FOREIGN SERVICE STRIKE CONTINUES TO IMPACT VISA PROCESSING

Canada’s foreign service strike hurting tourism, creating backlogs | Toronto Star

STUDY PERMIT APPLICANT SHOULD HAVE BEEN INTERVIEWED BEFORE REFUSAL

The visa officer in the case below breached procedural fairness by failing to interview the applicant, even though he had admitted to fraud in previous applications and was turned down for visas multiple times.  The matter was sent back to a different officer. There is no information as to the final outcome of the Study Permit application ( i.e if a Study Permit was granted).However, it must be noted that in most cases, applicants "win a battle and lose the war, as the Court notes below, that there is a very high bar to overcome when an applicant has been refused multiple times and has been found to have presented fraudulent documentation in the past. In this case, the grant of judicial review is purely based on procedural fairness.

Maklakov v. Canada (Minister of Citizenship and Immigration)

Between Andriy Maklakov, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 239

2013 FC 242

Docket IMM-3998-12

 Federal Court
Toronto, Ontario

Kane J.

Heard: January 31, 2013.
Judgment: March 7, 2013.

(24 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     KANE J.:-- The applicant, Mr Andriy Maklakov, is a citizen of the Ukraine. He brought this application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] of the February 22, 2012 decision of a Visa Officer [the Officer] at the Canadian Embassy in Kiev, Ukraine which refused his application for a study permit pursuant to subsection 11 of the Act.

2     For the reasons that follow, the application is granted and the matter is remitted for reconsideration by a different Officer.

3     Mr Maklakov made three previous applications for study permits, all of which were refused, and five applications for visitor's visas, four of which were refused. He was granted one visitor's visa in 2008 to attend to his dying mother in Canada. His troubled visa history is attributed to his earlier application in 2003 when he used a fraudulent letter from an employer to bolster his economic situation. He admitted his fraudulent documents upon questioning and has disclosed this in subsequent applications.

4     The applicant has been denied visitor's visas and study permits since 2003, including in 2010, due to his "propensity for fraud and misrepresentation" and because his "study permit application is simply another means of entry into Canada."

5     The decision which is the subject of this application for judicial review relates to the applicant's application for a study permit to attend SAIT Institute in Alberta. The applicant was accepted into the program, first to study English, and then to study film and video production to enhance his skills as a filmmaker in Ukraine. He submitted documents to show that he would live with his sister and brother-in-law who are well established in Calgary. He provided a statement from a Canadian bank with a balance of $20,000 to cover his tuition and related expenses. He indicated that his wife would continue to work and reside in Ukraine with their child while he studied in Canada and that he has a film business in Ukraine.

6     The Officer found that the applicant did not meet the requirements under section 11 of the Act. The reasons for the decision include the letter of refusal, the Officer's notes and an accompanying checklist which indicated that the Officer was not satisfied the applicant would leave Canada at the end of his stay, due to two factors; "the purpose of your visit" and "your current employment situation". Under the heading "other reasons", the Officer noted "you have a history of misrepresentation and lack credibility".

7     The Officer's notes also include the following:

 

·        "(The applicant) is 34 years old, married, going to attend SAIT for a one year ESL course. Employed as an operator and director of editing at Vidoe [sic] Master Plus. Has been refused SPs on three occasions, Received TRV in 2008, Has admitted to submitting fraudulent docs in the past. (He) has also applied for a Film and Video Production course. (He) has a Canadian bank account showing 20,000 cad in savings. Spouse and minor child in Ukraine. (He) shows no source of funds. (He) has not provided a compelling reason for studies in Canada. He is an admitted fraudster and lacks credibility. I am not satisfied that the [sic] is a bona fide temporary resident. Application refused." 

8     The applicant raised three grounds for this judicial review: first, that the Officer denied the applicant procedural fairness because he was biased; second, that the Officer denied the applicant procedural fairness by not providing an opportunity for the applicant to address the Officer's concerns about his credibility; and, third, that the Officer's decision was unreasonable as it was based on erroneous findings of fact or failure to consider documentary evidence in support of his application.

9     The respondent submits that given the applicant's history and admissions of fraud and misrepresentation, he had a higher burden to meet to establish the bone fides of his application. The applicant failed to do so because he did not provide sufficient evidence to establish the purpose of his study in Canada, his source of finances or how his business would operate in the Ukraine while he was in Canada. The respondent submits that the application was refused due to insufficiency of evidence and not due to credibility findings and, therefore, there was no duty on the Officer to convoke an interview and there was no reasonable apprehension of bias.

10     With respect to the allegations of bias, the applicant and respondent agree that the test for bias is that set out by Justice de Grandpré, writing in dissent, in Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR 369, at p 394:

 

·        ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." 

