This is the type of incompetence that makes immigration lawyers crazy! See this Toronto Star story.
Toronto man accidentally mailed box of immigration applications - thestar.com
Toronto man accidentally mailed box of immigration applications
March 17, 2011
Amy Dempsey
A Toronto man says he was the accidental recipient of a box full of protected immigration applications packed with personal information belonging to eight people from Cuba and their Canadian sponsors.
Bruce Messner’s jaw dropped when he sliced open the big brown box that arrived at his home in North York on Wednesday.
“I was completely flabbergasted,” Messner said. “There is so much private information in there that can be misused.”
Messner, who is sponsoring his Cuban partner to come to Canada, discovered his own application package at the top. Underneath were eight other folders thick with photos, medical records, copies of birth certificates, credit card statements and other personal information.
Right away, Messner said he called the Citizenship and Immigration Canada call centre. He figured someone would be sent over immediately to collect the documents. But the CIC employee he spoke with “didn’t seem to be concerned at all,” Messner said.
The agent asked him if he wouldn’t mind mailing the box back to the CIC processing centre in Mississauga or dropping it off at the nearest immigration office.
“I figured somebody would do something,” said Messner. “If you give something to the government you would hope they would safeguard your info and get it to where it’s supposed to go.”
And so the box sat in his dining room until Thursday afternoon, when officials picked it up after the Star called to inquire about the mistake.
“CIC takes such breaches of privacy seriously and has already taken action by reporting this to our corporate security officials and will further investigate with the courier company why this incident occurred,” CIC spokeswoman Kelli Fraser said on Thursday.
CIC also said it will review its call centre operations to ensure calls about personal information are brought to the immediate attention of supervisors.
Messner said he mailed his sponsorship package to the CIC processing centre in Mississauga in early February. Then last Friday he got a call from a man who identified himself as an employee of the courier company TNT Express.
Messner said the man told him he had been trying to deliver a package to a Montreal address, but the person or people at the address refused to sign for it.
“There was an attempted delivery over here in Montreal at a government institution where it was not accepted,” said Nelson Da Silva, the TNT courier who was to deliver the box.
Da Silva said he couldn’t send it back to where it came from because there was no origin address on the package. Hoping to do a good deed, he then opened the box and called the first number he found in the documents at the top.
TNT spokeswoman Dina Ghram said it was actually the people at the Montreal address who opened the package and called TNT back when they realized they weren’t the proper recipients.
It is against TNT policy for employees to open packages. Ghram said TNT continues to investigate the incident.
Messner, who thought the box only contained his own sponsorship package, told Da Silva to send it back to him.
CIC officials told Messner they would expedite his application package to make up for the delay in processing.
“This sounds like a huge mistake, not a little one,” said Toronto immigration lawyer Lorne Waldman.
“I would hope the government does a fulsome investigation to find out how this happened so it doesn’t happen again.”
Friday, March 18, 2011
Thursday, March 17, 2011
ARRANGED MARRIAGE COLLAPSES AT AIRPORT
See this shocking story below from the Toronto Star. it seems to me somewhat strange that she had no idea of the sponsorship withdrawal. However, it is possible given cultural norms in the community. In any event, it seems a bit unusual that she was not told of the situation before travelling, I have seen cases in my office where people who knew that the sponsor had withdrawn the application, travelled anyway to take advantage of the residency, not realizing that is was no longer valid once the sponsorship was withdrawn. On occasion a relative counselled the travel, under the mistaken belief that the applicant could obtain residency nonetheless. There appears to be something missing from this story...
Pakistani bride dumped at Toronto airport - thestar.com
Pakistani bride dumped at Toronto airport
March 16, 2011
Nicholas Keung
A Pakistani woman claims she arrived in Toronto with a permanent resident visa only to find out from border officials that her spousal sponsorship had been annulled.
Aisha Noor, 23, said she was told her husband, Owais Qurni, a Canadian citizen, intended to file for divorce and had notified immigration officials to cancel the sponsorship.
“I was shocked,” said Noor, who came from an established family in Peshawar, where her father owns a construction company. “We both were very happy with this (arranged) marriage and that’s why he applied for my visa. He never discussed divorce.”
Canadian officials at Pearson airport seized Noor’s visa upon her arrival March 4. They gave her a temporary visitor’s permit, but she must leave the country on a scheduled flight Sunday.
In an email to the Star, Qurni, 22, blamed the mess on the institution of arranged marriage.
“We are absolutely different people and are not compatible for each other. Our marriage would not have worked out due to these reasons and differences,” he wrote.
“I really do regret obliging to this arranged marriage set up by my parents. I respected my parents and therefore, respected their decision as well. However, I have realized that this is my life and I have to make my own decision.”
Qurni notified Canada’s visa post in Islamabad in a letter on Feb. 22. He said his father most recently spoke with Noor’s father on March 1, three days before her flight to Canada, about the divorce and the sponsorship cancellation.
Noor, who has two degrees from the University of Peshawar, said she was introduced to Qurni, a university student, in April 2008 and began their courtship over the phone and Internet.
Not until their wedding night at Noor’s grandfather’s house on Aug. 15, 2009 did they meet in person. Three days later, the newlywed groom flew back to Toronto.
“I was very happy and excited as my dreams of living with my spouse were coming true,” said Noor, who got her permanent resident visa in January.
Although Noor and Qurni talked often, Noor insisted they never spoke about a divorce. But she knew something was up when she told Qurni of her arrival and he discouraged her from coming.
Noor said she ignored the warning, flew to Toronto and called Qurni at the airport. Qurni refused to meet her and Noor was picked up by a family friend, Shakeel Habib.
Noor said her father later told her Qurni’s family had demanded $50,000 from her family and threatened divorce.
“(The) accusation of my demand of $50,000 from her family is preposterous. It does not make any sense for me to take money from her because I am still responsible for her undertaking,” Qurni wrote.
“It deeply saddens me that Ms. Aisha Noor would go to such extent to fabricate lies and frame me with false accusations.”
Habib, Noor’s family friend in Toronto, was the middleman who visited Qurni’s family home here three years ago to make the marriage arrangement.
“That’s not good in our society,” said Habib, who has known Noor’s father for 40 years. “Once you get married, you don’t get divorced. Nobody accepts it in our society.”
Said Noor: “I’m least interested in immigration (to Canada), but I want justice. He has ruined my life.”
According to Citizenship and Immigration Canada, a sponsorship can be withdrawn at any point of the process. Border officials can refuse permanent status to a sponsored individual as long as a sponsor expresses the intent not to fulfill the obligations. Sponsors are not obliged to provide reasons.
Pakistani bride dumped at Toronto airport - thestar.com
Pakistani bride dumped at Toronto airport
March 16, 2011
Nicholas Keung
A Pakistani woman claims she arrived in Toronto with a permanent resident visa only to find out from border officials that her spousal sponsorship had been annulled.
Aisha Noor, 23, said she was told her husband, Owais Qurni, a Canadian citizen, intended to file for divorce and had notified immigration officials to cancel the sponsorship.
“I was shocked,” said Noor, who came from an established family in Peshawar, where her father owns a construction company. “We both were very happy with this (arranged) marriage and that’s why he applied for my visa. He never discussed divorce.”
Canadian officials at Pearson airport seized Noor’s visa upon her arrival March 4. They gave her a temporary visitor’s permit, but she must leave the country on a scheduled flight Sunday.
In an email to the Star, Qurni, 22, blamed the mess on the institution of arranged marriage.
“We are absolutely different people and are not compatible for each other. Our marriage would not have worked out due to these reasons and differences,” he wrote.
“I really do regret obliging to this arranged marriage set up by my parents. I respected my parents and therefore, respected their decision as well. However, I have realized that this is my life and I have to make my own decision.”
Qurni notified Canada’s visa post in Islamabad in a letter on Feb. 22. He said his father most recently spoke with Noor’s father on March 1, three days before her flight to Canada, about the divorce and the sponsorship cancellation.
Noor, who has two degrees from the University of Peshawar, said she was introduced to Qurni, a university student, in April 2008 and began their courtship over the phone and Internet.
Not until their wedding night at Noor’s grandfather’s house on Aug. 15, 2009 did they meet in person. Three days later, the newlywed groom flew back to Toronto.
“I was very happy and excited as my dreams of living with my spouse were coming true,” said Noor, who got her permanent resident visa in January.
Although Noor and Qurni talked often, Noor insisted they never spoke about a divorce. But she knew something was up when she told Qurni of her arrival and he discouraged her from coming.
Noor said she ignored the warning, flew to Toronto and called Qurni at the airport. Qurni refused to meet her and Noor was picked up by a family friend, Shakeel Habib.
Noor said her father later told her Qurni’s family had demanded $50,000 from her family and threatened divorce.
“(The) accusation of my demand of $50,000 from her family is preposterous. It does not make any sense for me to take money from her because I am still responsible for her undertaking,” Qurni wrote.
“It deeply saddens me that Ms. Aisha Noor would go to such extent to fabricate lies and frame me with false accusations.”
Habib, Noor’s family friend in Toronto, was the middleman who visited Qurni’s family home here three years ago to make the marriage arrangement.
“That’s not good in our society,” said Habib, who has known Noor’s father for 40 years. “Once you get married, you don’t get divorced. Nobody accepts it in our society.”
Said Noor: “I’m least interested in immigration (to Canada), but I want justice. He has ruined my life.”
According to Citizenship and Immigration Canada, a sponsorship can be withdrawn at any point of the process. Border officials can refuse permanent status to a sponsored individual as long as a sponsor expresses the intent not to fulfill the obligations. Sponsors are not obliged to provide reasons.
Tuesday, March 15, 2011
NEW CITIZENSHIP GUIDE RELEASED
New citizens to study gay rights, equality,values
New citizens to study gay rights, equality,values
Carmen Chai, Postmedia News · Mar. 15, 2011 Last Updated: Mar. 15, 2011 4:10 AM ET
Canada's citizenship study guide will feature new emphasis on Canada's democratic principles, recognition that gay and lesbian couples can marry and state that forced marriage is not tolerated in the country, Immigration and Multiculturalism Minister Jason Kenney announced Monday.
At a citizenship ceremony in Vancouver for 45 new Canadians, Mr. Kenney outlined several changes to Discover Canada, the country's study guide for preparing for citizenship tests.
"We expect people who want to become Canadians to have a good understanding of their rights and responsibilities and the values and institutions that are rooted in Canada's history," he said. "The guide is being read by a wide variety of people from citizenship applicants to students and families. And it has sparked a national conversation about who we are as Canadians."
The changes include:
? A new pullout box called "Becoming Canadian," which emphasizes that a newcomer has a responsibility to embrace Canadian democratic principles and that past experiences in warfare or conflict do not justify bringing violent, extreme or hateful prejudices to Canada.
? Recognition that gay and lesbian Canadians enjoy the full protection of and equal treatment under the law, including access to civil marriage.
? The addition of forced marriage among the practices that are not tolerated in Canada.
? Additions to the section on the War of 1812, which celebrates its bicentennial next year. The section has been expanded to include more context on the conflict and its importance in shaping Canada.
