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2015-01-29 | 2015 FC 113 | IMM-1261-14
Jalil v Canada (Citizenship and Immigration)
Principle Established
When a visa officer emphasizes a permanent residency applicant’s weak language skills in a decision, this does not necessarily mean that the officer is requiring the applicant to prove that she will be able to economically establish herself in Canada immediately upon arrival.
Facts
Jalil sought judicial review of a visa officer’s decision to deny her application for permanent residency.
Jalil argued that, by focusing part of his decision on her limited language skills and the language requirements of her intended occupation (school teacher), the visa officer erroneously required her to prove show she could become economically established in Canada immediately. She further argued that she should have only been required to show that she was likely to become economically established in Canada within a reasonable time.
Decision
The Federal Court confirmed that a permanent residency applicant must only show that she is likely to become economically established in Canada within a reasonable time but also confirmed the rejection of Jalil’s application.
The Court found the officer’s decision to have been based not only on Jalil’s language abilities but also on her failure to show that she had received or sought any job offers. This was sufficient to prove that Jalil would likely fail to economically establish herself in Canada within a reasonable time. The court dismissed the application for judicial review.
- Publié dans 2015, Canada Case Law, Janvier
Lachica v. Canada (Citizenship and Immigration)
2015-01-30 | 2015 FC 123 | IMM-4184-14
Lachica v. Canada (Citizenship and Immigration)
Principle established
A visa officer’s rejection of an application for a temporary resident visa will be deemed unreasonable if the officer fails to consider relevant evidence.
Facts
Lachica sought judicial review of a visa officer’s decision to reject her application for a temporary resident visa
Lachica had applied for the visa in order to come to Canada and provide emotional support for her sister who had undergone three major surgeries over six months.
The visa officer’s reasons for the rejection focused primarily on a concern that Lachica’s family ties in Canada would keep her from returning to the Philippines when the visa expired.
Decision
The Federal Court found the officer’s decision to be unreasonable on two fronts. Firstly, the decision failed to take into account or mention the fact that Lachicha had a sister in Manila with whom she was very close. Secondly, the officer failed to incorporate into her final decision a number of important issues that she had previously mentioned in her recorded case notes.
The application for judicial review was allowed and Lachica’s visa application was sent to a new officer to be reconsidered on an expedited basis.
- Publié dans 2015, Canada Case Law, Janvier
Case Law 2015
- Publié dans Canada Case Law
Azevedo v Canada (Governor General)
T-1476-14
2015 FC 91
January 22nd, 2015
The Honourable Mr. Justice Rennie
Federal Court (Trial Division)
Principles Established:
- The Governor General’s power to grant royal assent is not subject to judicial review.
- It is within parliament’s legislative capacity to create a law that revokes citizenship.
The applicant sought to set aside Governor General David Johnston’s decision to grant royal assent to Bill C-24, the Strengthening Canadian Citizenship Act. The bill would allow the Minister of Citizenship and Immigration to revoke the citizenship of natural-born and naturalized Canadian citizens who have been convicted of crimes relating to national security or terrorism.
The two issues were:
- Is the Governor General’s power to grant royal assent subject to judicial review?
- Is it within parliament’s legislative capacity to create a law that revokes citizenship?
In response to the first issue, the court opined that the separation of powers within Canada’s constitutional order prevents the judiciary from intervening in the legislative process. The Governor General’s power to grant royal assent to legislation is established in section 55 of the Constitution Act, 1867. Section 55 is included in Part IV of the Act, which is entitled: Legislative Power. This confirms the conclusion that the Governor General’s power to grant assent is legislative in nature and thus not subject to judicial review.
In response to the second issue, the court opined that the right to citizenship is not inalienable as Canada has a long history of creating legislation that provides for the alienation of citizenship. Furthermore, the court confirmed that parliament’s capacity to legislate on all matters relating to citizenship stems from both the preamble of section 91 of the Constitution Act, 1867, which permits parliament to make laws for the peace, order and good government of Canada, and section 91(25) of the Constitution Act, 1867, which gives parliament authority over matters related to naturalization and aliens. Thus, it is within parliament’s legislative capacity to create a law that revokes citizenship.
Decision: The court dismissed the application with costs.
- Publié dans 2015, Canada Case Law, Janvier
Ma v Canada (Citizenship and Immigration)
2015-02-06 | 2015 FC 159 | IMM-5959-14
Ma v Canada (Citizenship and Immigration)
Principle Established
- 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.
Facts
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.
Decision
The application for judicial review was dismissed.
