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Español Kaur v. MCI
IMM-5726-08
2009 FC 935
September 21, 2009
Principle Established: Responsibility of advising email address change is on applicant
Applicant is a citizen of India who applied for permanent residency under the skilled-worker class. Included with her application was an authorization to deal with her representative. During the process, the representative sent a fax to the High Commission providing a new postal address for his office, the telephone and fax numbers remained unchanged, but it contained no information about e-mail address.
The CHC sent a request for additional information to the representative’s email address.
The applicant failed to reply to this request and her visa application was refused. The applicant asserts that neither she nor her representative ever received the e-mail. The representative argued that CHC must bear the risk because they have always used regular mail to communicate with him and he reasonably assumed that this practice would continue.
The Judge found that it was not reasonable for the representative to expect CHC to figure out that his e-mail was no longer functioning. It was also not correct to assume that CHC would continue to communicate by regular mail.
The representative should have advised CHC that the previously identified e-mail address was no longer valid.
When a communication is correctly sent by a visa officer to an address (e-mail or otherwise) that has been provided by an applicant which has not been revoked or revised and where there has been no indication received that the communication may have failed, CHC cannot be held responsible.
Application for Judicial review was dismissed.
CHC: Canadian High Commission
- Published in September
Sharma v. MCI
IMM-2620-09
2009 FC 1131
November 5, 2009
Principle Established: Information from personal interviews are as important as documentary evidence
The Applicant is a citizen of India who came to Canada in 2000 on a work permit. His work permit extension was refused and he continued working illegally in Canada for 7 years. In December 2008 an exclusion order was issued against him.
In 2006 the Applicant met Ms. Nawabi and got married in November 2008. He applied for sponsorship, but his application was refused on the basis that his marriage was not genuine and was entered into primarily acquiring PR status in Canada.
The first issue raised was whether the immigration officer erred in concluding that the marriage was not genuine by failing to have regard to the documentary evidence submitted by the Applicant.
The Judge indicated that the immigration officer had to consider the totality of all the evidence before her. There were over 17 areas where the couple’s answers differed while the officer interviewed the Applicant and Ms. Nawabi. Even if every piece of documentary evidence was acceptable, the officer was still not persuaded that there was a loving intimate relationship – in other words, a genuine marriage. The Judge ruled that the evidence proffered by the Applicant did not outweigh the evidence obtained through the personal interviews.
The second issue raised by the Applicant was that the Officer did not provide sufficient reasons why she found that the marriage was entered into primarily for acquiring PR status.
The Judge explained that the Applicant bears the burden of demonstrating that his marriage was not entered into primarily for acquiring PR status in Canada. The fact that the Applicant was married shortly after he was reported to immigration officials and that he had a seven-year history of not complying with immigration regulations were evidence that played against him.
The Applicant was engaged to Ms. Nawab for five months, but could only produce photos from three occasions, even though he claimed to have been in a relationship for three years.
The Judge opined that the lack of genuineness presented strong evidence that the marriage was entered into for the purpose of gaining PR status.
The application for judicial review was dismissed.
PR: Permanent Resident
- Published in November
Xiping Jin v. MCI
IMM-2658-09
2009 FC 1234
December 3, 2009
Principle Established: Visa officers must be clear when using standard form letters of refusal.
The applicant has been studying in Canada as an international student between 2004 and 2006. She took a break for approximately two years and then returned to Canada in May 2008 to pursue her studies. She applied for Canadian permanent residence deeming herself eligible under the Federal Skilled Worker class of International Students who have resided in Canada for at least one year. Her application was refused because starting from May 2008, she had less than one year.
The applicant wanted to know if the requirement of one-year legal residence in Canada could be interpreted as including time spent in Canada in the past (2004-2006).
The judge believed the law to be clear in stating that the one-year residency needed to be immediately prior to the application, not before.
The second issue raised was the standard refusal letter from the Visa Office, which was confusing. The Judge opined that the unfortunate use of form letters in responding to applicants where multiple facts situations are involved could easily lead to misunderstanding. The true reason for not processing an application should not be written in such an ambiguous manner that it’s almost impossible to understand without further inquiry. That was not a proper way to proceed and was neither correct nor reasonable.
However, the case was dismissed because it failed on the question of remedy. The applicant was invited to submit
- Published in December
Khan v. Canada (Citizenship and Immigration)
IMM-2604-09
2009 FC 1312
December 23, 2009
Principle Established: Consideration should be given to the reason for a request for extension.
The applicant applied for a permanent resident visa as a federal skilled worker. He was given 90 days to provide IELTS test results. During the 90 days, the applicant was unable to secure a seat for the exam and made a request to the visa office for a 60 day extension. The Visa Office received his request for extension after the 90 days period and thereafter refused his application.
The issue is whether the visa office should have considered the request for extension of time.
The Court found that the refusal to grant an extension of time was unreasonable. The Visa Officer should have exerted his discretion to grant an extension considering the reason for the delay and that the applicant had provided proof he got registered for the next available test.
The application for judicial review was allowed and the visa officer’s decision set aside
- Published in December