? A revamped "Modern Canada" section including new headings, more content about trade and economic growth and more examples of Canada's outstanding cultural figures.
He said the guide, which was originally launched on Nov. 12, 2009, after a panel of Canadian public figures, authors and historians were consulted, touches on Canadians' common values, such as freedom, democracy, human rights and equality of men and women.
Additional questions will be added to the citizenship test to reflect the new information added to the study manual.
NDP immigration critic Olivia Chow called on the government to reinstate sections on gay history and rights in the citizenship guide when she introduced a motion to the House of Commons last year.
"For once, the Conservative government is listening," she told Postmedia News Monday.
"Immigrants coming into the country came here partially because of Canadian values that we're very proud of. I would have put in more description of how Canada is based on medicare, sharing and compassion," she said.
Earlier this year, Mr. Kenney announced that Canada welcomed a record number of immigrants in 2010, with more than 280,000 newcomers entering the country, the highest number in more than 50 years.
About 280,600 new perma-nent residents came to Canada in 2010, which is about 6% more than the expected 240,000 to 265,000 new permanent residents, preliminary data showed.
The minister has been under fire for a letter out of his office calling on Conservative riding associations to donate $200,000 to the party's efforts to target "very ethnic ridings." The letter was printed on Mr. Kenney's MP letterhead.
New citizens to study gay rights, equality,values
Carmen Chai, Postmedia News · Mar. 15, 2011 Last Updated: Mar. 15, 2011 4:10 AM ET
Canada's citizenship study guide will feature new emphasis on Canada's democratic principles, recognition that gay and lesbian couples can marry and state that forced marriage is not tolerated in the country, Immigration and Multiculturalism Minister Jason Kenney announced Monday.
At a citizenship ceremony in Vancouver for 45 new Canadians, Mr. Kenney outlined several changes to Discover Canada, the country's study guide for preparing for citizenship tests.
"We expect people who want to become Canadians to have a good understanding of their rights and responsibilities and the values and institutions that are rooted in Canada's history," he said. "The guide is being read by a wide variety of people from citizenship applicants to students and families. And it has sparked a national conversation about who we are as Canadians."
The changes include:
? A new pullout box called "Becoming Canadian," which emphasizes that a newcomer has a responsibility to embrace Canadian democratic principles and that past experiences in warfare or conflict do not justify bringing violent, extreme or hateful prejudices to Canada.
? Recognition that gay and lesbian Canadians enjoy the full protection of and equal treatment under the law, including access to civil marriage.
? The addition of forced marriage among the practices that are not tolerated in Canada.
? Additions to the section on the War of 1812, which celebrates its bicentennial next year. The section has been expanded to include more context on the conflict and its importance in shaping Canada.
? A revamped "Modern Canada" section including new headings, more content about trade and economic growth and more examples of Canada's outstanding cultural figures.
He said the guide, which was originally launched on Nov. 12, 2009, after a panel of Canadian public figures, authors and historians were consulted, touches on Canadians' common values, such as freedom, democracy, human rights and equality of men and women.
Additional questions will be added to the citizenship test to reflect the new information added to the study manual.
NDP immigration critic Olivia Chow called on the government to reinstate sections on gay history and rights in the citizenship guide when she introduced a motion to the House of Commons last year.
"For once, the Conservative government is listening," she told Postmedia News Monday.
"Immigrants coming into the country came here partially because of Canadian values that we're very proud of. I would have put in more description of how Canada is based on medicare, sharing and compassion," she said.
Earlier this year, Mr. Kenney announced that Canada welcomed a record number of immigrants in 2010, with more than 280,000 newcomers entering the country, the highest number in more than 50 years.
About 280,600 new perma-nent residents came to Canada in 2010, which is about 6% more than the expected 240,000 to 265,000 new permanent residents, preliminary data showed.
The minister has been under fire for a letter out of his office calling on Conservative riding associations to donate $200,000 to the party's efforts to target "very ethnic ridings." The letter was printed on Mr. Kenney's MP letterhead.
Monday, March 14, 2011
COMPANY DISPUTE WITH IMMIGRATION SHOULD BE HANDLED DIFFERENTLY
This is the wrong way to handle a dispute with immigration. The company needs a good immigration lawyer to assist them.
Company threatens to leave Canada over immigration headache Toronto & GTA News Toronto Sun
Company threatens to leave Canada over immigration headache
By TOM GODFREY, Toronto Sun
Last Updated: March 13, 2011 4:57pm
One of the country’s oldest companies, a 133-year-old firm that makes high-security products, is considering moving south of the border because of a dispute with Immigration Canada.
Lockwood Industries, of Burlington — a producer and supplier of fire-grade goods such as fastening devices and locks — has been fighting with Ottawa for more than six months to bring two skilled workers to Canada for two weeks to install newly purchased state-of-the-art equipment.
Company president Edward Milic said his firm, which was formed in 1878, has spent years and millions of dollars to design, order and transport the custom-made equipment from China.
“We are not asking for money or favours,” he said. “We are asking the government to allow in our experts so they can train our staff.“
The equipment is designed to shape metal for some of the 4,000 products manufactured by Lockwood, Milic said.
The firm can’t accept new manufacturing contracts and has had to lay off five workers, leaving the company with 30 employees, he said.
“We are laying off people when we have enough work to hire more,” Milic complained. “We are trying desperately to get someone’s attention so we can get some help.”
If the Chinese technicians are not allowed into the country soon, the iconic Canadian firm will move to the U.S. or Mexico, he said.
“We have had offers from different U.S. states and we have to do something soon,” he said from his 14,000-square-metre plant, on Corporate Dr.
The machinery includes electrical panels and a 31-metre assembly line.
Much of the firm’s output is sold to the U.S. military or to meet required changes to buildings due to anti-terror laws, Milic said.
He has phoned his local MP and Immigration Minister Jason Kenney for help without luck.
The technicians were twice refused visas after officials at the Canadian embassy in Beijing contacted their employer, he said.
The visa officials suspect the men may not return home, Milic said, adding he has offered to post a bond to ensure their return.
Federal immigration spokesman Douglas Kellam said it is common practice for workers to be admitted to Canada for installing equipment.
“Persons entering Canada from countries that are not visa exempt must obtain a visitor’s visa and must be deemed admissible by the visa officer,” Kellam said by e-mail.
“Our mission (embassy) in Beijing is being diligent in assessing the applications for these two workers and the visa officer has concerns over the admissibility of the two.”
Kellam said he privacy laws prevented him from discussing specifics of the applications.
Company threatens to leave Canada over immigration headache Toronto & GTA News Toronto Sun
Company threatens to leave Canada over immigration headache
By TOM GODFREY, Toronto Sun
Last Updated: March 13, 2011 4:57pm
One of the country’s oldest companies, a 133-year-old firm that makes high-security products, is considering moving south of the border because of a dispute with Immigration Canada.
Lockwood Industries, of Burlington — a producer and supplier of fire-grade goods such as fastening devices and locks — has been fighting with Ottawa for more than six months to bring two skilled workers to Canada for two weeks to install newly purchased state-of-the-art equipment.
Company president Edward Milic said his firm, which was formed in 1878, has spent years and millions of dollars to design, order and transport the custom-made equipment from China.
“We are not asking for money or favours,” he said. “We are asking the government to allow in our experts so they can train our staff.“
The equipment is designed to shape metal for some of the 4,000 products manufactured by Lockwood, Milic said.
The firm can’t accept new manufacturing contracts and has had to lay off five workers, leaving the company with 30 employees, he said.
“We are laying off people when we have enough work to hire more,” Milic complained. “We are trying desperately to get someone’s attention so we can get some help.”
If the Chinese technicians are not allowed into the country soon, the iconic Canadian firm will move to the U.S. or Mexico, he said.
“We have had offers from different U.S. states and we have to do something soon,” he said from his 14,000-square-metre plant, on Corporate Dr.
The machinery includes electrical panels and a 31-metre assembly line.
Much of the firm’s output is sold to the U.S. military or to meet required changes to buildings due to anti-terror laws, Milic said.
He has phoned his local MP and Immigration Minister Jason Kenney for help without luck.
The technicians were twice refused visas after officials at the Canadian embassy in Beijing contacted their employer, he said.
The visa officials suspect the men may not return home, Milic said, adding he has offered to post a bond to ensure their return.
Federal immigration spokesman Douglas Kellam said it is common practice for workers to be admitted to Canada for installing equipment.
“Persons entering Canada from countries that are not visa exempt must obtain a visitor’s visa and must be deemed admissible by the visa officer,” Kellam said by e-mail.
“Our mission (embassy) in Beijing is being diligent in assessing the applications for these two workers and the visa officer has concerns over the admissibility of the two.”
Kellam said he privacy laws prevented him from discussing specifics of the applications.
Sunday, March 13, 2011
IMMIGRATION FRAUD IN CHANDIGARH
Report from the Times of India:
Spate of immigration frauds in city
TNN
Mar 13, 2011, 01.04am IST
CHANDIGARH: The dream to fly off-shore is costing people dear in the city. Going by the police records, Chandigarh is becoming a hub of immigration frauds. As many as 20 cases of cheating on the pretext of sending innocent persons abroad have been registered during the past two months.
Records available with the police reveal that in most cases agents duped residents of Punjab, Haryana and Himachal Pradesh on the pretext of sending them to Canada, US, Australia, UK and other western countries.
The most recent victim of the fraud was Vikrant Singh of Gurdaspur district in Punjab who was cheated out of being sent to Australia. Police sources said a Sector 44-resident Ravi Kiran Singh had taken Rs 6 lakh from Vikrant to send him to Australia. Neither was Vikrant sent abroad nor was his money returned to him. Police registered a case against the accused on Saturday.
On February 22, 2011, cops arrested a Sector 38-resident couple for cheating Krishan Kumar, a resident of Panipat district on the pretext of sending him to the USA. The accused Sanjeev Kumar and his wife Anuradha had taken Rs 3.46 lakh from the victim but never fulfilled the deal
Spate of immigration frauds in city
TNN
Mar 13, 2011, 01.04am IST
CHANDIGARH: The dream to fly off-shore is costing people dear in the city. Going by the police records, Chandigarh is becoming a hub of immigration frauds. As many as 20 cases of cheating on the pretext of sending innocent persons abroad have been registered during the past two months.
Records available with the police reveal that in most cases agents duped residents of Punjab, Haryana and Himachal Pradesh on the pretext of sending them to Canada, US, Australia, UK and other western countries.
The most recent victim of the fraud was Vikrant Singh of Gurdaspur district in Punjab who was cheated out of being sent to Australia. Police sources said a Sector 44-resident Ravi Kiran Singh had taken Rs 6 lakh from Vikrant to send him to Australia. Neither was Vikrant sent abroad nor was his money returned to him. Police registered a case against the accused on Saturday.
On February 22, 2011, cops arrested a Sector 38-resident couple for cheating Krishan Kumar, a resident of Panipat district on the pretext of sending him to the USA. The accused Sanjeev Kumar and his wife Anuradha had taken Rs 3.46 lakh from the victim but never fulfilled the deal
Friday, March 11, 2011
LANGUAGE TESTS: WHAT HAPPENS WHEN THE SCORE IS LOW?
