2015-02-06 | 2015 FC 159 | IMM-5959-14
Ma v Canada (Citizenship and Immigration)
- An application is officially received by CIC only when all required documents are received.
- S. 10(5) of the IRPR applies to inland spousal sponsorship agreements
- CIC does not owe a duty of procedural fairness regarding an application that has been set aside as an additional application under s. 10(5) of the IRPR.
Ma sought to set aside the decision of a CIC processing officer refusing to process an inland application for permanent residency.
Ma married Yuxiand Zo, a permanent resident of Canada, in 2013. In the fall of 2013, Ma made an overseas application for permanent residency in the family class. He simultaneously made an inland application for permanent residency in the spouse or common-law partner class. The applications were received by CIC on the same day but both were incomplete. The missing forms for the overseas application were received by CIC on December 16th, while the missing forms for the inland application were received on December 31st.
The processing officer refused to process the inland application as it violated s. 10(5) of the IRPR which states that an applicant cannot submit a sponsorship application if said applicant is still awaiting a final decision on a previous application. The officer refused to process the inland application as it had been completed later than the overseas application.
The application for judicial review was dismissed.
2015-02-04 | 2015 FC 141 | IMM-4550-13
Song v Canada (Citizenship and Immigration)
- An applicant for Canadian Experience class permanent residency cannot be rejected merely because his employment experience does not match the exact wording of the required employment duties listed in the National Occupation Classification [NOC].
- Such an application also cannot be rejected merely because the applicant’s previous employment experience failed to include one of the duties listed under the NOC.
Song applied for judicial review of the decision of a visa officer to reject his application for permanent residency as a member of the Canadian Experience Class. He had applied under the National Occupation Classification of Retail and Wholesale Trade Manager.
The officer rejected Song’s application because he did not meet the skilled work experience requirement. Song had provided a letter outlining his duties as storefront manager at a Toronto pharmacy but the visa officer argued that the duties listed in the letter did not specifically match the duties required under the NOC. Furthermore, the officer argued that Song’s letter had failed to mention that Song had studied competitors’ sales operations, which is one of the requirements duties listed under the NOC.
The Federal Court found the officer’s decision to have been unreasonable for two reasons. Firstly, the Court opined that an applicant’s written employment experience does not have to match the exact wording of the duties listed under the NOC in order to meet the experience requirement. Secondly, the Court opined that if an applicant’s written employment experience does not include one of the required duties, his application should not automatically be disqualified.
Song’s work experience was deemed by the Court to have satisfied all relevant requirements under the NOC except for the requirement concerning competitor’s sales operations.
The court thus quashed the officer’s rejection of Song’s application and returned the application for reconsideration by another officer.
2015-02-18 | 2015 FC 206 | IMM-446-14
Asoyan v Canada (Citizenship and Immigration)
Once an applicant indicates that she is having trouble receiving e-mails from CIC, it is CIC’s duty to ensure that the applicant receives all subsequent e-mails.
Asoyan applied for judicial review of CIC’s decision to reject her application for permanent residency.
During her application, Asoyan provided CIC with an e-mail address to be used for all communications regarding her application.
In February 2013, CIC sent Asoyan an e-mail requiring that she provide information concerning a gap in her personal history as stated in her application. Asoyan contended that she did not receive this e-mail. CIC never followed up to ensure that Asoyan received the information request. CIC was already aware of Asoyan’s difficulty receiving e-mails, as Asoyan had previously brought it to CIC’s attention that she never received an Acknowledgement of Receipt e-mail concerning her initial application.
Assoyan’s application was eventually rejected due to her failure to provide the information requested in the February e-mail.
The Federal Court opined that once the Asoyan had made it clear that she was not receiving CIC’s e-mails, it was CIC’s responsibility to ensure that she received all information relevant to her application. Thus, in not making any effort to ensure that Asoyan received the information request in February 2013, CIC had breached its duty of procedural fairness. The application for judicial review was allowed.
2015-02-04 | 2015 CF 142 | T-338-14
Miji c Canada (Citoyenneté et Immigration)
If a citizenship applicant satisfies s. 5(1) of the Citizenship Act under a qualitative analysis, it is a violation of procedural fairness to reject his application based on a failure to satisfy s. 5(1) under a quantitative analysis.
Miji sought judicial review of a citizenship judge’s decision to reject his application for Canadian citizenship.
Miji’s application was rejected because he had failed to prove that he had resided in Canada for the requisite number of days as per s. 5(1) of the Citizenship Act
The Federal Court argued that there are three methods by which a citizenship judge can determine whether an applicant has satisfied the requirements of s. 5(1). The first is quantitative and involves calculating exactly how many days an applicant has spent in Canada. The second and third methods are qualitative and involve an analysis of whether the applicant has centralized his ordinary mode of living in Canada and whether the applicant lives regularly and habitually in Canada.
While the citizenship judge rejected Miji’s application under the quantitative method, the court found that Miji’s application would have succeeded had the judge used either of the two qualitative methods of analysis. The court thus found the rejection of Miji’s application to have violated the principles of procedural fairness.
The request for judicial review was allowed
2015-02-12 | 2015 FC 172 | IMM-5323-13
Barua v Canada (Public Safety and Emergency Preparedness)
- A foreign national applying for a work permit with the intention of eventually becoming a permanent resident can be validly excluded from Canada if it seems likely that he will not leave Canada upon the expiration of his work permit.
- A foreign national applying for a work permit with the intention of eventually becoming a permanent resident will be subject to s. 20(1)(1) of the IRPA
Barua sought judicial review of a border service officer’s order that he be excluded from Canada.
Barua, a foreign national, applied for a work permit. During his interview with a border service officer, Barua stated an intention to eventually become a permanent resident of Canada. The officer subsequently ordered that Barua be excluded from Canada.
The officer argued that Barua had violated s. 20(1)(a) of the IRPA, which states that any foreign national who seeks to enter Canada to become a permanent resident must hold either a permanent residency visa or other documents required by regulation. Barua did not possess said documents at the time of his interview.
Barua argued that the officer did not consider s. 22(2) of the IRPA, which states that a foreign national’s intention to become a permanent resident does not preclude him from applying for temporary residency if it is clear he will leave Canada at the end of his authorized stay.
The court confirmed the border service officer’s decision, as there was no evidence that Barua intended to leave Canada upon the expiration of his work permit. The court also found Barua to have violated s. 20(1)(a) of the IRPA as he did not possess the requisite permanent residency application documents at the time of his interview. The application for judicial review was dismissed.