IMMIGRATION IMPACTING LANGUAGE SKILLS

See the report released by StatsCan and the Globe and Mail article:

New bilingualism taking hold in Canada - The Globe and Mail

FEDERAL COURT CLARIFIES MEANING OF "ORGANIZED CRIMINALITY" UNDER IRPA

The case below is instructive because the court went to great length to differentiate the meaning of "organized criminality" under IRPA and "criminal organizations" membership under the Criminal Code.

Lennon v. Canada (Minister of Public Safety and Emergency Preparedness)


Between

Andrew Allen Lennon Sr., Applicant, and

The Minister of Public Safety and Emergency Preparedness,

Respondent

[2012] F.C.J. No. 1276

2012 FC 1122
Docket IMM-677-12

Federal Court

Toronto, Ontario
Near J.

Heard: September 19, 2012.

Judgment: September 25, 2012.

(22 paras.)
_____________________________


REASONS FOR JUDGMENT AND JUDGMENT

1 NEAR J.:-- The Applicant seeks judicial review of the December 29, 2011 decision of the Immigration Division of the Immigration and Refugee Board ("the Board") by which the Board found the Applicant inadmissible on grounds of organized criminality under paragraph 37(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). A deportation order was issued as a result of this finding.

2 For the reasons that follow, the application for judicial review is dismissed.
• I. Facts

3 The Applicant is a permanent resident who came to Canada in 1966, at the age of 6. He is a citizen of the United Kingdom.

4 On November 17, 2009, the Applicant pled guilty to two criminal offences: possession of the proceeds of crime; and possession for the purpose of trafficking, namely oxycodone. The Applicant was a courier for what the Minister of Public Safety and Emergency Preparedness ("the Minister") identified as a six-person criminal organization, transporting drugs and currency between Ontario and British Columbia. The Applicant made between twelve and fourteen trips between the two provinces in 2007, some of which were for his own benefit.

5 The Applicant was sentenced to an 18-month conditional sentence for each offence, which he served concurrently. Five other individuals, including the Applicant's nephew, were charged with various offences relating to trafficking controlled substances and money laundering.

6 Following the Applicant's sentencing, the Canada Border Services Agency (CBSA) reported him as inadmissible under subsection 44(1) of IRPA. The CBSA report stated that the Applicant was part of a six-member drug ring based in Windsor, Ontario and cited paragraph 37(1)(a) of IRPA. The Applicant was referred for an Admissibility Hearing, which took place on October 4, 2011.



• II. Decision under Review

7 The Board found that the Applicant was a permanent resident of Canada who is inadmissible for organized criminality. It determined on the basis of paragraph 37(1)(a) of IRPA that the evidentiary standard for its finding was "reasonable grounds to believe", which has been defined in the jurisprudence as "a serious possibility based on credible evidence".

8 The Board relied on the evidence submitted by the Minister, who bore the evidentiary burden in this case, the testimony of the Applicant, and the testimony of Corporal Greg Connelly, a Royal Canadian Mounted Police (RCMP) officer assigned to the Border Enforcement Team in Windsor. The Board found the Corporal's testimony to be credible and trustworthy in the circumstances of the case.

9 The Board concluded that the drug ring of which the Applicant formed a part constituted a criminal organization for the purposes of IRPA. Despite its lack of formal structure, the Board found that the ring "executed trafficking in a way that the activity is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment."

10 The Board pointed to the Federal Court of Appeal case, Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2006] FCJ No 1512 to highlight that the word "organization" is to be given a broad and unrestrictive interpretation. It also identified that Parliament's objective in IRPA was to prioritize security, "treat[ing] criminals and security threats less leniently than under the former Act."

11 It ultimately found the following:



• Although each member of this drug ring engaged in a variety of tasks within the group, they all played a significant role in achieving financial success for the organization. This group was not formed randomly for the immediate commission of a single offence, but to the contrary, the ring operated over a period of one year. The large amounts of money exchanged for drugs and distributed by the ring were carried out on a regular basis during their existence. The nature of the criminal convictions of those implicated in this drug ring and their activities while committing a variety of crimes are in my view indicative of the clandestine nature which many organized crime groups operate. Although the group was loosely organized I believe Corporal Connelly's testimony that [three of the other members] played major roles as co-coordinators which allowed the organization to operate. The documentary and oral evidence clearly establishes [the Applicant] was an intricate part of the organization and deeply entrenched in the group's criminal activity.