This case us quite unique: an applicant who scored poorly on an IELTS ( International English Language Testing Service) advised an officer that he was taking a second test to in prove the score. However, the visa officer refused the application before the second test score was available. The officer also took the language factor into account to deny the applicant points for adaptability. The court ordered the case to be re-adjudicated.
While this result is good for the applicant in the case, I doubt it is correct in law: there is no duty by a visa officer to delay a decision until an applicant improves an IELTS score. In fact,. under IRPA, the IELTS score is conclusive as to an applicant's language ability, and since the IELTS must be presented as part of the initial application package to constitute a "complete application" within the meaning of the legislation, it is incumbent upon an applicant to present ALL the relevant evidence in advance of the filing.
APPLICANTS SHOULD NEVER RELY ON A VISA OFFICER TO REQUEST A DOCUMENT THAT IS ESSENTIAL TO THE APPLICATION, OR TO GIVE THEM AN OPPORTUNITY TO IMPROVE A TEST SCORE. That is not only foolish, but also not what the law requires. The law mandates that all documents be presented at the time of application, INCLUDING IELTS passing scores.
Applicants are cautioned not to rely on this decision to fail to provide a passing IELTS score, and should ALWAYS consult AND retain an immigration lawyer BEFORE filing an application to avoid problems.
Grewal v. Canada (Minister of Citizenship and Immigration)
Between
Mandeep Kaur Grewal, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 211
2011 FC 167
Docket IMM-2517-10
Federal Court
Vancouver, British Columbia
Noël J.
Heard: February 3, 2011.
Judgment: February 11, 2011.
(17 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 NOËL J.:-- Mandeep Kaur Grewal, the Applicant, seeks judicial review of a decision dated February 3, 2010, in which an Immigration Officer at the Canadian High Commission in New Dehli, India, refused the Applicant permanent residence in Canada. Leave was granted by Justice Mosley on November 5, 2010.
2 The Applicant put forth her application for permanent residence under the skilled worker class, pursuant to subsection 12(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). The minimum requirements for the evaluation are set out at sections 75 and 76 of the Immigration and Refugee Protection Regulations, SOR 2002/227 ("IRPR"). Generally, the criteria are age, education, experience, arranged employment, adaptability and proficiency in Canada's official languages.
3 The Applicant takes issue with the evaluation of language proficiency. The Immigration Officer awarded a total of 63 points for the application. Two (2) points were assessed under the Official language proficiency, and none were awarded under the arranged employment category. The Applicant did have arranged employment in Canada as a Retail Trade Manager, but the Immigration Officer was of the opinion that she would not be able to perform the required duties as she did not have sufficient language skills. Basically, the Immigration Officer assessed the Applicant's IETLS scores to conclude on both language proficiency and arranged employment.
4 The Applicant puts forward a case that hinges on the fairness of her treatment by the Immigration Officer. She also alleges issues pertaining to the sufficiency of the Officer's reasons, as well as the exercise of the Officer's residual discretion under section 76(3) of IRPA. The Court will only take issue with the first element, that of the procedural fairness of the process undertaken by the Immigration Officer.
5 It is clear that questions of procedural fairness are to be reviewed on the standard of correctness, and this remains true in the context of decisions by Immigration Officers (Dunsmuir v. New Brunswick, 2008 SCC 9; Khan v. Canada (Citizenship and Immigration), 2009 FC 1312; Alam v. Canada (Citizenship and Immigration), 2008 FC 419). In this case, there is evidence to support the Applicant's contention that procedural fairness was breached.
6 While it is true that the Applicant's IETLS test results were not sufficient for the Immigration Officer to award her more points, there was evidence before the Officer that the Applicant was to undertake a second examination to better her results. Her poor results were allegedly caused by health reasons. The information forwarded by the Applicant's immigration consultant was clear in this respect. Furthermore, it was noted that a second examination was to take place and that the results would be forwarded as soon as they were available.
7 It appears that the Officer decided before these second test results were not forwarded. However, the Immigration Officer had other evidence to bolster the claim that the poor test results were due to bad health. The Applicant studied for many years and alleges that she used English in the course of her employment and coursework. As such, the Officer knew that further test results were pending or needed to be submitted.
8 More importantly, not only did the Officer use the poor IETLS scores to make a finding on language proficiency, these were also used as a basis to not award any points under the Arranged Employment criterion, despite evidence that employment was confirmed. In turn, this had repercussions on the Adaptability criterion. The language proficiency assessment was a determination that had a great impact on the application, not least of which on the Arranged Employment criterion.
9 In this respect, the OP6 Manual - Federal Skilled Workers is relevant. While this manual is not binding on the officer, it does provide guidance and orientation in the determinations to be made. One such guideline in regards to Arranged Employment is as follows:
• Officers may take into account the applicant's education and training, background, and prior work experience to determine if the applicant meets this requirement. If they have any concerns about the applicant's ability or likelihood to accept and carry out the employment, they will communicate these to the applicant and provide the opportunity to respond. (emphasis added)
10 The Immigration Officer's reasons clearly relate such a concern, as the Applicant's IETLS test results were the sole basis of the determination of the absence of Arranged Employment, as well as the Language Proficiency requirement. While it is true that the OP6 Manual is not binding, the following comment from Justice Heneghan in Hernandez v. Canada (Minister of Citizenship and Immigration), 2004 FC 1398 is relevant, even if it pertains to a different aspect of the OP6 Manual:
• The Manual purports to assist a visa officer in assessing an application and although without the force of law, it merits some attention. In this regard, the above-cited provision of that Manual requires a visa officer to give an applicant the opportunity to supply missing documentation concerning settlement funds if they do not initially meet that criteria. (emphasis added)
11 The finding related to Language Proficiency was determinative of the application. It had direct import on the Language Proficiency factor, the Arranged Employment factor, and consequently, on the Adaptability factor. The consequences of the finding in regards to language proficiency are within the 20-30 point range. Despite this finding, the Applicant fell short by four points, as she is highly educated (Master's degree), is within a reasonable age and has experience, which is clear from her 63-point evaluation.
12 Evidently, the Language Proficiency requirement is central to the linguistic objectives of IRPA (see paragraphs 3(b) and 3(b.1) of the IRPA). This Court's Judgment should not be interpreted to lesson the value of linguistic factors in assessing permanent residency requirements, all the contrary. In this respect, the Court does not retain the Applicant's argument that her arranged employment required other languages in which she was proficient in, namely Hindi and Punjabi, and that this was to be considered. The Language Proficiency criterion pertains to Canada's official languages (see subparagraph 76(1)(a)(ii) of the IRPR). Proficiency in other languages, while laudable, is simply not relevant within the requirements for permanent residency under the skilled worker class.
13 The Applicant's statements and educational background could reasonably infer some knowledge of English. When this is considered with the claims of poor health when taking the IETLS test, it seems as though the Immigration Officer's decision to adjudicate the matter without a fairness letter or an interview is unreasonable, especially as the Officer knew that a second IETLS test was to follow. Surely, procedural fairness calls for further inquiry by the Officer in such a case, through a letter or an interview.
14 The case is not as in Al Turk v. Canada (Citizenship and Immigration), 2008 FC 1396, where no notice was given to the Officer that another English examination was to be taken. Here, there was a notice. Also, the Court disagrees with the Respondent's reading of El Habet v. Canada (Citizenship and Immigration), 2009 FC 776, as the matter is wholly different than the case at bar, as Mr. El Habet did not take issue with his IETLS test results and relied on other grounds for his application.
15 Although in the context of a work permit application, Justice Beaudry's comments in Li v. Canada (Citizenship and Immigration), 2008 FC 1284, at para 35 are on point when he stated that:
• There is no statutory right to an interview (Ali v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7681 (F.C.), (1998) 151 F.T.R. 1, 79 A.C.W.S. (3d) 140 at paragraph 28). However, procedural fairness requires that an Applicant be given the opportunity to respond to an officer's concerns under certain circumstances. When no extrinsic evidence is relied on, it is unclear when it is necessary to afford an Applicant an interview or a right to respond. Yet, the jurisprudence suggests that there will be a right to respond under certain circumstances.
16 It is clear that assessing the breadth of procedural fairness in a case must be adapted to the context in which it arises (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). In this case, where a manual provided clear guidance that more information should be sought, where one finding on language proficiency derailed the whole claim for permanent residence and where there was evidence that another test was to be taken, it seems that procedural fairness should have extended to an interview or a fairness letter. The record is not clear as to why the second IETLS test result was not brought forward, and this test result is not part of the Tribunal Record. It is clear there is a reciprocal obligation on the part of the Applicant and the Officer to ensure all the information is accounted for and brought forth diligently, which in this case may have been lacking on the part of both Parties.
17 In a case such as this, this Court finds that immigration policy must be meaningfully addressed. This implies that the matter be sent for redetermination, as the Applicant could be found to be well above the passing score of 67 for permanent residence. As such, the application for judicial review is granted. No question for certification arises.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is granted and the matter shall be returned to a different Visa Officer for a new, complete determination. No question is certified.
NOËL J.
While this result is good for the applicant in the case, I doubt it is correct in law: there is no duty by a visa officer to delay a decision until an applicant improves an IELTS score. In fact,. under IRPA, the IELTS score is conclusive as to an applicant's language ability, and since the IELTS must be presented as part of the initial application package to constitute a "complete application" within the meaning of the legislation, it is incumbent upon an applicant to present ALL the relevant evidence in advance of the filing.
APPLICANTS SHOULD NEVER RELY ON A VISA OFFICER TO REQUEST A DOCUMENT THAT IS ESSENTIAL TO THE APPLICATION, OR TO GIVE THEM AN OPPORTUNITY TO IMPROVE A TEST SCORE. That is not only foolish, but also not what the law requires. The law mandates that all documents be presented at the time of application, INCLUDING IELTS passing scores.
Applicants are cautioned not to rely on this decision to fail to provide a passing IELTS score, and should ALWAYS consult AND retain an immigration lawyer BEFORE filing an application to avoid problems.
Grewal v. Canada (Minister of Citizenship and Immigration)
Between
Mandeep Kaur Grewal, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 211
2011 FC 167
Docket IMM-2517-10
Federal Court
Vancouver, British Columbia
Noël J.
Heard: February 3, 2011.
Judgment: February 11, 2011.
(17 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 NOËL J.:-- Mandeep Kaur Grewal, the Applicant, seeks judicial review of a decision dated February 3, 2010, in which an Immigration Officer at the Canadian High Commission in New Dehli, India, refused the Applicant permanent residence in Canada. Leave was granted by Justice Mosley on November 5, 2010.
2 The Applicant put forth her application for permanent residence under the skilled worker class, pursuant to subsection 12(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). The minimum requirements for the evaluation are set out at sections 75 and 76 of the Immigration and Refugee Protection Regulations, SOR 2002/227 ("IRPR"). Generally, the criteria are age, education, experience, arranged employment, adaptability and proficiency in Canada's official languages.