11     As noted in R v RDS [1997] 3 SCR 484 by Justices L' Heureux- Dube and McLachlin, referring to the above noted test;

 

·        113 Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly. 

12     Although the Supreme Court of Canada was referring to an allegation of bias against a judge, the same principle applies to other decision makers; allegations of bias are serious and should be made with caution.

13     In the present circumstances, there is no evidence on the record to suggest that the Officer pre-judged the application. While the Officer was aware of the applicant's history which provided relevant background information, he considered the current application and the supporting documents before making his decision. I do not agree that the Officer showed any bias or that a reasonable person would conclude that the Officer would not decide the matter fairly.

14     As the respondent submits, the applicant had a high burden to satisfy the Visa Officer of the criteria for a study permit given his misrepresentation in 2003. The respondent argues that the applicant failed to meet that burden with sufficient evidence. However, the Officer clearly regarded the past misrepresentation as a credibility issue, as he noted twice in his reasons. The applicant submits that this one misrepresentation, which he admitted in all subsequent applications, has resulted in refusals in all but one application.

15     It is settled law that the requirements of procedural fairness are more relaxed for visa applications and that it would be practically impossible for Visa Officers to convoke interviews in all cases. However, procedural fairness will require interviews in some circumstances.

16     In Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283, Justice Mosley canvassed the jurisprudence with respect to the duty of fairness owed to visa applicants and noted at paragraphs 23 and 24;

 

·        [23] In Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004 FC 284, [2004] F.C.J. No. 317 (QL) [Rukmangathan], the Court offered the following guidance in determining what is required of a Visa Officer when different types of concerns arise: 

 

·        para 22 ...the duty of fairness may require immigration officials to inform applicants of their concerns with applications so that an applicant may have a chance to "disabuse" an officer of such concerns, even where such concerns arise from evidence tendered by the applicant. Other decisions of this court support this interpretation of Muliadi, supra [Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.)]. See, for example, Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.), John v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 350 (T.D.)(QL) and Cornea v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 38 (F.C.T.D.), where it had been held that a visa officer should apprise an applicant at an interview of her negative impressions of evidence tendered by the applicant. 

 

·        para 23 However, this principle of procedural fairness does not stretch to the point of requiring that a visa officer has an obligation to provide an applicant with a "running score" of the weaknesses in their application: Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091(T.D.)(QL) at para. 21 and Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1926. And there is no obligation on the part of a visa officer to apprise an applicant of her concerns that arise directly from the requirements of the former Act or Regulations: Yu v. Canada (Minister of Employment and Immigration) (1990), 36 F.T.R. 296, Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1 and Bakhtiania v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1023 (T.D.)(QL). 

 

·        In Rukmangathan, the Court concluded that the visa officer's problems with the applicant's application, namely, why he had taken further courses in Canada, the consideration that his marks were "low" (although they were in the mid-70s range) and the "poor quality" of two of his educational documents, should have been placed before the applicant for a response. The Court made this finding on the basis that most of the officer's concerns could not be said to have emanated directly from the requirements of the legislation. 

 

·        [24] Having reviewed the factual context of the cases cited above, it is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such a duty may arise. This is often the case where the credibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visa officer's concern, as was the case in Rukmangathan, and in John and Cornea cited by the Court in Rukmangathan, above. 

 

·        Emphasis added

17     In the circumstances of this case, given the Officer's concerns about the applicant's credibility and given that the applicant will never succeed if every officer takes a similar view of his history, the Officer had a duty to convoke an interview, whether in person or by other means, to explore his concerns about the applicant's credibility and to provide an opportunity for the applicant to respond.

18     In this case, the applicant was aware that he had an uphill battle to support his application for a study permit which he attempted to address in his submissions setting out the purpose of studying in Canada, the acceptance from SAIT Institute, the financial information and the letter from his sister and brother-in-law. However, the credibility finding could not be overcome without an opportunity to address this with the Visa Officer. The Officer's failure to convoke an interview constituted a breach of procedural fairness.

19     A breach of procedural fairness will not always result in relief. However, in these circumstances, it is not inevitable that the result would have been the same if the Officer had conducted an interview. Therefore, the application should be remitted to be considered by a different Visa Officer.

20     It is not necessary to address the arguments related to the findings of fact.

21     The applicant also submits that costs should be awarded to him for the same reasons advanced to support this application and, generally, due to the Officer's failure to make a proper decision.

22     Rule 22 of the Federal Courts Immigration and Refugee Protection Rules provides as follows:

 

·        22. 

No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders. 

* * *

 

·        22. Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande d'autorisation, la demande de contrôle judiciaire ou l'appel introduit en application des présentes règles ne donnent pas lieu à des dépens. 

