear - and the record does not provide any evidence - as to whether the initial Option C-Printouts were incorrect, or whether they were correctly prepared with different information in accordance with the applicants' tax planning strategies to lower their taxable income.

24     The choice of withdrawing one's application if found ineligible is clearly outlined in The Sponsor's Guide (Affidavit of Sharon Ferreira dated April 8, 2013, Exhibit A, p 15): "If your choice is to withdraw your sponsorship, the application for permanent residence of the person you want to sponsor will not be processed and you will have no right of appeal. All fees you will have paid, except the sponsorship fee of $75, will be repaid to you". This guide is provided to sponsors with their application, and is also available online. The applicants referred to the Sponsor's Guide in their pleadings; therefore, the Court is satisfied that the applicants were aware of its contents when completing their sponsorship application.

25     The officer's decision was justified, intelligible and based on the evidence presented to him by the applicants. The Court therefore finds that the officer's decision was reasonable (Dunsmuir, above) and that its intervention in the present application is not warranted.

26     The Court understands that the result is unfortunate for the applicants. However, the Court recalls that this case is set in the context of judicial review and the Court cannot interfere unless the decision of the officer falls outside of the acceptable reasonable range enunciated in Dunsmuir, above. The Court does not think that it does. Finally, the new evidence adduced by the applicants was not before the officer and cannot be considered upon judicial review.

27     The applicants proposes the following question for certification:


·        Should the sponsor be provided with a deadline that if for whatever reason he cannot meet that deadline, that he has an opportunity to get an extension, and how he can request an extension? 

28     The answer to this question would not be dispositive of this case. The Court declines to certify it.


THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. There are no questions for certification.


Tuesday, June 18, 2013


I am quoted in today's National post front page story:

Dmitri Smirnov, a deaf Russian painter, refused permanent residency in Canada because he failed verbal language tests | Canada | News | National Post

Deaf Russian painter refused permanent residency in Canada because he failed verbal language tests

In his application, Dmitri Smirnov also included results from Canadian Hearing Society tests for his abilities in sign language: 9.2 out of 10 for expressive skills (analogous to “speaking”) and 9 out of 10 for receptive skills (analogous to “listening”).
John Ulan/National Post
In his application, Dmitri Smirnov also included results from Canadian Hearing Society tests for his abilities in sign language: 9.2 out of 10 for expressive skills (analogous to “speaking”) and 9 out of 10 for receptive skills (analogous to “listening”).
A Russian painter, deaf since birth, has been refused permanent residency in Canada because he did not meet the language proficiency requirement when tested verbally, despite getting near perfect scores when tested using sign language.
The decision to reject Dmitri Smirnov’s bid to remain in Canada because he did not meet listening and speaking language requirements angered deaf advocates who blasted it as discriminatory and called for American Sign Language to be seen as equivalent to English and French for immigration purposes.
“I’m shocked that the criteria of verbalizing and speaking is necessary to come to Canada,” said Chris Kenopic, president and chief executive officer of the Canadian Hearing Society. “Rejecting people from our country because of that is very unfortunate.”I’m shocked that the criteria of verbalizing and speaking is necessary to come to Canada
Speaking through an American Sign Language interpreter, Mr. Kenopic said he is offended by the decision and what it says about the government’s view of deaf citizens.
“The issue is that the federal government is not recognizing sign language as a means of communication. It leads me to ask, how do they see me?” he asked.
Mr. Smirnov was born deaf in Russia and primarily communicates using sign language. He found schools in Russia not sufficiently adapted for deaf students and moved to the United States, where he became fluent in American Sign Language.
He moved to Canada in 2006 and has lived and worked here as a commercial and residential painter. His work permit expires in a year and he applied to stay in Canada as a permanent resident.
Among the requirements is language proficiency in either of Canada’s official languages. This proved difficult.
With his International English Language Testing System reading and writing marks, test officials noted that due to Mr. Smirnov’s extreme hearing and speaking difficulties he was exempt from the speaking and listening tests. Instead, they guessed, according to court records, giving him marks “notionalized” from his other marks.
In his application, Mr. Smirnov also included results from Canadian Hearing Society tests for his abilities in sign language: 9.2 out of 10 for expressive skills (analogous to “speaking”) and 9 out of 10 for receptive skills (analogous to “listening”).
This case illustrates the difficulties involved in attempting to standardize the immigrant section criteria to ‘one size fits all’
In November, Mr. Smirnov’s application was refused. An immigration officer was not satisfied he met the official language proficiency requirement.
Mr. Smirnov appealed to the Federal Court of Canada, arguing the sign language marks should have been taken into account and claiming the rules discriminate against the deaf.
Mr. Smirnov’s Ottawa lawyer, Peter Stieda, argued the requirements to read, listen, speak and write in English or French violate Mr. Smirnov’s Charter rights, which guarantee the law will apply equally to all without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
No deaf person could become a permanent resident under the experience class under the current regulations and the government needs to treat sign language as equivalent to fluency in English or French, said Mr. Stieda.
In court, the government argued the immigration officer’s decision to reject Mr. Smirnov was reasonable.
The government said Mr. Smirnov did not present evidence that deafness can damage reading and writing marks so no special accommodation was required, and the sign language marks became irrelevant since all of Mr. Smirnov’s other language testing was below what is required.
Federal Court Justice Richard Boivin ruled last month that the facts of the case and lack of evidence adduced at trial caused him to dismiss both the Charter challenge and Mr. Smirnov’s appeal of the immigration decision.
“It is a deeply disappointing decision. Mr. Smirnov clearly was able to demonstrate he was able to integrate into in the community,” said Mr. Stieda.
“This case illustrates the difficulties involved in attempting to standardize the immigrant section criteria to ‘one size fits all’ and to remove the human decision-making element from the equation,” said Sergio R. Karas, a Toronto immigration lawyer and past chair of the Ontario Bar Association’s Citizenship and Immigration Section.
“The lack of flexibility in applying the language requirements to applicants who are very well qualified for their positions and have proven that they can function without problems in the work environment leads to ridiculous results,” he said.
National Post