3 The Applicant takes issue with the evaluation of language proficiency. The Immigration Officer awarded a total of 63 points for the application. Two (2) points were assessed under the Official language proficiency, and none were awarded under the arranged employment category. The Applicant did have arranged employment in Canada as a Retail Trade Manager, but the Immigration Officer was of the opinion that she would not be able to perform the required duties as she did not have sufficient language skills. Basically, the Immigration Officer assessed the Applicant's IETLS scores to conclude on both language proficiency and arranged employment.
4 The Applicant puts forward a case that hinges on the fairness of her treatment by the Immigration Officer. She also alleges issues pertaining to the sufficiency of the Officer's reasons, as well as the exercise of the Officer's residual discretion under section 76(3) of IRPA. The Court will only take issue with the first element, that of the procedural fairness of the process undertaken by the Immigration Officer.
5 It is clear that questions of procedural fairness are to be reviewed on the standard of correctness, and this remains true in the context of decisions by Immigration Officers (Dunsmuir v. New Brunswick, 2008 SCC 9; Khan v. Canada (Citizenship and Immigration), 2009 FC 1312; Alam v. Canada (Citizenship and Immigration), 2008 FC 419). In this case, there is evidence to support the Applicant's contention that procedural fairness was breached.
6 While it is true that the Applicant's IETLS test results were not sufficient for the Immigration Officer to award her more points, there was evidence before the Officer that the Applicant was to undertake a second examination to better her results. Her poor results were allegedly caused by health reasons. The information forwarded by the Applicant's immigration consultant was clear in this respect. Furthermore, it was noted that a second examination was to take place and that the results would be forwarded as soon as they were available.
7 It appears that the Officer decided before these second test results were not forwarded. However, the Immigration Officer had other evidence to bolster the claim that the poor test results were due to bad health. The Applicant studied for many years and alleges that she used English in the course of her employment and coursework. As such, the Officer knew that further test results were pending or needed to be submitted.
8 More importantly, not only did the Officer use the poor IETLS scores to make a finding on language proficiency, these were also used as a basis to not award any points under the Arranged Employment criterion, despite evidence that employment was confirmed. In turn, this had repercussions on the Adaptability criterion. The language proficiency assessment was a determination that had a great impact on the application, not least of which on the Arranged Employment criterion.
9 In this respect, the OP6 Manual - Federal Skilled Workers is relevant. While this manual is not binding on the officer, it does provide guidance and orientation in the determinations to be made. One such guideline in regards to Arranged Employment is as follows:
• Officers may take into account the applicant's education and training, background, and prior work experience to determine if the applicant meets this requirement. If they have any concerns about the applicant's ability or likelihood to accept and carry out the employment, they will communicate these to the applicant and provide the opportunity to respond. (emphasis added)
10 The Immigration Officer's reasons clearly relate such a concern, as the Applicant's IETLS test results were the sole basis of the determination of the absence of Arranged Employment, as well as the Language Proficiency requirement. While it is true that the OP6 Manual is not binding, the following comment from Justice Heneghan in Hernandez v. Canada (Minister of Citizenship and Immigration), 2004 FC 1398 is relevant, even if it pertains to a different aspect of the OP6 Manual:
• The Manual purports to assist a visa officer in assessing an application and although without the force of law, it merits some attention. In this regard, the above-cited provision of that Manual requires a visa officer to give an applicant the opportunity to supply missing documentation concerning settlement funds if they do not initially meet that criteria. (emphasis added)
11 The finding related to Language Proficiency was determinative of the application. It had direct import on the Language Proficiency factor, the Arranged Employment factor, and consequently, on the Adaptability factor. The consequences of the finding in regards to language proficiency are within the 20-30 point range. Despite this finding, the Applicant fell short by four points, as she is highly educated (Master's degree), is within a reasonable age and has experience, which is clear from her 63-point evaluation.
12 Evidently, the Language Proficiency requirement is central to the linguistic objectives of IRPA (see paragraphs 3(b) and 3(b.1) of the IRPA). This Court's Judgment should not be interpreted to lesson the value of linguistic factors in assessing permanent residency requirements, all the contrary. In this respect, the Court does not retain the Applicant's argument that her arranged employment required other languages in which she was proficient in, namely Hindi and Punjabi, and that this was to be considered. The Language Proficiency criterion pertains to Canada's official languages (see subparagraph 76(1)(a)(ii) of the IRPR). Proficiency in other languages, while laudable, is simply not relevant within the requirements for permanent residency under the skilled worker class.
13 The Applicant's statements and educational background could reasonably infer some knowledge of English. When this is considered with the claims of poor health when taking the IETLS test, it seems as though the Immigration Officer's decision to adjudicate the matter without a fairness letter or an interview is unreasonable, especially as the Officer knew that a second IETLS test was to follow. Surely, procedural fairness calls for further inquiry by the Officer in such a case, through a letter or an interview.
14 The case is not as in Al Turk v. Canada (Citizenship and Immigration), 2008 FC 1396, where no notice was given to the Officer that another English examination was to be taken. Here, there was a notice. Also, the Court disagrees with the Respondent's reading of El Habet v. Canada (Citizenship and Immigration), 2009 FC 776, as the matter is wholly different than the case at bar, as Mr. El Habet did not take issue with his IETLS test results and relied on other grounds for his application.
15 Although in the context of a work permit application, Justice Beaudry's comments in Li v. Canada (Citizenship and Immigration), 2008 FC 1284, at para 35 are on point when he stated that:
• There is no statutory right to an interview (Ali v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7681 (F.C.), (1998) 151 F.T.R. 1, 79 A.C.W.S. (3d) 140 at paragraph 28). However, procedural fairness requires that an Applicant be given the opportunity to respond to an officer's concerns under certain circumstances. When no extrinsic evidence is relied on, it is unclear when it is necessary to afford an Applicant an interview or a right to respond. Yet, the jurisprudence suggests that there will be a right to respond under certain circumstances.
16 It is clear that assessing the breadth of procedural fairness in a case must be adapted to the context in which it arises (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). In this case, where a manual provided clear guidance that more information should be sought, where one finding on language proficiency derailed the whole claim for permanent residence and where there was evidence that another test was to be taken, it seems that procedural fairness should have extended to an interview or a fairness letter. The record is not clear as to why the second IETLS test result was not brought forward, and this test result is not part of the Tribunal Record. It is clear there is a reciprocal obligation on the part of the Applicant and the Officer to ensure all the information is accounted for and brought forth diligently, which in this case may have been lacking on the part of both Parties.
17 In a case such as this, this Court finds that immigration policy must be meaningfully addressed. This implies that the matter be sent for redetermination, as the Applicant could be found to be well above the passing score of 67 for permanent residence. As such, the application for judicial review is granted. No question for certification arises.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is granted and the matter shall be returned to a different Visa Officer for a new, complete determination. No question is certified.
NOËL J.
Thursday, March 10, 2011
ANONYMOUS LETTER A FACTOR IN CITIZENSHIP REFUSAL
In the case below, the court held that there was sufficient disclosure of an anonymous "poison pen" letter that questioned the applicant's residency in Canada. Even if there had not been, the reasons by the Citizenship judge were only based in part on that letter and therefore withstood Judaical review.
Qureshi v. Canada (Minister of Citizenship and Immigration)
Mohammad Ibrahim Qureshi (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
[2010] 4 F.C.R. 256
[2010] 4 R.C.F. 256
[2009] F.C.J. No. 1335
[2009] A.C.F. no 1335
2009 FC 1081
Nos. T-620-07, T-620-07
Federal Court
Near J.
Heard: Toronto, September 9, 2009;
Judgment: Ottawa, October 26, 2009.
(38 paras.)
Summary:
This was an appeal, pursuant to subsection 14(5) of the Citizenship Act, of a decision made by a Citizenship Judge denying the applicant's application for Canadian citizenship. The Citizenship Judge found the central issue to be whether [page257] the applicant had accumulated at least three years of residence in Canada within the four years immediately preceding his citizenship application, pursuant to the residency requirements in paragraph 5(1)(c) of the Act. In her reasons, the Citizenship Judge expressed concerns regarding the veracity of the applicant's residency in Canada.
The issues were: (1) whether the Citizenship Judge failed to observe the principles of procedural fairness, and (2) whether the Citizenship Judge erred in fact and in law in finding that the applicant did not meet the residency requirements under the Act.
Held, the appeal should be dismissed.
The applicant submitted that because the Citizenship Judge based her decision, in part, on an anonymous letter and that it was not fully disclosed, she breached a rule of natural justice. A high level of procedural fairness must inform a Citizenship Judge's decision-making process. While the case law on the extent of disclosure necessary to uphold the principles of procedural fairness is unsettled, generally, it shows that an applicant must be given an opportunity to respond to matters raised in extrinsic evidence such as anonymous letters. The non-disclosure of anonymous communications that are prejudicial to an applicant in the immigration context has generally been considered to be a breach of procedural fairness, particularly when officers have relied on them in their decision-making process.
The applicant was owed disclosure of the contents of the anonymous letter on which the Citizenship Judge relied upon in order to respond to the allegations contained within it. However, because the Citizenship Judge did disclose the contents of the letter, and the applicant was given an opportunity to address any allegations it may have contained, he was not entitled to receive a copy of the actual letter. The disclosure requirements were fulfilled and procedural fairness was not breached.
With regard to the second issue, it was clear from the Citizenship Judge's reasons that she applied the physical presence test and found the applicant's evidence lacking. In some instances, the statements and inconsistencies in various documents were relatively minor but it was open to the Citizenship Judge to find that, taken as a whole, they supported her finding that the applicant was not credible with respect to fulfilling the onus to show that he was present in Canada for the required period of time. The Citizenship Judge's conclusion was reasonable based on the evidence before her.
[page258]
Statutes and Regulations Cited
Citizenship Act, R.S.C., 1985, c. C-29, ss. 5(1) (as am. by S.C. 2001, c. 27, s. 228), (4), 14(1) (as am. by S.C. 2008, c. 14, s. 10), (5),(6), 15(1).
Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 21 (as am. idem, s. 30).
Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 300(c).
Cases Cited
Applied:
Chen v. Canada (Minister of Citizenship and Immigration), 2004 FC 1693.
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577.
Chowdhury v. Canada (Minister of Citizenship and Immigration), 2009 FC 709, 82 Imm. L.R. (3d) 1, 347 F.T.R. 76.
Sadykbaeva v. Canada (Minister of Citizenship and Immigration), 2008 FC 1018, 74 Imm. L.R. (3d) 283, 336 F.T.R. 51.
Considered:
Edobor v. Canada (Minister of Citizenship and Immigration), 2007 FC 883, 65 Imm. L.R. (3d) 199.
Canada (Minister of Citizenship and Immigration) v. Mueller, 2005 FC 227.
Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, (1990), 69 D.L.R. (4th) 489, [1990] W.W.R. 289.
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193, 14 Admin. L.R. (3d) 173.
Redman v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 120 (F.C.T.D.).
