VISITOR VISA DENIED TO FILIPINO TO VISIT AILING MOTHER

A visa officer has discretion to deny a Temporary Resident Visa to as  long as reasons are intelligible. In the case below, the officer appears to have considered the applicant's mother condition and the medical reports, but nevertheless reached the conclusion that the applicant would attempt to remain in Canada as there was little incentive for him to return to the Philippines.

Azarcon v. Canada (Minister of Citizenship and Immigration)

Between
Erick Jade Azarcon, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 685

2015 FC 675

Docket: IMM-4723-14

 Federal Court
Toronto, Ontario

Zinn J.

Heard: May 21, 2015.
Judgment: May 25, 2015.

(11 paras.)

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JUDGMENT AND REASONS

1     ZINN J.:-- The applicant asks the court to set aside a decision of a visa officer denying him a temporary resident visa to visit his mother in Canada. He submits that he was denied procedural fairness because the decision's reasons are inadequate and the decision is unreasonable because the officer misconstrued or ignored evidence. For the reasons that follow, the court must dismiss this application.

2     The applicant is a citizen of the Philippines. He sought a six month temporary resident visa in order to come to Canada to support and care for his mother, Juliet Azarcon, who lives in Canada. Ms. Azarcon is a caregiver and is in the processes of obtaining permanent residence. She was in a car accident and suffers from various injuries.

3     The visa officer rejected the application as he or she was not satisfied that the applicant would leave Canada after his stay as a temporary resident. This decision was stated to have been based on the applicant's travel history, family ties in Canada and country of residence, limited employment prospects in country of residence, current employment situation, personal assets and financial status.

4     The Visa Officer's notes, which constitute the reasons for the decision, state:

·       NO FOSS RECORD. 28 Y/O MALE. VISTING MOTHER FOR SIX MONTHS. MOTHER FIGURED IN A CAR ACCIDENT IN NOV 2013. MED CERT SEEN. MOTHER SUFFERS FROM DEPRESSION AND PTSD. SUSTAINED SOME INJURIES AND UNDERGOING PHYSICAL THERAPY. SHE HAS SOME PHYSICAL LIMITATIONS BUT IS ABLE TO PERFORM BASIC SELF-CARE FUNCTIONS LIKE DRESSING UP, EATING, GOING TO THE BATHROOM. MOTHER ON A WP AS LCP. HAS NO FAMILY IN CDA. CURRENTLY RECEIVING DISABILITY BENEFITS. SUBJ HAS NO PREV OVERSEAS TRAVEL. RUNS A SMALL INTERNET SHOP. NO PROOF OF BUSINESS INCOME. MODEST FUNDS WITH NO DEPOSIT HISTORY. UNMARRIED, NO DECLARED DEPS. HAS A NURSING DEGREE. I HAVE CAREFULLY CONSIDERED ALL INFO ON FILE, PARTICULARLY THE SITUATION OF SUBJ'S MOTHER IN CDA. HOWEVER, SUBJ PRESENTS VERY WEAK TIES IN THE PHILS (NO TRAVEL, LOW FUNDS, SOURCE OF INCOME). ALSO HAS STRONG ECONOMIC INCENTIVES TO REMAIN IN CDA. ON BALANCE, I AM NOT SATISFIED THAT SUBJ WILL LEAVE CDA BY THE END OF AUTHORIZED STAY. 

5     I am unable to agree with the applicant that these reasons are not sufficiently intelligible or transparent for him and the court to be able to determine whether the decision is or is not reasonable. The ultimate question the officer had to address was whether the applicant would return to the Philippines after visiting Canada to care for his mother.

6     The duty on a visa officer to provide reasons is at the low end of the scale. The question the court must ask is whether the reasons are such that the applicant knows why his application was rejected. In my view, they meet that standard. The officer noted that the applicant has weak ties to the Philippines. The information summarized by the officer concerning the applicant's personal ties to the Philippines is accurate. The officer does not mention that the applicant has a sibling and a father in the Philippines; however, it is not incumbent on an officer to recite every fact in the application, especially when, as here, there is no evidence that these relationships would be a strong draw to return to the Philippines and leave a mother in Canada who may still require his care. The applicant knows from the reasons given that the officer concluded that he had weak ties to the Philippines.

7     The applicant also knows that the officer knew and understood his reason for wishing to visit his mother in Canada -- namely, to care for her. He submits that the officer ignored or misconstrued evidence as to the mother's condition and her need for his care.

8     In my assessment, the officer's summary of the mother's condition is a fair and reasonable summary of the medical evidence tendered by the applicant. In particular, the observation that "she has some physical limitations but is able to perform basic self-care functions" is a fair and reasonable characterization of that evidence. The attendant care evaluation in the record shows that very little time is required for level 3 care -- "complex health/care hygiene functions." Most of the care required is in supervising or the patient or in providing "routine personal care." The officer's summary is thus reasonable.

9     The applicant also objects to the officer's statement that he "has strong economic incentives" to remain in Canada. He submits that it is impossible to know what incentives the officer was referring to in the notes. In my view, the officer's observation is not without some merit. Ms. Azarcon is in receipt of disability income and there is a medical report in the record that states that she should be in receipt of attendant care benefit, which the applicant could presumably provide given his nursing background, of $7,840.11 per month. The conclusion that he would have a financial incentive to overstay his visa is reasonable.

10     In summary, although the ultimate decision may have been otherwise based on the record, the court cannot find that the result reached by this officer was unreasonable. Nor can the court find that the officer's reasons were lacking in detail such that they were unintelligible or lacking in transparency.