Thursday, June 13, 2013


Warrantless workplace searches raise concerns from businesses - The Globe and Mail

June 11, 2013

Warrantless workplace searches raise concerns from businesses

Posted with permission from The Globe and Mail

Canada's largest business group says it's disturbed by new warrantless search and seizure powers the Harper government has given federal officials to inspect thousands of workplaces as part of a tightening of the controversial foreign temporary worker program

Canada's largest business group says it's disturbed by new warrantless search and seizure powers the Harper government has given federal officials to inspect thousands of workplaces as part of a tightening of the controversial foreign temporary worker program.
Changes to immigration and refugee protection regulations, published just days ago, give Human Resources and Skills Development Canada officials or Citizenship and Immigration Canada officers the right to walk in on businesses as part of a random audit or because they suspect fraud.
Perrin Beatty, president of the Canadian Chamber of Commerce, said this was the first he'd heard of this new authority. "I'm obviously very concerned about it. These seem to be very sweeping powers to be giving to the authorities without the sort of checks and balances that are necessary to ensure they are not abused," Mr. Beatty said. "We certainly support enhancing the ability of the government to identify people who are genuinely fraudulent. The question is: Should a public servant at a desk somewhere have the capacity to decide capriciously to simply go into a business without a warrant ... and in some cases to seize documents, without having to go to a court to seek authorization and to demonstrate there is probable cause?"
But not all companies share Mr. Beatty's concern. At Bombardier Inc.'s aerospace division in Montreal, which uses about 400 temporary foreign workers out of a work force of 20,800, "audits actually a very normal part of any process with any kind of government [program]," said spokeswoman Haley Dunne. "We are comfortable with them and quite open to them," she said.
Upon entering a property, officials will have wide powers of investigation. They will be able to "examine anything on the premises," question employers and staff, request documents, use photocopiers to copy records, and take photographs or make video and audio recordings. They can also take records with them.
The Canadian Chamber of Commerce represents 450 local chambers across the country that in turn represent 200,000 businesses.
The new rules bring businesses relying on temporary foreign workers under similar inspection regimes to ones used in regulated industries where health or environmental audits are conducted. The Charter of Rights and Freedoms protects people and businesses from unreasonable search and seizure, which generally means the government cannot enter private property without a warrant. But courts often allow warrantless inspections of regulated businesses, lawyers say.
Jay Myers, president of Canadian Manufacturers & Exporters, says his concern is rather how frequently HRSDC and immigration inspectors will be conducting random audits of businesses.
"If inspectors are going out to do a lot of random audits and inspections, it's really going to be a cost for companies that are otherwise obeying the rules of the program," Mr. Myers said.
"We really need to know more about what the plans are."
He said he hopes this doesn't represent an effort by Ottawa to further discourage use of the temporary foreign worker program.
"If this is being used as a method to get employers not to use the temporary foreign workers program and it becomes an overly costly compliance requirement for companies, then we really do have a problem."
Hundreds of thousands of foreign workers came to Canada in 2011 – more than double the levels of a decade ago. They are being used to fill positions in fields from fast-food to information technology to agriculture.
The new regulations come just months after the Conservative government reversed course on the temporary foreign worker program with measures to make it tougher, and less economically attractive, to import short-term labour.
Francis McGuire, CEO of Major Drilling Group International Inc. of Moncton, said he feels warrantless inspections may be necessary, because of the possibility of abuses in the temporary foreign worker program.
"It is extremely important for labour inspectors to pop in and make sure that people aren't being exploited," he said.
While there is legitimate concern that government officials may get "bureaucratic and sticky," there are instances where random audits are necessary, said Mr. McGuire, whose company has used temporary foreign workers in the past. "You hate to think that any Canadian employer might be exploiting people, but it does happen. ... and it has got to be policed. They have to come in and take a look, and they can't be announced."
Sergio Karas, a Toronto-based immigration lawyer, said warrantless search and seizures are a misstep. "I'm outraged and so are my corporate clients," Mr. Karas said. "What are they going to do [next]? Install listening devices now in businesses?"
Better options would have been limiting smaller businesses from accessing the program, reducing the number of years a foreign worker can stay in Canada, and ensuring temporary foreign workers pay payroll taxes while they're working in Canada, he said.
"It's true the system has been abused, but you need to understand who's been abusing the system. The people who have been abusing the labour market opinions are the mom-and-pop shops, typically in the construction industry, or the small employers who want to bring their brother-in-law from India or from Portugal."