23     Based on a review of the jurisprudence, including Ndererehe v Canada (Minister of Citizenship and Immigration), 2007 FC 880 and Johnson v Canada (Minister of Citizenship and Immigration), 2005 FC 1262, [2005] F.C.J. No. 1523, I do not find that any special reasons exist in this case to justify an award of costs.

24     This Court's judgement is that the application is granted and the matter is remitted for reconsideration by a different Officer. No costs are awarded. No questions were proposed for certification.

JUDGMENT

 

·        THIS COURT'S JUDGMENT is that:

 

·        1. 

The application is granted and the matter is remitted for reconsideration by a different Officer. No costs are awarded. No questions were proposed for certification. 

KANE J.

MORE ON STUDENT VISA INVESTIGATION

Consultant charged in student visa scheme

INDIAN STUDENTS EYE CANADA

This is very interesting and positive, but students need to guard against "agents" who may promise shortcuts to the visa process. Also, some colleges are not necessarily the most reputable ones, so buyer beware.


Indian students turn to Canada following Australian backlash - thestar.com


Indian students turn to Canada following Australian backlash

December 12, 2010

Rick Westhead


NEW DELHI—Vipin Sehajpal has worked for the past two years at a call centre on the outskirts of India’s capital, helping frustrated Dell computer owners solve technical problems.

But when he connects with a caller from Canada, the 26-year-old pauses before dispensing advice to pose a few questions of his own.

“I mostly ask about the weather, food and what life is like,” Sehajpal says.

It’s knowledge he plans to put to use in a few weeks.

Barring last-minute problems, Sehajpal will be leaving India in late December to enroll in a two-year website design course at Lambton College in Sarnia.

His pursuit of a Canadian education highlights a growing trend in India.

While Canada for years was regarded of as a sad-sack afterthought by India’s brightest college-aged students, that perception is changing fast. The number of Indian college and university students studying in Canada has surged fourfold over the past three years.

Canadian diplomats say they expect to issue student visas to as many as 14,000 Indian students this year and perhaps more than 20,000 in 2011.

In 2008, Canada approved just 3,152 visas to Indian students.

The increase comes as Canadian schools strengthen ties in India, which is among the world’s most promising markets for international students and higher education. Nearly one-third of India’s 1.2 billion population is under the age of 15 and the country’s 300 million strong middle class is expected to grow 10 times by 2025.

At the same time, the Canadian government has pledged to triple two-way trade with India to $15 billion over the next three years and adding international students will help. A recent Canadian government study showed the average international student adds $25,000 to the local economy.

David Manicom, a diplomat who heads the immigration department at Canada’s mission in New Delhi, said he was flummoxed when a group of Canadian university presidents recently toured India and spoke publicly about their efforts to coax Ottawa to increase its $1 million global budget for marketing post-secondary education. Australia, university officials pointed out, spends $20 million a year.

“The truth is that we’ve already come a long way in a very short time,” Manicom said. “The perception is that we’re trailing Australia still but that couldn’t be father from the truth.”

Manicom said there are several reasons for the dramatic increase.

For starters, unlike some other Western countries, many foreign college and university students who study in Canada gain credit towards becoming a permanent resident.

But Manicom and Canadian college officials say an overhaul of Canada’s student visa program is more responsible for the turnabout. For the past two years, the Canadian mission in New Delhi has partnered with 38 Canadian colleges to create the so-called Student Partners Program.

Under the program, colleges work more closely with the Canadian mission to understand which students will likely be approved for visas.

For instance, schools now insist students submit grades from the International English Language Testing System, or IELTS, which is run by a British group. In past years, students would provide results from a number of less reputable English proficiency testing agencies.

The mission also demands students provide financial guarantees from chartered Indian banks.

“We had cases where a student would say they had an uncle with fields of rice paddy who was willing to promise to cover their school costs and other instances where families had the value of their gold assessed as proof of their financial wherewithal,” Manicom said. “It was totally unreliable.”

Manicom said the high commission is also working more closely with schools to winnow out immigration agents who recruit under-qualified students.

Since the student visa program’s overhaul two years ago, the approval rate for Indian students applying to Centennial College has climbed to 87 per cent from 37 per cent and the number of Indian students at the Toronto school has climbed to 1,400 from 350.

“In past years, the biggest complaint we had was that it took too long for students to have their visas processed, but it’s much less cumbersome now,” said Virginia Macciavello, an official with Centennial.

Canada is also making inroads in India thanks to a public relations disaster for Australia’s educators.

While Australia has drawn more than 90,000 Indian students annually in recent years (the U.S. attracts about 105,000 Indian overseas students a year), the number of students here applying for visas to Australia has plunged by 80 per cent, Western diplomats say.