• III. Issues

12 The sole issue in this application is whether the Board erred in its interpretation and application of paragraph 37(1)(a) of IRPA.



• IV. Standard of Review

13 It is well established that the Board's determination of inadmissibility on grounds of organized criminality is largely an assessment of facts, and is thus to be reviewed on the standard of reasonableness (see M'Bosso v Canada (Minister of Citizenship and Immigration), 2011 FC 302, [2011] FCJ No 345 at para 53; Castelly v Canada (Minister of Citizenship and Immigration), 2008 FC 788, [2008] FCJ No 999 at paras 10-12).

14 For the purposes of a paragraph 37(1)(a) of IRPA analysis, reasonableness is concerned with "the existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCR 190 at para 47; Castelly, above, at para 12).



• V. Analysis

15 Paragraph 37(1)(a) of IRPA states as follows:

• Organized criminality

• 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

• (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern;

* * *
• Activités de criminalité organisée



• 37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants :



• a) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée à des activités faisant partie d'un plan d'activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d'une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d'une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d'un tel plan;

16 The Applicant contests the Board's finding that he was a member of a criminal organization. He points to the fact that there were no criminal organization charges laid in any of the criminal proceedings and to the absence of various factors that this Court has purportedly identified as indicia of both the existence of a criminal organization and an individual's membership therein.

17 Specifically, the Applicant relies on Sittampalam, above, Thanaratnam v Canada (Minister of Citizenship and Immigration), 2004 FC 349, [2004] FCJ No 395, and Amaya v Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 549, [2007] FCJ No 743 to argue that there is no criminal organization in the present case because there is, inter alia, no name or identity tied to the drug ring, no structure or hierarchy comprising three or more individuals, no identifying markers on the members, or no group benefit.

18 The very cases the Applicant cites, however, emphasize that criminal organizations are "usually rather loosely and informally structured, which structures vary dramatically" (Sittampalam, above, at para 39), and that "there are no minimum or mandatory attributes that the group must have" in order to be a criminal organization for the purposes of IRPA (Thanaratnam, above, at para 30). While some of the indicia mentioned by the Applicant can be helpful in assessing whether a criminal organization exists, no one element is essential.

19 This Court has further been clear that it was not Parliament's intent to adopt the definition of "criminal organization" from the criminal context. Rather, the objectives of IRPA indicate an intent to prioritize the security of Canadians and, as such, an "unrestricted and broad" interpretation of "organization" in paragraph 37(1)(a) is in order (Sittampalam, above, at para 36). Indeed, a flexible approach has been championed by this Court, so that looseness and informality in the structure of a group do not "thwart the purpose of IRPA" (Sittampalam, above, at para 39).

20 This was exactly the approach taken by the Board in the case at hand. It weighed the evidence before it and came to the conclusion that the drug ring, despite its loose organization, was led by three co-coordinators. The Board further found that the group was "not formed randomly for the immediate commission of a single offence" but rather continued in operation for a full year. The Board concluded that the evidence, including the Applicant's own admission to acting as a courier for the group, was sufficient to demonstrate that the Applicant was a member of the organization. As such, I find that the Board's decision falls within the range of possible, acceptable outcomes defensible in respect of the facts and the law and is thus reasonable.

21 I note additionally, as the Respondent points out, that the schemes under paragraph 37(1)(a) of IRPA and under the Criminal Code, RSC, 1985, c C-46 are distinct, involving, among other things, different burdens of proof. It would thus not necessarily be unreasonable for the Board to believe that an individual was a member of a criminal organization for the purposes of IRPA where no charges of criminal organization had been laid with a view to conviction in the criminal context. The Board nonetheless considered the lack of criminal organization charges laid by the police in this particular case, inquiring specifically into the matter at the hearing, and came to a reasonable conclusion on the basis of the evidence before it.



• VI. Conclusion

22 The Board adopted the broad and unrestricted approach to assessing whether the Applicant was a member of a criminal organization under paragraph 37(1)(a) of IRPA called for on several occasions by this Court, and came to a reasonable conclusion based on its assessment of the evidence.