Wednesday, June 12, 2013


A heavy-handed approach to the temporary foreign workers program - The Globe and Mail

Globe editorial

A heavy-handed approach to the temporary foreign workers program


The Conservative government’s plan to have warrantless inspections of workplaces that have temporary foreign workers seems excessive, in the absence of demonstrated evidence of widespread abuses.
The government says the purpose is twofold: to protect the integrity of the program, which is designed as a last resort when Canadians can’t be found to do the jobs; and to protect the foreign workers from exploitation.
There’s legitimate concern from economists and the wider public that some employers prefer to hire foreigners, rather than train Canadians for jobs. But the government has already addressed that concern with a strong new rule requiring all employers who hire temporary foreign workers to prepare a plan for eventually replacing them with Canadians. And a previous rule allowing the foreign workers to be paid up to 15 per cent less than Canadians has been scrapped.
Imagine a busy small business with 20 employees and about the same number of customers inside. Suddenly a federal inspector, or perhaps two or more, shows up for a random inspection. The search-and-seizure powers, and the suddenness, make it feel like a criminal investigation. (“The Stasi is going to be visiting employers,” Toronto immigration lawyer Sergio Karas says.) As a general principle, the state should not be rifling through a business’s filing cabinets without cause.
The government responds that warrantless inspections are permitted under the Canada Labour Code. But what makes sense in protecting workers against imminent safety risks may not make sense for checking an employer’s compliance with promised rates of pay and duties of work. There are milder ways to determine whether companies are living up to their word.
By the government’s own description, the program is meant to strengthen the Canadian economy by giving employers a way to fill short-term needs for skills and labour, in the event of a shortage of Canadian labour. But now those employers who do so will be letting themselves in for random inspections and document seizures, for up to six years after their last foreign worker has bid them goodbye. They may wonder if it’s worth the bother. The heavy-handedness seems, at first blush, counterproductive.

Saturday, June 8, 2013


This story illustrates how things can go astray. It is not clear if the paperwork was handled by a professional or not. It is also unclear if any of the people intending to cross has any inadmissibility grounds.  This is also a reminder that good planning is essential,

Music promoter blames border officials for causing NKOTB concert delay

Music promoter blames border officials for causing NKOTB concert delay



New Kids on the Block perform at Scotiabank Place in Ottawa, June 05, 2013.