Karakulak v. Canada (Minister of Citizenship and Immigration) (1996), 119 F.T.R. 288 (F.C.T.D.).
Dasent v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 720.
D'Souza v. Canada (Minister of Citizenship and Immigration), 2008 FC 57, 321 F.T.R. 315.
Liu v. Canada (Minister of Citizenship and Immigration), 2008 FC 1253, 76 Imm. L.R. (3d) 261.
Canada (Minister of Citizenship and Immigration) v. Navarrete, 2006 FC 691, 294 F.T.R. 242.
Referred to:
Farshchi v. Canada (Minister of Citizenship and Immigration), 2007 FC 487.
Tulupnikov v. Canada (Minister of Citizenship and Immigration), 2006 FC 1439.
Tshimanga [page259] v. Canada (Minister of Citizenship and Immigration), 2005 FC 1579.
Canada (Minister of Citizenship and Immigration) v. Wall, 2005 FC 110, 45 Imm. L.R. (3d) 32, 271 F.T.R. 146.
Zeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1752.
Rasaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 1688.
Gunnarsson v. Canada (Minister of Citizenship and Immigration), 2004 FC 1592, 43 Imm. L.R. (3d) 204.
Karic v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 52, 145 F.T.R. 308 (F.C.T.D.).
Shah v. Canada (Minister of Employment and Immigration) (1994), 29 Imm. L.R. (2d) 82, 81 F.T.R. 320, 170 N.R. 238 (F.C.A.).
Ray v. Canada (Minister of Citizenship and Immigration), 2006 FC 731.
Rizvi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1641.
History and Disposition:
APPEAL pursuant to subsection 14(5) of the Citizenship Act from the decision of a Citizenship Judge denying the applicant's citizenship application. Appeal dismissed.
The following are the reasons for judgment and judgment rendered in English by
1 NEAR J.:-- This is an appeal made pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29; section 21 [as am. by S.C. 2002, c. 8, s. 30] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. idem, s. 14)]; and paragraph 300(c) of the Federal Courts Rules, SOR/98-106 [r. 1 (as am. by SOR/2004-283, s. 2)], of a decision made by Citizenship Judge Renata Brum Bozzi, dated February 12, 2007, denying the appellant's application for Canadian citizenship.
• I. Background
[page260]
A. Facts
2 The appellant, Mohammad Ibrahim Qureshi, is a 36-year-old Pakistani citizen. He became a permanent resident of Canada on June 27, 2000. The appellant was later joined by his wife and daughter in 2003. During his time in Canada, the appellant has rented accommodation at three separate addresses. From the date that the appellant entered Canada as a permanent resident through to the date that his citizenship application was refused, he made several trips outside the country, principally to Pakistan, the United Arab Emirates, and the United Kingdom.
3 After landing in Canada, Mr. Qureshi established a sole proprietorship in August 2001 under the name Micro Masters and has rendered services for a local Canadian restaurant called Tandoori Time between 2000-2005. In his residency questionnaire, he submitted that he has also been an active member of the Pakistani community in Canada and volunteers at a local Muslim community organization. His daughter was also registered at a local Islamic school between 2004-2005. Mr. Qureshi has filed income taxes in Canada between 2000-2005.
4 The appellant applied for citizenship on June 27, 2004. On his citizenship application, he declared that he had been absent from Canada for 104 days between June 27, 2000 and June 27, 2004 (the material period).
5 The appellant was later convoked for a hearing before a citizenship judge. This hearing took place on December 15, 2006. The Judge later called the appellant and a phone conversation took place on December 18, 2006. A follow-up meeting was also arranged and took place on January 5, 2007.
6 The Citizenship Judge found the central issue to be whether the appellant had accumulated at least three years of residence in Canada within the four years immediately preceding his citizenship application, pursuant to the residency requirements in paragraph 5(1)(c) [as am. by S.C. 2001, c. 27, s. 228] of the Citizenship Act (see Annex).
[page261]
B. Decision of Citizenship Judge
7 In her reasons, the Citizenship Judge expressed concerns regarding the veracity of Mr. Qureshi's residency in Canada. She stated: "Taken as a whole, a) the contradictions on the residence questionnaire, b) the inconsistencies at the hearing, during the telephone conversation and at the follow-up meeting, c) the insufficiency of tangible evidence of residency during the material period and d) the anonymous letter, all serve to challenge the truthfulness of the applicant's residency". She pointed out that the onus falls on the applicant to demonstrate that "he was in Canada for three of four years of his material time period", and that Mr. Qureshi has failed to do this on the balance of probabilities. The Judge also noted that the evidence does not demonstrate any special circumstances, and that she therefore declined to use her discretion under subsection 5(4) of the Citizenship Act (see Annex).
• II. Issues
8 Did the Citizenship Judge fail to observe principles of procedural fairness?
9 Did the Citizenship Judge err in fact and in law in finding that the appellant did not meet the residency requirements under paragraph 5(1)(c) of the Citizenship Act?
• III. Standard of Review
A. The appellant's submissions
10 The appellant does not make any submissions as to the standard of review.
B. The respondent's submissions
11 The respondent submitted that the question of whether a person has met the residency requirements under the Citizenship Act is a question of mixed fact and [page262] law. As such, the respondent argued that the appropriate standard of review is reasonableness simpliciter. They added that Federal Court jurisprudence states that under the standard of reasonableness, citizenship judges are owed some deference by virtue of their special degree of knowledge and experience. Therefore, deference should be shown as long as there is a demonstrated understanding of the case law and appreciation of the facts and their applicability to the statutory test.
12 The respondent cited the following cases to support this proposition: Farshchi v. Canada (Minister of Citizenship and Immigration), 2007 FC 487; Tulupnikov v. Canada (Minister of Citizenship and Immigration), 2006 FC 1439; Tshimanga v. Canada (Minister of Citizenship and Immigration), 2005 FC 1579; Canada (Minister of Citizenship and Immigration) v. Wall, 2005 FC 110, 45 Imm. L.R. (3d) 32; Zeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1752; Chen v. Canada (Minister of Citizenship and Immigration), 2004 FC 1693; Rasaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 1688; Gunnarsson v. Canada (Minister of Citizenship and Immigration), 2004 FC 1592, 43 Imm. L.R. (3d) 204.
C. Analysis
13 The respondent's submissions only relate to issue No. 2. The first issue to be addressed concerns a matter of procedural fairness relating to the disclosure of an anonymous letter.
• (1) Procedural fairness-Disclosure of anonymous letter
14 The issue relating to the disclosure of the anonymous letter is one which involves procedural fairness. This Court has held that when dealing with the issue of extrinsic evidence, the judge does not need to engage in an assessment of the appropriate standard of review but should evaluate whether the rules of procedural fairness [page263] have been adhered to: see Edobor v. Canada (Minister of Citizenship and Immigration), 2007 FC 883, 65 Imm. L.R. (3d) 199, at paragraph 23. Procedural fairness raises a question of law, reviewable on a standard of correctness, and, as such, I find the standard applicable to this issue to be one of correctness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
15 In Dunsmuir, above, the Supreme Court of Canada held at paragraph 50 that:
• When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.
• (2) Application of legal test of residency to facts of a particular case
16 The issue of whether a person has met the residency requirements under the Citizenship Act requires the application of a legal test to the facts of a particular case. Therefore, it involves a question of mixed fact and law. The cases cited by the respondent all support this proposition.
17 It is important to note that Justice Judith Snider in Chen, above, pointed out that the Federal Court has, in the past, applied a standard of correctness to decisions made by citizenship judges. However, she went on to state that more recent decisions of this Court have reviewed citizenship appeals on a standard of reasonableness simpliciter. In her later decision of Canada (Minister of Citizenship and Immigration) v. Mueller, 2005 FC 227, Justice Snider noted at paragraph 4 that judgments in respect of the standard of review applicable to citizenship judges' decisions have "coalesced" around the reasonableness standard. Accordingly, she concluded at paragraph 5 of Chen, above, that citizenship judges are "owed some deference by virtue of their special degree of knowledge and experience" and that "as long as there is a demonstrated understanding of the case law and appreciation of the facts and their application to the statutory test, deference should be shown."
[page264]
18 Furthermore, in Chowdhury v. Canada (Minister of Citizenship and Immigration), 2009 FC 709, 82 Imm. L.R. (3d) 1, Justice Max Teitelbaum notes that in Dunsmuir, above, the Supreme Court of Canada held that when a standard of review applicable to a specific issue before the court is well settled in the jurisprudence, a court may adopt that standard of review. As such, the standard of review applicable to this issue is reasonableness.
19 According to the Supreme Court in Dunsmuir, above, reviewing a decision on the standard of reasonableness involves an analysis of "the existence of justification, transparency and intelligibility within the decision-making process." It entails probing "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": see Dunsmuir, above, at paragraph 47.
• IV. Analysis
• A. Did the Citizenship Judge fail to observe principles of procedural fairness?
• (1) The appellant's submissions
20 The appellant submitted that the Citizenship Judge erred in relying on an anonymous letter received with regard to the appellant's absences from Canada. Further, the appellant requested that a copy of the letter be provided to him in order that he be permitted to make a full and complete answer to it.
21 The appellant submitted that because the Citizenship Judge based her decision, in part, on the anonymous letter and its contents, and that the letter was not fully [page265] disclosed, she breached a rule of natural justice: Karic v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 51 (F.C.T.D.).
• (2) The respondent's submissions
22 The respondent did not make any submissions either with regard to the issue of disclosure of the anonymous letter or the issues of natural justice and procedural fairness.
• (3) Analysis
• (a) Content of duty of fairness in citizenship cases
23 In Sadykbaeva v. Canada (Minister of Citizenship and Immigration), 2008 FC 1018, 74 Imm. L.R. (3d) 283, Justice Yves de Montigny held that a high level of procedural fairness must inform a citizenship judge's decision-making process. In coming to this conclusion, he noted that the Supreme Court in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, (1990), 69 D.L.R. (4th) 489, at page 682, advised that "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case." He relied on the subsequent Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193, at paragraph 22 et seq., to determine the content of the duty of fairness in citizenship cases. In Baker, above, the Court developed a list of factors to aid in this assessment: the nature of the decision, the statutory scheme, the importance of the decision to the individual affected, the legitimate expectations of the individual, and the decision maker's choice of procedures. Accordingly, Justice de Montigny held at paragraphs 15-16 that:
• ... a fairly high standard of procedural fairness must inform the decision-making process followed in a citizenship application. I am mindful of the fact that decisions to deny citizenship applications are not final and may be appealed to the Federal Court pursuant to section 14(5) of the Citizenship Act, and that [page266] the discretion bestowed on Citizenship Judges is quite broad and affords them a wide margin of appreciation to decide on proper information gathering procedures.
• That being said, the nature of the decision clearly resembles an adjudication. It is based on facts concerning an individual, which are assessed in light of reasonably objective criteria, and the outcome applies only to the individual party. Moreover, the decision to grant or deny citizenship is obviously of great importance to the applicant as it affects her rights, privileges and responsibilities in this country...