JUDGMENT

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

NEAR J

WHAT LANGUAGE WILL WE SPEAK IN TWENTY YEARS?

There is a seismic change in Canada and no one is paying attention:

Languages to come under census microscope - Canada - CBC News

ELDERLY SPONSOR LIABLE FOR WELFARE COLLECTED BY FOREIGN SPOUSE

See story below by the CBC. The Supreme Court of Canada has already ruled that sponsors are liable for the social assistance collected by a foreign spouse they sponsor. The abuse of the system is rampant.

Russian bride leaves elderly man with $25K welfare bill - British Columbia - CBC News

FRAUDULENT LANGUAGE TESTS BY IRANIAN APPLICANTS IN FEDERAL COURT DECISIONS

A recent decision by the Federal Court follows on a series of prior rulings regarding fraudulent IELTS scores presented by the same "consultant" on behalf o his clients in Iran,

Khorasgani v. Canada (Minister of Citizenship and Immigration)

Between Mohammadreza Fatemi Khorasgani, Maryam Tajmir Riahi, Ali
Fatemi Khorasgani and Mehdi Fatemi Khorasgani, Applicants, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1260

2012 FC 1177

Docket IMM-2090-12

 Federal Court
Montréal, Quebec

Martineau J.

Heard: October 2, 2012.
Judgment: October 9, 2012.

(22 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     MARTINEAU J.:-- The issue in this judicial review application is whether the visa officer made a reviewable error in dismissing the applicants' application for permanent residence [the application] on the basis of misrepresentation under paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27, as amended [Act].

2     The applicants are citizens of Iran. The principal applicant, Dr. Khorasgani, is a pediatrician who wants to be admitted in the Federal Skilled Worker Class. In 2005, the principal applicant hired an immigration consultant to help prepare and submit the application. According to the Computer Assisted Immigration Processing System [CAIPS], the application was received on or before January 3, 2006 at the Canadian Embassy in Damascus.

3     Section 79 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] sets out the language test requirements for a permanent residency application made by a skilled worker:

 

·       79. 

(1) A skilled worker must specify in their application for a permanent resident visa which language -- English or French -- is to be considered their first official language in Canada and which is to be considered their second official language in Canada and must have their proficiency in those languages assessed by an organization or institution designated under subsection (3). 

 

·       ... 

 

·       (3) 

The Minister may designate organizations or institutions to assess language proficiency for the purposes of this section and shall, for the purpose of correlating the results of such an assessment by a particular designated organization or institution with the benchmarks referred to in subsection (2), establish the minimum test result required to be awarded for each ability and each level of proficiency in the course of an assessment of language proficiency by that organization or institution in order to meet those benchmarks. 

·       (4) 

The results of an assessment of the language proficiency of a skilled worker by a designated organization or institution and the correlation of those results with the benchmarks in accordance with subsection (3) are conclusive evidence of the skilled worker's proficiency in the official languages of Canada for the purposes of subsections (1) and 76(1). 

* * *

 

·       79. 

(1) Le travailleur qualifié indique dans sa demande de visa de résident permanent la langue -- français ou anglais -- qui doit être considérée comme sa première langue officielle au Canada et celle qui doit être considérée comme sa deuxième langue officielle au Canada et fait évaluer ses compétences dans ces langues par une institution ou organisation désignée aux termes du paragraphe (3). 

 

·       ... 

 

·       (3) 

Le ministre peut désigner les institutions ou organisations chargées d'évaluer la compétence linguistique pour l'application du présent article et, en vue d'établir des équivalences entre les résultats de l'évaluation fournis par une institution ou organisation désignée et les standards mentionnés au paragraphe (2), il fixe le résultat de test minimal qui doit être attribué pour chaque aptitude et chaque niveau de compétence lors de l'évaluation de la compétence linguistique par cette institution ou organisation pour satisfaire à ces standards. 

·       (4) 

Les résultats de l'examen de langue administré par une institution ou organisation désignée et les équivalences établies en vertu du paragraphe (3) constituent une preuve concluante de la compétence du travailleur qualifié dans les langues officielles du Canada pour l'application des paragraphes (1) et 76(1). 