11     Neither party proposed a question for certification; nor is there one.

JUDGMENT

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

ZINN J

MASSIVE FRAUD SCHEME TARGETTING FILIPINOS ALLEGED, ARREST MADE

http://www.ctvnews.ca/canada/filipinos-among-victims-targeted-in-1-5m-immigration-scam-toronto-police-1.2221835#
http://www.ctvnews.ca/canada/filipinos-among-victims-targeted-in-1-5m-immigration-scam-toronto-police-1.2221835#

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.

STEEP FINE IMPOSED FOR HIRING UNDOCUMENTED FOREIGN WORKERS

See story below. Employers must be reminded that hiring foreign workers requires that the appropriate documentation be obtained prior to the workers commencing employment.

Company fined $12,000 in illegal worker bust - Canada - Canoe.ca

Company fined $12,000 in illegal worker bust

By JAMES TURNER, QMI Agency

Arnisito Gaviola. (QMI Agency, files)

WINNIPEG -- A Manitoba company at the heart of a high-profile immigration debacle that led to the deportation of three hard-working Filipino men affectionately dubbed the "Three Amigos" pleaded guilty and fined $12,000 for breaking Canadian immigration-protection laws.
5896941 Manitoba Limited -- operating as a Shell gas station in Thompson, Man. -- pleaded guilty last week before provincial court Judge Tim Preston to counts of misrepresentation and employing illegal foreign workers under the Immigration and Refugee Protection Act.
Preston fined the company $12,000.
"The potential for abuse is so huge, I think a message has to be sent," Preston said in passing sentence.
The station's owner, Adnan Chaudhary, was in court for the hearing.
Preston was given what was described as a "voluminous" statement of facts regarding the Canada Border Services Agency's investigation in the case, but none were read into the court record.
Migrant workers Antonio Laroya, Arnisito Gaviola and Ermie Zotomayor were deported in May 2011 to their native Philippines and ordered excluded from returning to Canada for at least a year despite a groundswell of public and some political support to try and keep them here.
In June 2010, the three men were arrested and pulled from their jobs at the Shell station after accusations arose they were employed there illegally.
The trio arrived in Canada in 2007 under a federal temporary foreign worker program and paid a recruiter to find them jobs at a gas station in Alberta.
After being laid off and their work permits close to expiring, they got low-paying jobs at the Shell station in Thompson.
The men testified at an immigration hearing their new employer told them he was working to try and complete required documentation and put them to work immediately.
Employers must secure a labour market opinion (LMO) from the federal government before applying for a work permit for foreign workers.
A LMO assesses whether or not the jobs offered can be filled by Canadians.
The men said their employer told them to start work before securing a LMO.
Their efforts to fight the immigration system in court ultimately failed and they were kicked out.
Community members rallied around the men, with many signing petitions to the immigration minister and offering all manner of donations -- cash, shelter and legal services -- in the hopes of them being able to remain.

PHILIPPINES LABOUR MINISTER WARNS AGAINST CANADA MIGRATION SCAMS

Philippines labour Minister warns against scams peddling non-existent jobs in Canada.


Baldoz warns of scam on Canada jobs | Inquirer Global Nation

PHILIPPINE IMMIGRATION TO CANADA SCAM REVEALED

Another scam offering high paying jobs and immigration to Canada has surfaced. Advise to applicants: hire a lawyer, service costs money, and nothing is free.

DFA warns vs. Canada immigration scam | GMA News Online | The Go-To Site for Filipinos Everywhere

DFA warns vs. Canada immigration scam

March 29, 2012 5:30pm

Filipinos who plan to find work or settle in Canada were warned against bogus websites claiming to be affiliated with official Canadian government websites.

The Philippine Department of Foreign Affairs (DFA) said these websites sometimes use the Canada wordmark or Citizenship and Immigration Canada (CIC) logo.

Such sites offer dubious special immigration deals or high-paying jobs for a fee but with no tangible results, the DFA said in a news release.

"The DFA wishes to inform the public that the only people who may charge a fee to represent or advise people in connection with a Canadian immigration proceeding or application are authorized immigration consultants, lawyers, Quebec notaries, and paralegals regulated by a law society," it said.

The DFA also said there is no "immigration consultant" website affiliated with the Canadian government.

"If you are suspicious about a website, do a web search to see if anyone has reported any problems with that site.

Do not pay for offers of guaranteed entry to Canada or faster processing of your application. These claims are false," it said.

The DFA also noted the CIC recently launched a multilingual advertising campaign warning prospective immigrants, permanent residents and Canadian citizens not to be taken in by crooked immigration consultants.

It includes a short video warning people not to be duped into committing marriage fraud.

A video directs people to a special page on the CIC website to find out how to immigrate to Canada "the right way."

CIC also encourages everyone to report immigration fraud by calling the Border Watch Tip Line at 1-888-502-9060 begin_of_the_skype_highlighting 1-888-502-9060 end_of_the_skype_highlighting.

Under Canada's immigration programs, all people are treated equally, whether they hire someone to represent them or not.

The DFA said the CIC and the Competition Bureau offer the following advice on how to avoid becoming a victim of immigration fraud:

• Be wary of websites advertised in unsolicited e-mails from strangers and do not give out personal information unless you know who you are dealing with.

• Before hiring an immigration representative, do your homework: ask for a referral from someone you trust, check their credentials, and discuss the services they will offer.

• For information on how to choose an immigration representative, one may visit CIC's website.

— VVP, GMA News