• (b) Breach of procedural fairness in this particular case
24 Having established that a high level of procedural fairness must inform a citizenship judge's decision-making process, it is important to determine whether this duty was breached with respect to the particular facts of this case.
25 In Redman v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 120 (F.C.T.D.), an application for judicial review of a refusal to grant permanent residence based on humanitarian and compassionate grounds, an immigration officer received an anonymous letter which was prejudicial to the applicants. The letter was not disclosed to them, but the immigration officer stated that she did not consider the letter in assessing the applicants' application. Justice Marshall Rothstein, as he then was, held that the immigration officer did not comply with the minimal requirements of procedural fairness applicable to humanitarian and compassionate proceedings prescribed by Shah v. Canada (Minister of Employment and Immigration), (1994), 29 Imm. L.R. (2d) 82 (F.C.A.). Specifically, Justice Rothstein stated at paragraph 4 that:
• When an anonymous letter prejudicial to an applicant is received by an Immigration Officer, such letter must be disclosed. The alternative-non-disclosure discovery by an applicant after a negative decision has been made and then an [page267] assertion by the Immigration Officer that the letter was not relied upon-leads to a perception of unfairness.
26 Further, he added at paragraph 5 that:
• In the immigration context, anonymous prejudicial letters are particularly nasty and offensive. In most cases, the contents of such communications will rightly be disregarded. However, fairness requires that when such potentially damaging information is received it must be disclosed so that an applicant may be satisfied, before a decision is made, that it will be disregarded, or that he or she has had an opportunity to respond to it.
27 This holding is to be contrasted with an earlier decision in Karakulak v. Canada (Minister of Citizenship and Immigration) (1996), 119 F.T.R. 288 (F.C.T.D.), where an application for judicial review of a decision denying permanent resident status based on humanitarian and compassionate grounds was dismissed by the Federal Court. The applicant argued a breach of natural justice stating that he did not receive full disclosure of anonymous letters in the Minister's possession. Justice John Richard, relying on the decisions in Shah and Dasent v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 720, (1994), 87 F.T.R. 282, held [at paragraph 8 of Karakulak ] that "the failure to disclose extrinsic evidence is only said to be a breach of natural justice if it is subsequently relied on by the immigration officer." The Court concluded that there was no evidence that the immigration officer relied on the anonymous letters in their decision. As such, there was no breach of natural justice.
28 Nevertheless, both the approach in Redman, above, and Karakulak, above, support the proposition that a breach of natural justice occurs when an officer fails to disclose extrinsic evidence which is subsequently relied on in their decision. It is clear that, in Mr. Qureshi's case, the Citizenship Judge relied on the anonymous letter in coming to her determination. She explicitly stated as much in her decision.
[page268]
29 The extent of disclosure necessary to uphold principles of procedural fairness is unsettled in the jurisprudence. In D'Souza v. Canada (Minister of Citizenship and Immigration), 2008 FC 57, 321 F.T.R. 315, Justice Sean Harrington held that procedural fairness demanded that an anonymous letter be shown to the individual concerned. The decision involved judicial review of an immigration officer's refusal of an application to sponsor an individual based on humanitarian and compassionate considerations. However, it is important to note that Justice Harrington qualified his findings stating at paragraph 14 that "[i]t is not absolutely mandatory that extrinsic evidence in this form be given to the applicant. In some instances, putting the allegations from the anonymous source to the applicant may be sufficient."
30 Similarly, Justice Rothstein, in his earlier decision in Dasent, above, held at page 731 that "[t]he relevant point as I see it is whether the applicant had knowledge of the information so that he or she had the opportunity to correct prejudicial misunderstandings or misstatements." In Liu v. Canada (Minister of Citizenship and Immigration), 2008 FC 1253, 76 Imm. L.R. (3d) 261, Justice James O'Reilly held at paragraph 13 that "it is open to an officer to disbelieve an applicant, but only after giving the applicant a fair chance to respond to concerns arising from extrinsic sources." Liu, above, involved an application for judicial review of a visa officer's decision denying the applicant a work permit. The visa officer discovered through anonymous tips and an investigation that the applicants were part of an illegal recruitment scheme.
31 In general, therefore, the jurisprudence shows that applicants must be given an opportunity to respond to matters raised in extrinsic evidence such as anonymous letters. The non-disclosure of anonymous communications which are prejudicial to applicants in the immigration context has generally been considered to be a breach of procedural fairness-particularly when officers have relied on them in their decision-making process. Indeed the Court held in Edobor v. Canada (Minister of Citizenship and Immigration), at paragraph 25, that "[t]he [page269] importance of giving notice and providing an opportunity to respond to the evidence is accentuated when the board intends to rely on the evidence to make a decision."
32 Therefore, it is my view that Mr. Qureshi was owed disclosure of the contents of the anonymous letter on which the Citizenship Judge relied so that he was able to respond to the allegations contained within it.
33 In this case, the Citizenship Judge did, in fact, disclose the contents of the letter that were of concern to her and provided an opportunity for Mr. Qureshi to both discuss and refute those areas of concern contained in the letter. I do not accept the proposition that Mr. Qureshi was entitled to receive a copy of the actual letter and have concluded that disclosure of the contents of the letter coupled with the opportunity to address any allegations it may have contained fulfills the disclosure requirements and, as such, find that there was no breach of procedural fairness on the part of the Citizenship Judge.
34 It should be noted, however, that Federal Court jurisprudence has viewed anonymous communications as innately suspect. In D'Souza, above, the Court also noted at paragraph 15 that anonymous letters are "inherently unreliable." The Court relied on holdings in both Canada (Minister of Citizenship and Immigration) v. Navarrete, 2006 FC 691, 294 F.T.R. 242; and Ray v. Canada (Minister of Citizenship and Immigration), 2006 FC 731, in reaching this conclusion. In Navarrete, above, Justice Michel Shore at paragraph 27 held that "[t]he source and the motives as well as the information provided by this type of letter cannot always be verified. Therefore, the information is not necessarily trustworthy." In that case, the Court found that it was reasonable for the Immigration and Refugee Board to refuse to give weight to the information provided in anonymous letters.
• B. Did the Citizenship Judge err in law and in fact in finding that the appellant did not meet the residency [page270] requirements under paragraph 5(1)(c) of the Citizenship Act?
• (1) The appellant's submissions
35 The appellant takes the position that the Citizenship Judge misapprehended or ignored evidence which clearly established Mr. Qureshi's residence in Canada. Specifically, the appellant takes issue with the Citizenship Judge's findings with respect to a number of issues raised in the decision. These include conclusions reached with respect to a lost visa, bank withdrawals, travels to and from Pakistan, residence issues, family medical records, inconsistencies in his residency questionnaire, rental receipts and other matters of concern to the Citizenship Judge.
• (2) The respondent's submissions
36 The respondent submits that the Citizenship Judge did not err in finding that the appellant did not meet the residency requirements under the Citizenship Act. Further, the appellant failed to demonstrate that he was in Canada for three of four years of his material time period.
37 The respondent states that the onus to provide sufficient evidence of residency lies on the appellant, and that he failed to discharge this burden: Rizvi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1641. Overall, the respondent submits that: (1) there were inconsistencies in the appellant's evidence; and (2) the appellant failed to provide sufficient tangible evidence of residency during the material period.
• (3) Analysis
38 It is clear that the Citizenship Judge was highly suspicious of various statements and documentation provided to her by Mr. Qureshi. Ultimately these served to undermine his credibility and the evidence of his presence in Canada during the material period. It was clear from the reasons that the Citizenship Judge applied [page271] the physical presence test and found the appellant's evidence lacking. In some instances the statements and inconsistencies in various documents were relatively minor but in my view, it was open to the Citizenship Judge to find that, taken as a whole, they supported her finding that the appellant was not credible with respect to fulfilling the onus upon him to show that he was present in Canada for the required period of time within the material period. I would not disturb that finding and find that it was a reasonable conclusion based on the evidence before her. I have concluded that the decision of the Citizenship Judge falls "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir, above, at paragraph 47.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
• 1. the appeal is dismissed; and
• 2. there is no order as to costs.
* * * * *
ANNEX
Citizenship Act (R.S.C., 1985, c. C-29)
• Grant of citizenship
• 5. (1) The Minister shall grant citizenship to any person who
• (a) makes application for citizenship;
• (b) is eighteen years of age or over;
• (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:
[page272]
• (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
• (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
• (d) has an adequate knowledge of one of the official languages of Canada;
• (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
• (f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
...
• Special cases
• (4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.
...
Consideration by Citizenship Judge
• 14. (1) An application for
• (a) a grant of citizenship under subsection 5(1) or (5),
• (c) a renunciation of citizenship under subsection 9(1), or
• (d) a resumption of citizenship under subsection 11(1)
[page273]
• shall be considered by a Citizenship Judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
...
• Appeal
• (5) The Minister or the applicant may appeal to the Court from the decision of the Citizenship Judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
• (a) the Citizenship Judge approved the application under subsection (2); or
• (b) notice was mailed or otherwise given under subsection (3) with respect to the application.
• Decision final
• (6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
• Recommendation re use of discretion
• 15. (1) Where a Citizenship Judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.
Qureshi v. Canada (Minister of Citizenship and Immigration)
Mohammad Ibrahim Qureshi (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
[2010] 4 F.C.R. 256
[2010] 4 R.C.F. 256
[2009] F.C.J. No. 1335
[2009] A.C.F. no 1335
2009 FC 1081
Nos. T-620-07, T-620-07
Federal Court
Near J.
Heard: Toronto, September 9, 2009;
Judgment: Ottawa, October 26, 2009.
(38 paras.)
Summary:
This was an appeal, pursuant to subsection 14(5) of the Citizenship Act, of a decision made by a Citizenship Judge denying the applicant's application for Canadian citizenship. The Citizenship Judge found the central issue to be whether [page257] the applicant had accumulated at least three years of residence in Canada within the four years immediately preceding his citizenship application, pursuant to the residency requirements in paragraph 5(1)(c) of the Act. In her reasons, the Citizenship Judge expressed concerns regarding the veracity of the applicant's residency in Canada.
The issues were: (1) whether the Citizenship Judge failed to observe the principles of procedural fairness, and (2) whether the Citizenship Judge erred in fact and in law in finding that the applicant did not meet the residency requirements under the Act.
Held, the appeal should be dismissed.
The applicant submitted that because the Citizenship Judge based her decision, in part, on an anonymous letter and that it was not fully disclosed, she breached a rule of natural justice. A high level of procedural fairness must inform a Citizenship Judge's decision-making process. While the case law on the extent of disclosure necessary to uphold the principles of procedural fairness is unsettled, generally, it shows that an applicant must be given an opportunity to respond to matters raised in extrinsic evidence such as anonymous letters. The non-disclosure of anonymous communications that are prejudicial to an applicant in the immigration context has generally been considered to be a breach of procedural fairness, particularly when officers have relied on them in their decision-making process.
The applicant was owed disclosure of the contents of the anonymous letter on which the Citizenship Judge relied upon in order to respond to the allegations contained within it. However, because the Citizenship Judge did disclose the contents of the letter, and the applicant was given an opportunity to address any allegations it may have contained, he was not entitled to receive a copy of the actual letter. The disclosure requirements were fulfilled and procedural fairness was not breached.