4     The application included the results of the principal applicant's English language proficiency test: listening 6.5, reading 6.5, writing 6.0, speaking 5.5, and overall band score 6.0. These results, on their face, appeared to have been issued by the International English Language Testing System [IELTS], an organization approved by the Canadian government. Indeed, the Test Report Form dated December 1, 2005 and bearing the number 021R1234745QL6790L (the 2005 test report), which is certified as a true copy by the Justice Administrator, features logos of the British Council, the IELTS Australia and the University of Cambridge.

5     The principal applicant was apparently examined on October 5, 2005. However, when reviewing the applicants' file, the visa officer had concerns about the authenticity of the 2005 test report. On June 27, 2011, a procedural fairness email was sent to the principal applicant expressing the concerns of the visa officer. The principal applicant confirmed that he had never taken an English test before 2006. Be that as it may, the principal applicant had since then passed IELTS tests (see reports of July 22, 2006, July 4, 2009, and December 5, 2009).

6     The visa officer found that the applicants had submitted fraudulent English test results, which could have induced an error in the administration of the Act, and found the applicants inadmissible for misrepresentation for a period of two years:

 

·       The misrepresentation or withholding of these material facts induced or could have induced errors in the administration of the Act. You have submitted IELTS test results indicating that you were a "very good user" of the English language. 

 

·       Without establishing your abilities in the English language, your application would not receive sufficient points at selection to meet the points total required by the Immigration and Refugee Protection Regulations and your application would not have met immigration requirements. 

7     The applicants now challenge the visa officer's finding that the fraudulent test scores constitute a material misrepresentation. In the impugned decision, reference is made to a test report form dated December 5, 2009, but it appears this is a clerical error. Indeed, in the fairness letter (emailed by the visa officer on June 27, 2011) reference is made to the 2005 test report. In this respect, the applicants submit that the visa officer should not have considered the forged 2005 test document, but only the most recent language tests (December 2009), and which conclusively establish the English language proficiency of the principal applicant. Accordingly, the determination made by the visa officer that the application would not receive sufficient points at selection is unreasonable.

8     According to the case law, the finding of misrepresentation and its qualification by the visa officer as material misrepresentation, are reviewable under the standard of reasonableness, while alleged breaches to procedural fairness are reviewable under the standard of correctness.

9     The present application for judicial review must fail.

10     At the hearing before the Court, applicants' counsel did not pursue procedural fairness issues originally raised, if any, in the pleadings. Indeed, the fairness letter sent to the principal applicant on June 27, 2011 clearly outlines the officer's concerns with respect to the authenticity of the 2005 test report. Moreover, the applicants' counsel also readily admitted that in view of the case law and wording of paragraph 40(1)(a) of the Act, the principal applicant cannot blame the immigration consultant for his forgery. In passing, I note that on November 22, 2006 the visa officer attempted to notify the principal applicant that he had hired an unauthorized representative. However, the email address provided by the immigration consultant was incorrect and the principal applicant did not receive the message. A letter with the same information was resent on January 15, 2009.

11     As per subsection 11(1) of the Act, the visa officer must be satisfied that the applicants are not inadmissible. In order to find inadmissibility pursuant to paragraph 40(1)(a) of the Act, two elements must coexist: (1) a misrepresentation (direct or indirect); and (2) same must be material (in that it induces or could induce an error in the administration of the Act). Paragraph 40(1)(a) is broadly worded to encompass misrepresentations even if made by another party, without the knowledge of the applicant. This provision reads as follows:

 

·       40. 

(1) A permanent resident or a foreign national is inadmissible for misrepresentation 

 

·       (a) 

for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; 

* * *

 

·       40. 

(1) Emportent interdiction de territoire pour fausses déclarations les faits suivants : 

 

·       a) 

directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi; 

12     It is not challenged that the 2005 test report is a forged document misrepresenting the fact that the principal applicant had been positively tested on October 3, 2005. The finding of misrepresentation made by the visa officer that the fraudulent test scores induced or could have induced an error in the administration of the Act, constitutes an acceptable outcome which is defensible in respect of the facts and the law since the scores obtained on the language test can influence the total points required for a permanent residency application to be granted.