Photograph by: Jean Levac, Ottawa Citizen/Postmedia News

OTTAWA — The chairman of one of Canada’s largest music promoters has slammed Canada Customs and Immigration officials at the Thousand Islands Bridge crossing for causing Tuesday’s postponement of the New Kids on the Block concert at Scotiabank Place.
The concert by the boy band, along with 98 Degrees and Boyz II Men, was postponed until Wednesday after the tour’s eight buses and 10 trucks were held up at the Lansdowne border crossing from about 7 a.m. until 1 p.m. on Tuesday. The concert promoter said that made it impossible for the crew to set up in time for the Tuesday evening show.
Abut 6,200 fans attended the show Wednesday, but the promoter says he lost “thousands of dollars.”
The immigration paperwork for the band and crew members was at the border crossing two days before the concert, said Riley O’Connor, chair of Live Nation Canada. The company received a fax confirming that everything was in order, he said.
“I’ve been doing this for 40 years and it’s the same process all the time,” an exasperated O’Connor said Friday in an interview.
“All I know is we followed our procedures: 48 hours before anyone crosses the border they have the full documentation and it’s faxed to them old-style because that is what they want. But I have no clue what happened, because we are not party to what goes on in the process by the customs and immigration people.”
Chris Kealey, a spokesman for the Canadian Border Services Agency, said he disagreed with the concert promoter’s assessment of what led to the postponement of the show.
“The information the promoter has is not consistent with the CBSA’s version of events,” said Kealey in an emailed statement to the Citizen.
Kealey said that usually on big tours the promoters are required to send in the documentation five to seven days in advance of the band crossing the border.
But O’Connor called the treatment of his company and the tour staff “shabby,” especially since border officials did not explain the reason for the delay.
“I do business in Canada and provide a lot of jobs and provide a lot of revenue to the taxation department. And if they want to treat businesses and citizens like we’re a bunch of geese, fine, then that is the country we live in. But it is pretty shabby treatment.”
When the convoy of tour trucks and buses arrived at the Thousand Islands Bridge at 7 a.m. Tuesday, traffic was not heavy, he said. But they met with a delay that lasted until 1 p.m.
Performances by prominent music groups are often complex and the set-up and tear down of stages is timed to the second. O’Connor said he knew by 1 p.m. Tuesday that there was not enough time left for the concert to be staged safely that night, and a decision was made to postpone the show to Wednesday.
Fortunately, there was an open day in the group’s tour schedule. The tour went to Montreal Thursday and was to perform in Toronto Friday night.
The postponement of the Scotiabank show disappointed fans and cost Live Nation Canada tens of thousands of dollars in extra fees to catering companies, police and hotels, said O’Connor.
“We lost ticket sales and it costs more money to have people set up over two days.” He declined to estimate the financial hit.
“Let’s put it this way, nobody made money that night.”
Some fans, like Amanda Morrow and Jennifer Francis from Toronto, were unable to make the replacement show. They told the Citizen that they had booked tickets, took time off from their jobs and planned the road trip. They were an hour outside Ottawa when they learned the show was postponed until Wednesday night. They weren’t be able to make it. “We’re bummed,” said Morrow on Tuesday to a Citizen reporter.
There have been other delays of music tours crossing into Canada. When the Rolling Stones played Ottawa in 2005, a border holdup put a serious crimp into preparations for the large-scale concert that was staged at Lansdowne Park. The trucks and buses for that tour were delayed for three hours at the Champlain Crossing, but luckily they arrived two days before the concert just as crews began to build the massive stage on the football field.

Thursday, June 6, 2013


The onus is on an applicant to present evidence to substitute the application for the Federal Skilled Worker Class.

Zadeh v. Canada (Minister of Citizenship and Immigration)
Between Roya Nik Zadeh, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 574

2013 FC 516

Docket IMM-8549-12

 Federal Court
Toronto, Ontario

Phelan J.

Heard: May 6, 2013.
Judgment: May 17, 2013.

(17 paras.)








·        I. 


1     This is a judicial review of a Visa Officer's [Officer] decision to deny the application for a permanent resident visa under the Federal Skilled Worker Class.


·        II. 


2     The Applicant claimed that she qualified under National Occupation Classification [NOC] Code as a Financial Manager. She is a resident of Iran and works as a financial manager for Hugel Co., Hugugan Queshm Trading Co. in Iran. She holds a Bachelor Degree in Business Management and the university certificates suggest that she had a Masters degree. Nothing seems to turn on this distinction.

3     The Applicant's file was transferred from Damascus to Ankara, Turkey for processing. Despite the Applicant's argument that she did not know this and that it is somehow unfair, I see no prejudice to the Applicant nor any infringement of her rights.

4     The Officer's decision turned on the Applicant's failure to provide sufficient evidence to support her claim. The duties described in the employment letters did match the occupational description of the NOC Code.

The Officer's Notes detail the deficiencies more precisely by referring to the specific activities performed at each of her current and prior employers.

The Officer found that the Applicant was more like a Bookkeeper than a Financial Manager.


·        III. 


5     The Applicant argued (a) that the Officer erred in assessing the Applicant's experience as it related to NOC - Financial Manager; and (b) breached natural justice/procedural fairness by not providing the Applicant with an opportunity to address the Officer's concerns about her application.