With regard to the second issue, it was clear from the Citizenship Judge's reasons that she applied the physical presence test and found the applicant's evidence lacking. In some instances, the statements and inconsistencies in various documents were relatively minor but it was open to the Citizenship Judge to find that, taken as a whole, they supported her finding that the applicant was not credible with respect to fulfilling the onus to show that he was present in Canada for the required period of time. The Citizenship Judge's conclusion was reasonable based on the evidence before her.
[page258]
Statutes and Regulations Cited
Citizenship Act, R.S.C., 1985, c. C-29, ss. 5(1) (as am. by S.C. 2001, c. 27, s. 228), (4), 14(1) (as am. by S.C. 2008, c. 14, s. 10), (5),(6), 15(1).
Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 21 (as am. idem, s. 30).
Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 300(c).
Cases Cited
Applied:
Chen v. Canada (Minister of Citizenship and Immigration), 2004 FC 1693.
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577.
Chowdhury v. Canada (Minister of Citizenship and Immigration), 2009 FC 709, 82 Imm. L.R. (3d) 1, 347 F.T.R. 76.
Sadykbaeva v. Canada (Minister of Citizenship and Immigration), 2008 FC 1018, 74 Imm. L.R. (3d) 283, 336 F.T.R. 51.
Considered:
Edobor v. Canada (Minister of Citizenship and Immigration), 2007 FC 883, 65 Imm. L.R. (3d) 199.
Canada (Minister of Citizenship and Immigration) v. Mueller, 2005 FC 227.
Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, (1990), 69 D.L.R. (4th) 489, [1990] W.W.R. 289.
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193, 14 Admin. L.R. (3d) 173.
Redman v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 120 (F.C.T.D.).
Karakulak v. Canada (Minister of Citizenship and Immigration) (1996), 119 F.T.R. 288 (F.C.T.D.).
Dasent v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 720.
D'Souza v. Canada (Minister of Citizenship and Immigration), 2008 FC 57, 321 F.T.R. 315.
Liu v. Canada (Minister of Citizenship and Immigration), 2008 FC 1253, 76 Imm. L.R. (3d) 261.
Canada (Minister of Citizenship and Immigration) v. Navarrete, 2006 FC 691, 294 F.T.R. 242.
Referred to:
Farshchi v. Canada (Minister of Citizenship and Immigration), 2007 FC 487.
Tulupnikov v. Canada (Minister of Citizenship and Immigration), 2006 FC 1439.
Tshimanga [page259] v. Canada (Minister of Citizenship and Immigration), 2005 FC 1579.
Canada (Minister of Citizenship and Immigration) v. Wall, 2005 FC 110, 45 Imm. L.R. (3d) 32, 271 F.T.R. 146.
Zeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1752.
Rasaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 1688.
Gunnarsson v. Canada (Minister of Citizenship and Immigration), 2004 FC 1592, 43 Imm. L.R. (3d) 204.
Karic v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 52, 145 F.T.R. 308 (F.C.T.D.).
Shah v. Canada (Minister of Employment and Immigration) (1994), 29 Imm. L.R. (2d) 82, 81 F.T.R. 320, 170 N.R. 238 (F.C.A.).
Ray v. Canada (Minister of Citizenship and Immigration), 2006 FC 731.
Rizvi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1641.
History and Disposition:
APPEAL pursuant to subsection 14(5) of the Citizenship Act from the decision of a Citizenship Judge denying the applicant's citizenship application. Appeal dismissed.
The following are the reasons for judgment and judgment rendered in English by
1 NEAR J.:-- This is an appeal made pursuant to subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29; section 21 [as am. by S.C. 2002, c. 8, s. 30] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. idem, s. 14)]; and paragraph 300(c) of the Federal Courts Rules, SOR/98-106 [r. 1 (as am. by SOR/2004-283, s. 2)], of a decision made by Citizenship Judge Renata Brum Bozzi, dated February 12, 2007, denying the appellant's application for Canadian citizenship.
• I. Background
[page260]
A. Facts
2 The appellant, Mohammad Ibrahim Qureshi, is a 36-year-old Pakistani citizen. He became a permanent resident of Canada on June 27, 2000. The appellant was later joined by his wife and daughter in 2003. During his time in Canada, the appellant has rented accommodation at three separate addresses. From the date that the appellant entered Canada as a permanent resident through to the date that his citizenship application was refused, he made several trips outside the country, principally to Pakistan, the United Arab Emirates, and the United Kingdom.
3 After landing in Canada, Mr. Qureshi established a sole proprietorship in August 2001 under the name Micro Masters and has rendered services for a local Canadian restaurant called Tandoori Time between 2000-2005. In his residency questionnaire, he submitted that he has also been an active member of the Pakistani community in Canada and volunteers at a local Muslim community organization. His daughter was also registered at a local Islamic school between 2004-2005. Mr. Qureshi has filed income taxes in Canada between 2000-2005.
4 The appellant applied for citizenship on June 27, 2004. On his citizenship application, he declared that he had been absent from Canada for 104 days between June 27, 2000 and June 27, 2004 (the material period).
5 The appellant was later convoked for a hearing before a citizenship judge. This hearing took place on December 15, 2006. The Judge later called the appellant and a phone conversation took place on December 18, 2006. A follow-up meeting was also arranged and took place on January 5, 2007.
6 The Citizenship Judge found the central issue to be whether the appellant had accumulated at least three years of residence in Canada within the four years immediately preceding his citizenship application, pursuant to the residency requirements in paragraph 5(1)(c) [as am. by S.C. 2001, c. 27, s. 228] of the Citizenship Act (see Annex).
[page261]
B. Decision of Citizenship Judge
7 In her reasons, the Citizenship Judge expressed concerns regarding the veracity of Mr. Qureshi's residency in Canada. She stated: "Taken as a whole, a) the contradictions on the residence questionnaire, b) the inconsistencies at the hearing, during the telephone conversation and at the follow-up meeting, c) the insufficiency of tangible evidence of residency during the material period and d) the anonymous letter, all serve to challenge the truthfulness of the applicant's residency". She pointed out that the onus falls on the applicant to demonstrate that "he was in Canada for three of four years of his material time period", and that Mr. Qureshi has failed to do this on the balance of probabilities. The Judge also noted that the evidence does not demonstrate any special circumstances, and that she therefore declined to use her discretion under subsection 5(4) of the Citizenship Act (see Annex).
• II. Issues
8 Did the Citizenship Judge fail to observe principles of procedural fairness?
9 Did the Citizenship Judge err in fact and in law in finding that the appellant did not meet the residency requirements under paragraph 5(1)(c) of the Citizenship Act?
• III. Standard of Review
A. The appellant's submissions
10 The appellant does not make any submissions as to the standard of review.
B. The respondent's submissions
11 The respondent submitted that the question of whether a person has met the residency requirements under the Citizenship Act is a question of mixed fact and [page262] law. As such, the respondent argued that the appropriate standard of review is reasonableness simpliciter. They added that Federal Court jurisprudence states that under the standard of reasonableness, citizenship judges are owed some deference by virtue of their special degree of knowledge and experience. Therefore, deference should be shown as long as there is a demonstrated understanding of the case law and appreciation of the facts and their applicability to the statutory test.
12 The respondent cited the following cases to support this proposition: Farshchi v. Canada (Minister of Citizenship and Immigration), 2007 FC 487; Tulupnikov v. Canada (Minister of Citizenship and Immigration), 2006 FC 1439; Tshimanga v. Canada (Minister of Citizenship and Immigration), 2005 FC 1579; Canada (Minister of Citizenship and Immigration) v. Wall, 2005 FC 110, 45 Imm. L.R. (3d) 32; Zeng v. Canada (Minister of Citizenship and Immigration), 2004 FC 1752; Chen v. Canada (Minister of Citizenship and Immigration), 2004 FC 1693; Rasaei v. Canada (Minister of Citizenship and Immigration), 2004 FC 1688; Gunnarsson v. Canada (Minister of Citizenship and Immigration), 2004 FC 1592, 43 Imm. L.R. (3d) 204.
C. Analysis
13 The respondent's submissions only relate to issue No. 2. The first issue to be addressed concerns a matter of procedural fairness relating to the disclosure of an anonymous letter.
• (1) Procedural fairness-Disclosure of anonymous letter
14 The issue relating to the disclosure of the anonymous letter is one which involves procedural fairness. This Court has held that when dealing with the issue of extrinsic evidence, the judge does not need to engage in an assessment of the appropriate standard of review but should evaluate whether the rules of procedural fairness [page263] have been adhered to: see Edobor v. Canada (Minister of Citizenship and Immigration), 2007 FC 883, 65 Imm. L.R. (3d) 199, at paragraph 23. Procedural fairness raises a question of law, reviewable on a standard of correctness, and, as such, I find the standard applicable to this issue to be one of correctness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
15 In Dunsmuir, above, the Supreme Court of Canada held at paragraph 50 that:
• When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.
• (2) Application of legal test of residency to facts of a particular case
16 The issue of whether a person has met the residency requirements under the Citizenship Act requires the application of a legal test to the facts of a particular case. Therefore, it involves a question of mixed fact and law. The cases cited by the respondent all support this proposition.
17 It is important to note that Justice Judith Snider in Chen, above, pointed out that the Federal Court has, in the past, applied a standard of correctness to decisions made by citizenship judges. However, she went on to state that more recent decisions of this Court have reviewed citizenship appeals on a standard of reasonableness simpliciter. In her later decision of Canada (Minister of Citizenship and Immigration) v. Mueller, 2005 FC 227, Justice Snider noted at paragraph 4 that judgments in respect of the standard of review applicable to citizenship judges' decisions have "coalesced" around the reasonableness standard. Accordingly, she concluded at paragraph 5 of Chen, above, that citizenship judges are "owed some deference by virtue of their special degree of knowledge and experience" and that "as long as there is a demonstrated understanding of the case law and appreciation of the facts and their application to the statutory test, deference should be shown."
[page264]
18 Furthermore, in Chowdhury v. Canada (Minister of Citizenship and Immigration), 2009 FC 709, 82 Imm. L.R. (3d) 1, Justice Max Teitelbaum notes that in Dunsmuir, above, the Supreme Court of Canada held that when a standard of review applicable to a specific issue before the court is well settled in the jurisprudence, a court may adopt that standard of review. As such, the standard of review applicable to this issue is reasonableness.
19 According to the Supreme Court in Dunsmuir, above, reviewing a decision on the standard of reasonableness involves an analysis of "the existence of justification, transparency and intelligibility within the decision-making process." It entails probing "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": see Dunsmuir, above, at paragraph 47.
• IV. Analysis
• A. Did the Citizenship Judge fail to observe principles of procedural fairness?
• (1) The appellant's submissions
20 The appellant submitted that the Citizenship Judge erred in relying on an anonymous letter received with regard to the appellant's absences from Canada. Further, the appellant requested that a copy of the letter be provided to him in order that he be permitted to make a full and complete answer to it.