13     Once it is understood that a misrepresentation is material, a person seeking entry as a permanent resident should not be able to benefit from subsequent delays in the processing of their application. As generally observed by Justice Shore in Omgba v Canada (Public Safety and Emergency Preparedness), 2011 FC 748 at para 1, "[t]he reward of the truth, once understood, is an openness to the interpretation of immigration laws that provide access to the improvements regarding the precarious human condition intended by Parliament; on the other hand, lies bar access to undeserved settlement opportunities to preserve the integrity of the immigration system." [Emphasis added]

14     At the time of the application, there was clearly a misrepresentation made by the applicants on a relevant fact. The wording of paragraph 40(1)(a) of the Act does not support the restrictive interpretation advanced by the applicants. It is not that the fraudulent test results necessarily induced an error in the administration of the Act, but instead as the Act clearly states, it is that the results could have induced an error. The intent of these provisions being to deter misrepresentation and maintain the integrity of the immigration process - to accomplish this objective the onus is placed on the applicant to ensure the completeness and accuracy of his or her application. The fact that the applicants subsequently filed bona fide reports did not create any legitimate expectation that their application would receive sufficient points at selection.

15     In April 2012, my colleague, Madam Justice Danielle Tremblay-Lamer rendered nine nearly identical decisions based on cases that are all substantially the same as the present case. All applicants were citizens of Iran who had hired the same immigration consultant as the principal applicant in this case. All their applications for permanent resident were refused after the visa officer concluded that their IELTS results were false. The respective applicants in each of the nine cases presented arguments that were also substantially similar to those presented by the applicant in the case at bar, and all were additionally represented by the same counsel as the present applicants. The learned judge arrived at the same conclusion in each of the cases and dismissed all nine applications for judicial review. See Goudarzi v Canada (Minister of Citizenship and Immigration), 2012 FC 425, [2012] FCJ No 474 [Goudarzi]; Afzal v Canada (Minister of Citizenship and Immigration), 2012 FC 426, [2012] FCJ No 475; Khoei v Canada (Minister of Citizenship and Immigration), 2012 FC 421; [2012] FCJ No 470; Masoud v Canada (Minister of Citizenship and Immigration), 2012 FC 422, [2012] FCJ No 471; Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428, [2012] FCJ No 477; Sayedi v Canada (Minister of Citizenship and Immigration), 2012 FC 420, [2012] FCJ No 469; Sedeh v Canada (Minister of Citizenship and Immigration), 2012 FC 424, [2012] FCJ No 473; Shahin v Canada (Minister of Citizenship and Immigration), 2012 FC 423, [2012] FCJ No 472; Tofangchi v Canada (Minister of Citizenship and Immigration), 2012 FC 427, [2012] FCJ No 476.

16     I agree with the respondent that this is an instance where the doctrine of judicial comity applies (see Cina v Canada (Minister of Citizenship and Immigration), 2011 FC 635 at paras 34-35, [2011] FCJ No 817). The applicants have simply failed to convince me that this case comes within a recognized exception mentioned in Almrei v Canada (Minister of Citizenship and Immigration), 2007 FC 1025 at paras 61-62, [2007] FCJ No 1292, that is: the two cases have a different factual or evidentiary basis; the issues at bar are different in each case; there is legislation or binding authorities that the prior decision did not consider that would lead to a different result; and where injustice would result from following the other decision.

17     The applicants notably argue that the 2005 test report was not presented as an original document, which would mean that there was no "material misrepresentation" since the document should not have been accepted in the first place. This contradictory position was also advanced by applicants' counsel before Justice Tremblay-Lamer and I am unable to find any reason not to follow the approach taken by my colleague. Let us just say that, if the test results were not intended to represent valid test results, then the application would have been deemed incomplete and returned since it was missing a requisite element. This means that submission of the fraudulent test results did affect the process and was material. The submitting of the 2005 test report conferred a relative advantage to the applicants who were falsely claiming that the principal applicant had been positively tested in October 2005.

18     The fact that the immigration consultant hired by the applicants was not an "authorized representative" within the meaning of the Regulations was also considered by Justice Tremblay-Lamer. This did not prevent the principal applicant from verifying the veracity of their application and the authenticity of supporting documentation submitted with the application (including the forged 2005 test report). Indeed, the application, containing the fraudulent test scores as well as the incorrect email address, was apparently signed by the applicant.