6     It is well settled that the standard of review for the evaluation of eligibility within the Federal Skilled Workers Category is reasonableness (Chadha v Canada (Minister of Citizenship and Immigration), 2013 FC 105, 225 ACWS (3d) 202). This includes the issue of sufficiency of reasons (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708).

The issue of procedural fairness is subject to a correctness standard of review (Chadha, above).

A. Procedural Fairness


·        (1) 

Officer's Evaluation

7     This Court has confirmed, in cases such as Farooqui v Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 714, 182 FTR 306 (FCTD), that a visa officer can give greater weight to certain duties within the NOC description. This Court's role is to review the reasonableness of the Officer's conclusion.

8     A comparison between the Applicant's experience and the NOC description provides a sound basis for assessing the reasonableness of the Officer's evaluation.

Applicant's Experience


·        * 

programming, organizing, guidance, control and accounting operations assessment and studding other financial department activities [sic in original translated letter]; 

·        * 

employment, organizing, educating and managing employees of financial department; 

·        * 

providing financial report to directing management; 

·        * 

to prepare and provide financial lists and analyzing the final cost and other financial reports; 

·        * 

to assess financial reporting system, accounting process and investment activities and to provide proposal regard to modify operating procedure, budgeting to company directing management and other related departments. 

·        * 

codified programming in order to registration of company books; 

·        * 

being assured of optimum registration of financial activities in system and presenting reports of balance sheet; 

·        * 

optimum usages of tax regulations; 

·        * 

preparing financial reports for related organs including Ministry of Finance, insurance and etc., under the control of the manager of the company; 

·        * 

determining competent personnel in financial affairs; 

·        * 

closing fiscal year accounts and preparing financial reports appropriate to them; and, 

·        * 

presenting financial consulting services. 

NOC Description


·        * 

plan, organize, direct, control and evaluate the operation of an accounting, audit or other financial department; 

·        * 

recruit, organize, train and manage staff; 

·        * 

prepare or co-ordinate the preparation of financial statements, summaries, and other cost-benefit analyses and financial management reports; 

·        * 

develop and implement the financial policies, systems and procedures of an establishment; 

·        * 

evaluate financial reporting systems, accounting procedures and investment activities and make recommendations for changes to procedures, operating systems, budgets and other financial control functions to senior managers and other department or regional managers; 

·        * 

co-ordinate the financial planning and budget process, and analyze and correct estimates; 

·        * 

supervise the development and implementation of financial simulation models; 

·        * 

act as liaison between the organization and its shareholders, the investing public and external financial analysts; 

·        * 

establish profitability standards for investment activities and handle mergers and/or acquisitions; and, 

·        * 

notify and report to senior management concerning any trends that are critical to the organization's financial performance. 

9     There are a number of areas in which there is no evidence of the Applicant meeting the job description. These include:


·        * 

developing policies or procedures; 

·        * 

supervising the development or implementation of financial simulation models; 

·        * 

liaising between the organization and shareholders, the public or other analysts; 

·        * 

establishing profitability standards; 

·        * 

handling mergers or acquisitions; and 

·        * 

reporting trends that are critical to the organization's financial performance. 

10     While the Officer concluded that the Applicant had no experience in "recruiting, organizing or training staff", there was in fact evidence that she had experience in this area. Despite this questionable finding, reviewed as a whole, the Officer's conclusions were reasonable.

11     I can find no relevant evidence that was ignored. Contrary to the Applicant's submissions, the Cooperation Contracts were specifically noted by the Officer and therefore were considered.

12     Further, I can find no basis for concluding that the reasons were not sufficient. The Applicant seeks to expand Newfoundland Nurses, above, to formalize decisions of visa officers along the lines of court decisions. I do not interpret Newfoundland Nurses to impose that requirement. It is sufficient if the record, including notes, shows the reasons behind the administrative decision. The Officer's decision satisfies that requirement and is reasonable when examined in totality.

13     The Applicant contends that the Officer should have accorded her an opportunity to address the Officer's concerns about her application.

14     As Justice Rennie held in Chen v Canada (Minister of Citizenship and Immigration), 2011 FC 1279, 209 ACWS (3d) 668, the visa officer is to focus on relevant experience, training or education and certification. The officer is not expected to engage in a dialogue.

15     The decision under review is one of adequacy of the evidence where the onus is on the Applicant. The decision is not one where true credibility is at issue or accuracy and genuineness of documents are questioned where cases such as Ma v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 1042, 84 Imm LR (3d) 280, and Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501, indicate that fairness dictates that an applicant be able to address those matters.

16     Therefore, there was no breach of procedural fairness.


·        IV. 


17     This judicial review will be dismissed. There is no question for certification.


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