Over the past two years, Indian media have furiously chased stories about racial attacks on Indian students in Australia. There were 14 attacks during one five-week stretch in 2009, with TV channels running incendiary headlines such as “Curry Bashing” and “Australia, Land of Racists.”

Manicom conceded that Canadian officials “watched what was happening with Australia and we knew there would be some backwash.”

But Macciavello said she isn’t worried about a similar imbroglio in Canada.

“We’ve been recruiting overseas students for 30 years and we just haven’t seen any problems like that,” she said. “Canada’s just much more multicultural.”

Canadian schools also demand high IELTS test score, sometimes as high as 6.5 out of 9, to root out less qualified students who might drop out for a grey-market job. Some schools in the U.K., by contrast, demand a 4.5 IELTS score, meaning students would probably struggle to understand classes taught in English.

On a recent afternoon, Sehajpal and several other potential students crowded into an immigration agent Bhagirath Bhardwaj’s office in the heart of New Delhi.

Bhardwaj, who is paid a commission of about $150 for every student he sends abroad, said Canada is becoming a much more popular destination for students from the Indian capital region.

“I think there’s an understanding here that the Canadian economy is outperforming others and there’s a real opportunity there,” Bhardwaj.

“Immigrants have a real chance in Canada because you have such an aging population. The average Canadian is 44, which the average American is 34 and the average Indian is 26.”

Aayezah Jameel, a 30-year-old single mother, said she’s been researching Canadian schools for the past year and is now saving up, with the hopes of traveling to Canada for studies in the spring of 2012.

“When you’re a mother, planning like this takes time, nothing happens fast,” she said. “It’s a big commitment and a big deal for me because I’ll be asking my mother in Bhopal to watch my daughter for me while I’m overseas.”

Jameel, whose English was flawless, said considered schools like U.C.L.A. and the University of Texas before shifting her gaze to Canada.

“There’s really no difference with Canadian schools except they cost less,” she said. “The faculty and curriculum are just as good. I know. I’ve checked.”

Sitting next to his mother, Sehajpal, who also has a computer science degree from Agra University, said his parents forbid him from going to school in Australia. Instead, he considered schools in the U.S. and U.K. and Canada.

“Canada has a bright future and I’m excited about the possibility of staying there after school for a job,” Sehajpal said. “I’ve never seen snow before. What’s that like?”

CHINESE STUDENTS SHUN AUSTRALIA

China enrolments in free-fall The Australian

China enrolments in free-fall

Michael Sainsbury, China correspondent
From: The Australian November 17, 2010 12:00AM Increase

AUSTRALIA is facing an "abyss" of falling enrolments from China.
This comes as the risk-averse market takes in news of yet another tightening of study-linked immigration rules.

Education agents, who account for at least 80 per cent of student applications to overseas universities, are concerned the latest changes by Labor in the past 12 months discriminate against the undergraduate and feeder courses that make up at least 50 per cent of the Chinese market.

"The situation is the most severe it has been in past 20 years," Li Ping, chief executive of Aoji, one of China's biggest education agents, said.

"Universities from the US, Britain and Canada are developing market shares rapidly, but Australian immigration regulations are not having a positive effect."

Mr Li said compared to last year, enrolments for 2010 from China have declined by as much as 40 per cent. "I'm afraid a further downfall of 10 even to 20 per cent might now occur for next year," Mr Li said.

"If this momentum is not stopped, the Australian educational market will drop to an abyss, with a slim hope of getting out of it."

Agents and university representatives in China are also worried that tougher new English requirements will spook the risk-averse Chinese, sending students to rival countries.

"The new English requirements are incredibly severe, even I don't know if I could pass it, it's a major issue," said one Australian tertiary education representative who asked not to be named.

The new immigration rules came as clear evidence emerges that more welcoming policies instituted by the US in the past 18 months are winning Chinese students at Australia's expense.

Chinese student enrolments in the US have surged, increasing 30 per cent to 128,000 and represent more than 18 per cent of the total international student population in the country.

This makes China the No.1 source of international students in the US higher education system for the first time, according to a report released by the Washington-based Institute of International Education.

In China, at least 80 per cent of foreign student places are sold by government-approved third-party agents. Marketers from international universities and colleges train counsellors at the agents' offices in how to sell their courses.

Counsellors then meet students and try to find the institutions that will be the best fit, taking into account students' various educational and immigration needs, as well as their academic abilities and available funds.

In general, agents devote particular counsellors to certain countries or regions, depending upon demand. As demand changes, for instance the recent surge in preference towards study in the US, agents train more counsellors to sell courses into certain territories. Such decisions on staff training and resourcing are medium-term business decisions and influence where students are encouraged to go.

The HES has learned a number of leading agents have been moving staff from selling courses in Australia to selling courses in the US and Canada.

Additional reporting: Zhang Yufei