19     The visa officer owed no duty of care to the applicants and the applicants were subject to a duty of candour, which they did not satisfy in this case. Subsection 16(1) of the Act provides:

 

·       16. 

(1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. 16. (1) L'auteur d'une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, donner les renseignements et tous éléments de preuve pertinents et présenter les visa et documents requis. 

Accordingly, the purpose of the misrepresented document or statement should be considered when assessing whether the misrepresentation meets the materiality threshold.

20     Again, in addressing the other nine cases mentioned above, Justice Tremblay-Lamer writes in Goudarzi at paras 17, 27, 40, 49 and 50:

 

·       The Court agrees with the respondent that the False Document constitutes a misrepresentation: an examination of its physical appearance reveals that it is clearly designed to imitate the appearance of an IELTS Test Report. There is no other plausible purpose behind the submission of the False Document other than to mislead the immigration authorities into thinking that the file was complete and that the principal applicant had satisfied the language requirements. An official doing an initial completeness review of the file would not necessarily notice that it was fraudulent. I do not accept that any reasonable person would say that the purpose of this document was anything other than to mislead. It was thus wholly reasonable for the counsellor to conclude that it was intended to mislead the authorities to believe it to be an authentic test result. 

 

·       ... 

 

·       The fact that the misrepresentation was caught before the final assessment of the application does not assist the applicants. The materiality analysis is not limited to a particular point in time in the processing of the application -- the fact that the principal applicant had submitted more recent language test results does not render the earlier misrepresentation immaterial. Such a result would reflect a narrow understanding of materiality that is contrary to the wording and purpose of section 40(1)(a) of the Act. The False Document was submitted and it was material. 

 

·       ... 

 

·       In keeping with this duty of candour, there is, in my opinion, a duty for the applicant to make sure that when making an application, the documents are complete and accurate. It is too easy to later claim innocence and blame a third party when, as in the present case, the application form clearly stated that language results were to be attached, and the form was signed by the applicants. It is only in exceptional cases where an applicant can demonstrate that they honestly and reasonably believed that they were not withholding material information, where "the knowledge of which was beyond their control", that an applicant may be able to take advantage of an exception to the application of section 40(1)(a). 

 

·       ... 

 

·       The concept of a duty of care does not apply in this context -- the applicants were subject to a duty of candour, which they did not satisfy. The initial screening officer was simply tasked with undertaking a "completeness" check of the application file. He owed no "duty of care" to the applicants. 

 

·       The requirements of procedural fairness -- which did exist -- were in fact satisfied. When the visa officer later examined the False Document, he noted several problems with it (likely including the fact that it was evidently a copy), which led him to conclude it was fraudulent. The visa officer's obligation at that point was to advise the applicants that they were potentially inadmissible for misrepresentation. He discharged this obligation by sending the Fairness Letter and thus satisfied the requirements of procedural fairness. 

21     In the case at bar, the misrepresentation made by the applicants did not arise as a result of a bona fide error or excusable misunderstanding of what was required by the Regulations. That said, nothing will prevent the applicants from making a fresh application for permanent residence at the expiry of the inadmissibility period provided for in paragraph 49(2)(a) of the Act.

22     For these reasons, the impugned decision must stand. Accordingly, the present application for judicial review shall be dismissed. Neither party proposed a question for certification and in my view there is none.

JUDGMENT

THIS COURT'S JUDGMENT is that the present application for judicial review is dismissed. No question of general importance is certified.

MARTINEAU J

PARENTS AND GRANDPARENTS "SUPERVISA" IN COURT DECISON

A rare case on the "parents and grandparents" super visa highlights the lack of consideration or specific evidence by a visa officer. Interestingly, the facts arose before the closing of the Canadian embassy  in Tehran, so the question would be whether the new circumstances of the relationship between Iran and Canadashould be taken int consideration, as it should be patently evident that a return to Iran is unlikely for most applicants.

Dinani v. Canada (Minister of Citizenship and Immigration)

Between Ezzat Tavakoli Dinani, Abdolah Abdolahi Neisiani, Applicants,
and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1136

[2012] A.C.F. no 1136

2012 FC 1063

Docket IMM-673-12

 Federal Court
Montréal, Quebec

Shore J.