21 The appellant submitted that because the Citizenship Judge based her decision, in part, on the anonymous letter and its contents, and that the letter was not fully [page265] disclosed, she breached a rule of natural justice: Karic v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 51 (F.C.T.D.).
• (2) The respondent's submissions
22 The respondent did not make any submissions either with regard to the issue of disclosure of the anonymous letter or the issues of natural justice and procedural fairness.
• (3) Analysis
• (a) Content of duty of fairness in citizenship cases
23 In Sadykbaeva v. Canada (Minister of Citizenship and Immigration), 2008 FC 1018, 74 Imm. L.R. (3d) 283, Justice Yves de Montigny held that a high level of procedural fairness must inform a citizenship judge's decision-making process. In coming to this conclusion, he noted that the Supreme Court in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, (1990), 69 D.L.R. (4th) 489, at page 682, advised that "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case." He relied on the subsequent Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193, at paragraph 22 et seq., to determine the content of the duty of fairness in citizenship cases. In Baker, above, the Court developed a list of factors to aid in this assessment: the nature of the decision, the statutory scheme, the importance of the decision to the individual affected, the legitimate expectations of the individual, and the decision maker's choice of procedures. Accordingly, Justice de Montigny held at paragraphs 15-16 that:
• ... a fairly high standard of procedural fairness must inform the decision-making process followed in a citizenship application. I am mindful of the fact that decisions to deny citizenship applications are not final and may be appealed to the Federal Court pursuant to section 14(5) of the Citizenship Act, and that [page266] the discretion bestowed on Citizenship Judges is quite broad and affords them a wide margin of appreciation to decide on proper information gathering procedures.
• That being said, the nature of the decision clearly resembles an adjudication. It is based on facts concerning an individual, which are assessed in light of reasonably objective criteria, and the outcome applies only to the individual party. Moreover, the decision to grant or deny citizenship is obviously of great importance to the applicant as it affects her rights, privileges and responsibilities in this country...
• (b) Breach of procedural fairness in this particular case
24 Having established that a high level of procedural fairness must inform a citizenship judge's decision-making process, it is important to determine whether this duty was breached with respect to the particular facts of this case.
25 In Redman v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 120 (F.C.T.D.), an application for judicial review of a refusal to grant permanent residence based on humanitarian and compassionate grounds, an immigration officer received an anonymous letter which was prejudicial to the applicants. The letter was not disclosed to them, but the immigration officer stated that she did not consider the letter in assessing the applicants' application. Justice Marshall Rothstein, as he then was, held that the immigration officer did not comply with the minimal requirements of procedural fairness applicable to humanitarian and compassionate proceedings prescribed by Shah v. Canada (Minister of Employment and Immigration), (1994), 29 Imm. L.R. (2d) 82 (F.C.A.). Specifically, Justice Rothstein stated at paragraph 4 that:
• When an anonymous letter prejudicial to an applicant is received by an Immigration Officer, such letter must be disclosed. The alternative-non-disclosure discovery by an applicant after a negative decision has been made and then an [page267] assertion by the Immigration Officer that the letter was not relied upon-leads to a perception of unfairness.
26 Further, he added at paragraph 5 that:
• In the immigration context, anonymous prejudicial letters are particularly nasty and offensive. In most cases, the contents of such communications will rightly be disregarded. However, fairness requires that when such potentially damaging information is received it must be disclosed so that an applicant may be satisfied, before a decision is made, that it will be disregarded, or that he or she has had an opportunity to respond to it.
27 This holding is to be contrasted with an earlier decision in Karakulak v. Canada (Minister of Citizenship and Immigration) (1996), 119 F.T.R. 288 (F.C.T.D.), where an application for judicial review of a decision denying permanent resident status based on humanitarian and compassionate grounds was dismissed by the Federal Court. The applicant argued a breach of natural justice stating that he did not receive full disclosure of anonymous letters in the Minister's possession. Justice John Richard, relying on the decisions in Shah and Dasent v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 720, (1994), 87 F.T.R. 282, held [at paragraph 8 of Karakulak ] that "the failure to disclose extrinsic evidence is only said to be a breach of natural justice if it is subsequently relied on by the immigration officer." The Court concluded that there was no evidence that the immigration officer relied on the anonymous letters in their decision. As such, there was no breach of natural justice.
28 Nevertheless, both the approach in Redman, above, and Karakulak, above, support the proposition that a breach of natural justice occurs when an officer fails to disclose extrinsic evidence which is subsequently relied on in their decision. It is clear that, in Mr. Qureshi's case, the Citizenship Judge relied on the anonymous letter in coming to her determination. She explicitly stated as much in her decision.
[page268]
29 The extent of disclosure necessary to uphold principles of procedural fairness is unsettled in the jurisprudence. In D'Souza v. Canada (Minister of Citizenship and Immigration), 2008 FC 57, 321 F.T.R. 315, Justice Sean Harrington held that procedural fairness demanded that an anonymous letter be shown to the individual concerned. The decision involved judicial review of an immigration officer's refusal of an application to sponsor an individual based on humanitarian and compassionate considerations. However, it is important to note that Justice Harrington qualified his findings stating at paragraph 14 that "[i]t is not absolutely mandatory that extrinsic evidence in this form be given to the applicant. In some instances, putting the allegations from the anonymous source to the applicant may be sufficient."
30 Similarly, Justice Rothstein, in his earlier decision in Dasent, above, held at page 731 that "[t]he relevant point as I see it is whether the applicant had knowledge of the information so that he or she had the opportunity to correct prejudicial misunderstandings or misstatements." In Liu v. Canada (Minister of Citizenship and Immigration), 2008 FC 1253, 76 Imm. L.R. (3d) 261, Justice James O'Reilly held at paragraph 13 that "it is open to an officer to disbelieve an applicant, but only after giving the applicant a fair chance to respond to concerns arising from extrinsic sources." Liu, above, involved an application for judicial review of a visa officer's decision denying the applicant a work permit. The visa officer discovered through anonymous tips and an investigation that the applicants were part of an illegal recruitment scheme.
31 In general, therefore, the jurisprudence shows that applicants must be given an opportunity to respond to matters raised in extrinsic evidence such as anonymous letters. The non-disclosure of anonymous communications which are prejudicial to applicants in the immigration context has generally been considered to be a breach of procedural fairness-particularly when officers have relied on them in their decision-making process. Indeed the Court held in Edobor v. Canada (Minister of Citizenship and Immigration), at paragraph 25, that "[t]he [page269] importance of giving notice and providing an opportunity to respond to the evidence is accentuated when the board intends to rely on the evidence to make a decision."
32 Therefore, it is my view that Mr. Qureshi was owed disclosure of the contents of the anonymous letter on which the Citizenship Judge relied so that he was able to respond to the allegations contained within it.
33 In this case, the Citizenship Judge did, in fact, disclose the contents of the letter that were of concern to her and provided an opportunity for Mr. Qureshi to both discuss and refute those areas of concern contained in the letter. I do not accept the proposition that Mr. Qureshi was entitled to receive a copy of the actual letter and have concluded that disclosure of the contents of the letter coupled with the opportunity to address any allegations it may have contained fulfills the disclosure requirements and, as such, find that there was no breach of procedural fairness on the part of the Citizenship Judge.
34 It should be noted, however, that Federal Court jurisprudence has viewed anonymous communications as innately suspect. In D'Souza, above, the Court also noted at paragraph 15 that anonymous letters are "inherently unreliable." The Court relied on holdings in both Canada (Minister of Citizenship and Immigration) v. Navarrete, 2006 FC 691, 294 F.T.R. 242; and Ray v. Canada (Minister of Citizenship and Immigration), 2006 FC 731, in reaching this conclusion. In Navarrete, above, Justice Michel Shore at paragraph 27 held that "[t]he source and the motives as well as the information provided by this type of letter cannot always be verified. Therefore, the information is not necessarily trustworthy." In that case, the Court found that it was reasonable for the Immigration and Refugee Board to refuse to give weight to the information provided in anonymous letters.
• B. Did the Citizenship Judge err in law and in fact in finding that the appellant did not meet the residency [page270] requirements under paragraph 5(1)(c) of the Citizenship Act?
• (1) The appellant's submissions
35 The appellant takes the position that the Citizenship Judge misapprehended or ignored evidence which clearly established Mr. Qureshi's residence in Canada. Specifically, the appellant takes issue with the Citizenship Judge's findings with respect to a number of issues raised in the decision. These include conclusions reached with respect to a lost visa, bank withdrawals, travels to and from Pakistan, residence issues, family medical records, inconsistencies in his residency questionnaire, rental receipts and other matters of concern to the Citizenship Judge.
• (2) The respondent's submissions
36 The respondent submits that the Citizenship Judge did not err in finding that the appellant did not meet the residency requirements under the Citizenship Act. Further, the appellant failed to demonstrate that he was in Canada for three of four years of his material time period.
37 The respondent states that the onus to provide sufficient evidence of residency lies on the appellant, and that he failed to discharge this burden: Rizvi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1641. Overall, the respondent submits that: (1) there were inconsistencies in the appellant's evidence; and (2) the appellant failed to provide sufficient tangible evidence of residency during the material period.
• (3) Analysis
38 It is clear that the Citizenship Judge was highly suspicious of various statements and documentation provided to her by Mr. Qureshi. Ultimately these served to undermine his credibility and the evidence of his presence in Canada during the material period. It was clear from the reasons that the Citizenship Judge applied [page271] the physical presence test and found the appellant's evidence lacking. In some instances the statements and inconsistencies in various documents were relatively minor but in my view, it was open to the Citizenship Judge to find that, taken as a whole, they supported her finding that the appellant was not credible with respect to fulfilling the onus upon him to show that he was present in Canada for the required period of time within the material period. I would not disturb that finding and find that it was a reasonable conclusion based on the evidence before her. I have concluded that the decision of the Citizenship Judge falls "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir, above, at paragraph 47.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
• 1. the appeal is dismissed; and
• 2. there is no order as to costs.
* * * * *
ANNEX
Citizenship Act (R.S.C., 1985, c. C-29)
• Grant of citizenship
• 5. (1) The Minister shall grant citizenship to any person who
• (a) makes application for citizenship;
• (b) is eighteen years of age or over;
• (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:
[page272]
• (i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
• (ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
• (d) has an adequate knowledge of one of the official languages of Canada;
• (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
• (f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
...
• Special cases
• (4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.
...
Consideration by Citizenship Judge
• 14. (1) An application for
• (a) a grant of citizenship under subsection 5(1) or (5),
• (c) a renunciation of citizenship under subsection 9(1), or
• (d) a resumption of citizenship under subsection 11(1)
[page273]
• shall be considered by a Citizenship Judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
...
• Appeal
• (5) The Minister or the applicant may appeal to the Court from the decision of the Citizenship Judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
• (a) the Citizenship Judge approved the application under subsection (2); or
• (b) notice was mailed or otherwise given under subsection (3) with respect to the application.
• Decision final
• (6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
• Recommendation re use of discretion
• 15. (1) Where a Citizenship Judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.
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