Heard: September 6, 2012.
Judgment: September 7, 2012.

(28 paras.)

---

 

·       REASONS FOR JUDGMENT AND JUDGMENT

SHORE J.:--

 

·       I. Preliminary

1     This case involves parents who want to temporarily visit their children residing in Canada for the purposes of meeting their son's fiancée and attending their wedding.

2     This Court has already recognized the importance of the objective of family reunification in a discretionary decision-making context (Khatoon v Canada (Minister of Citizenship and Immigration), 2008 FC 276).

3     Furthermore, Citizenship and Immigration Canada's policy and program Manual OP-11 on the overseas processing of temporary resident applications (Manual OP-11) encourages flexibility in the process of issuing visas to parents:

 

·       Parents and grandparents

 

·       In April 2005, the Minister of Citizenship and Immigration made a policy decision to encourage visa officers to be more flexible in issuing temporary resident visas (TRV), including multiple-entry visas, to parents and grandparents: 

 

·       * 

who have applications for permanent residence in process; and 

·       * 

who wish to visit but do not intend to immigrate to Canada. 

[Emphasis added.]

(Manual OP-11 at page 7).

 

·       II. Judicial procedure

4     This is an application for judicial review presented in accordance with subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision dated December 18, 2011, by a visa officer from the Canadian Embassy in Tehran, Iran, refusing the applicants a temporary resident visa.

 

·       III. Facts

5     The principal applicant, Ezzat Tavakoli Dinani, a retired nurse, and her spouse, the applicant, Abdolah Abdolahi Neisiani, a retired doctor, are Iranian citizens.

6     They have four children together. Two of their daughters are still their dependent children and attend university in Iran, one in chemical engineering and the other in medicine.

7     Their third daughter is married and has been living in Canada since February 2007. Their son, Meisam Abdolahi Neisiani, has been living in Canada since September 2005.

8     The applicants sought a temporary resident visa from the Canadian Embassy in Tehran with the aim of visiting their children who reside in Canada. They wanted to meet their son's fiancée and attend the wedding.

9     On December 18, 2011, their temporary resident visa was refused.

 

·       IV. Decision under review

10     First, the visa officer's refusal was based on his belief that the applicants would not leave Canada at the end of the authorized stay period because of their travel history and their family ties in both Iran and Canada.

11     Second, the visa officer was not convinced that the applicants had sufficient financial resources to support themselves during their stay and to ensure their return to Iran.

 

·       V. Issue

12     Did the visa officer err by refusing the temporary resident visa application?

 

·       VI. Relevant statutory provisions

13     The following provisions of the IRPA are relevant:

 

·       Application before entering Canada

 

·       11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 

 

·       Obligation on entry

 

·       20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, 

 

·       (a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and 

 

·       (b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay. 

* * *

 

·       Visa et documents

 

·       11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi. 

 

·       Obligation à l'entrée au Canada

 

·       20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver : 

 

·       a) pour devenir un résident permanent, qu'il détient les visa ou autres documents réglementaires et vient s'y établir en permanence; 

 

·       b) pour devenir un résident temporaire, qu'il détient les visa ou autres documents requis par règlement et aura quitté le Canada à la fin de la période de séjour autorisée. 

14     The following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 are relevant:

TEMPORARY RESIDENT VISA

Issuance

 

·       179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national 

 

·       (a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; 

 

·       (b) will leave Canada by the end of the period authorized for their stay under Division 2; 

 

·       (c) holds a passport or other document that they may use to enter the country that issued it or another country; 

 

·       (d) meets the requirements applicable to that class; 

 

·       (e) is not inadmissible; and 

 

·       (f) meets the requirements of section 30. 

* * *

VISA DE RÉSIDENT TEMPORAIRE

Délivrance

 

·       179. L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis : 

 

·       a) l'étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; 

 

·       b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; 

 

·       c) il est titulaire d'un passeport ou autre document qui lui permet d'entrer dans le pays qui l'a délivré ou dans un autre pays; 

 

·       d) il se conforme aux exigences applicables à cette catégorie; 

 

·       e) 

il n'est pas interdit de territoire; 

 

·       f) il satisfait aux exigences prévues à l'article 30. 

 

·       VII. Position of the parties

15     The applicants argue that the visa officer did not respect Manual OP-11. In fact, the manual indicates that the Minister of Citizenship and Immigration encourages the issuance of temporary resident visas to parents and grandparents. Thus, the visa officer should have considered that the applicants were travelling to visit their two children who reside in Canada. The applicants maintain, in this regard, that the officer should have given them the opportunity to be heard on the merits of their application in order to comply with the rules of natural justice.

16     Furthermore, the applicants argue that the visa officer did not examine the evidence submitted supporting their financial ability to support themselves during their stay and to ensure, by this very fact, their return to Iran.

17     The respondent argues that the applicants did not submit evidence that could satisfy the visa officer that they would leave Canada at the end of the authorized period. He claims that visa officers are under no obligation to orally interview applicants.

 

·       VIII. Analysis

18     The visa officer's decision was discretionary and the standard of review that is well-settled by past jurisprudence is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).

19     With this in mind, it is important to focus on the officer's decision-making process, which must be transparent and intelligible (Dunsmuir, above).

20     In this case, the visa officer refused the temporary resident visa because of the female applicant's family ties in the country of origin and the financial evidence that could guarantee her return to Iran.

21     More specifically, the visa officer noted the following in the Computer Assisted Immigration Processing System (CAIPS):

 

·       Married couple, he 65 & she 61 To visit son/dtr in Canada Dtr PR since 2007 - no neg in FOSS Son has history of irr migration from 2008 - case still pending. Host (dtr) does not meet lico as per documents provided No proof of savings for PA I have reviewed all documents on file. PA does not appear well established and does not appear to meet requirements for a temporary resident visa because: - PA does not demonstrate family ties that would compel return after any authorized stay in Canada - PA does not appear to be sufficiently financially established based on financial statements submitted - purpose of travel is not compelling - PA has limited travel history - Host in Canada does not appear well established based on the documents submitted. Not satisfied genuine visitor. Application is refused. [Emphasis added.] 

22     However, in that paragraph, the visa officer did not address the evidence submitted, which included, among other things, the following documents:

 

·       a. 

notification of payment of monthly pension in Iran for each of the applicants (Applicant's Record (AR) at pages 40-41); 

·       b. 

bank statement in the name of the female applicant attesting to the funds available for her trip (AR at page 39); 

·       c. 

list of the applicants' assets (AR at page 44; apartment, three pieces of land, and one doctor's office); 

·       d. 

a document entitled "License to Establish a Doctor's Private Office", in the name of the male applicant (AR at page 45); 

·       e. 

statement that one of the applicants practised as a urologist in their own private practice (AR at page 46); 

·       f. 

statement that the male applicant practised as a urologist in a hospital (AR at page 47); 

·       g. 

education certificates for the two daughters who are the applicants' dependent children attesting to their university attendance in Iran (AR at pages 48-49; in a society and a country where two young girls, unmarried, would have difficulty living alone); 

·       h. 

letter by the female applicant explaining the reasons for the trip and the ongoing family ties in Iran (AR at page 55); 

·       i. 

invitation letter from the applicants' daughter and son-in-law attesting to their care (AR at page 38). 

23     Certainly, the respondent's position that the applicants could have improved their application by adding other financial evidence to convince the visa officer is understandable and supported by the case law of this Court.

24     Nevertheless, in the case at bar, sufficient and probative evidence contradicts the visa officer's reasoning, namely, with respect to the applicants' economic situation.

25     It has been recognized that the common phrase that the officer [TRANSLATION] "considered all of the evidence" cannot systematically immunize the decision from judicial review, namely in a case where relevant evidence is submitted and not discussed by the decision-maker (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35).

26     In this case, this Court is of the opinion that the officer's findings were made without regard for the evidence.

27     In addition, the visa officer does not seem to have taken into account the importance of the familial nature of the trip like manual OP-11 encouraged him to do.

28     Consequently, the visa officer's decision must be set aside, the application for judicial review is allowed and the matter is referred back to another visa officer for redetermination.

JUDGMENT

THE COURT ORDERS that the applicants' application for judicial review be allowed and the matter be referred back to another visa officer for redetermination. No question of general importance is certified.

Certified true translation: Janine Anderson, Translator