- Publié dans 2015, Canada Case Law, Février
Ebi v Canada (Citizenship and Immigration)
2015-01-06 | 2015 FC 13 | IMM-3613-13
Ebi v Canada (Citizenship and Immigration)
Principles Established
- A settlement between an applicant and CIC does not constitute a court ordered settlement under 87.4(2) of the IRPA.
- An immigration decision made by operation of law cannot be contested on grounds of procedural fairness.
Facts
Ebi applied for judicial review of the decision of a visa officer to reject her application for Federal Skilled Worker class [FSW] permanent residency.
Ebi first submitted her FSW application in 2006. In 2009, Ebi’s file was closed without a final decision as she failed to provide certain required documents. The case was later reopened through a settlement offer from the CIC. After several years of delay, processing of the file began again. In August 2013, CIC send Ebi a letter stating that her application had been rejected due to non-compliance with s. 87.4 of the IRPA.
87.4(1) states that any FSW application started before February 27, 2008 is terminated if, before March 29, 2012, a final decision has not been made. 87.4(2) states that an applicant is protected from this rule if he has entered into a settlement made by court order prior to March 29, 2012.
Decision
The Federal Court upheld the officer’s decision for two reasons. Firstly the Court opined that a settlement agreed to between Ebi and CIC did not constitute a court ordered settlement under 87.4(2). Secondly, the court opined that Ebi did not have recourse to procedural fairness-based arguments concerning the delay in her application’s processing time because the application had been terminated by operation of law. The application for judicial review was dismissed.
- Publié dans 2015, Canada Case Law, Janvier
Song v Canada (Citizenship and Immigration)
2015-02-04 | 2015 FC 141 | IMM-4550-13
Song v Canada (Citizenship and Immigration)
Principles Established
- 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.
Facts
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.
Decision
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.
- Publié dans 2015, Canada Case Law, Février
Asoyan v Canada (Citizenship and Immigration)
2015-02-18 | 2015 FC 206 | IMM-446-14
Asoyan v Canada (Citizenship and Immigration)
Principle Established
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.
Facts
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.
Decision
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.
- Publié dans 2015, Canada Case Law, Février
Ijaz v. Canada (Citizenship and Immigration)
2015-01-16 | 2015 FC 67 | IMM-4516-13
Ijaz v. Canada (Citizenship and Immigration)
Principle Established
In the context of education received in a foreign country, there is ambiguity in the IRP regulations concerning whether educational qualification points should be awarded based on equivalent years of education or equivalent completed degrees.
Facts
Ijaz applied for judicial review of a CIC officer’s rejection of her application for permanent residency as a Federal Skilled Worker.
Ijaz argued that she was erroneously awarded 5 educational qualification points when she was actually entitled to 19 points. If Ijaz had been awarded 19 points, her application would have succeeded.
Ijaz submitted evidence that she had completed secondary school, a two-year science degree and a two-year accounting degree in Pakistan. Upon evaluation, it was determined that Ijaz’s educational experience constituted the equivalent of a Canadian high school diploma, two years of Canadian undergraduate schooling and two years of Canadian professional schooling.
Ijaz argued that she should have been awarded points for her four years of post-secondary schooling while CIC argued that educational qualification points are only provided for foreign educational experience that constitutes the equivalent of a completed degree in Canada. Thus, given that Ijaz had not been assessed as having completed the equivalent of a Canadian bachelor or professional degree, she only received points for her equivalent high school diploma.
Decision
The Federal Court applied the standard of reasonableness to the case as the matter involved a CIC officer interpreting a statute with which he had substantial experience. The Court then opined that both Ijaz and the CIC’s arguments were reasonable interpretations of the IRP Regulations. The Court thus deferred to the CIC’s rejection of the application and submitted a certified question on the legislative ambiguity.
The application for judicial review was dismissed. The certified question has not yet been answered.
- Publié dans 2015, Canada Case Law, Janvier
El-Husseini c Canada (Citoyenneté et Immigration)
2015-01-29 | 2015 CF 116 | T-346-14
El-Husseini c Canada (Citoyenneté et Immigration)
Principle Established
Procedural fairness requires a citizenship judge to take sufficient measures to inform a citizenship applicant of any evidence-related problems with his application before a final decision is rendered.
Facts
El-Husseini sought judicial review of a citizenship judge’s decision to reject his citizenship application.
After an interview with a citizenship judge, El-Husseini’s application was rejected because he was unable to prove that he had resided in Canada prior to January 2008. El-Husseini contended that he had brought evidence to the interview proving his presence in Canada prior to January 2008, but had never been asked to furnish it. The citizenship judge contended, on the other hand, that El-Husseini had been unable to provide the evidence when asked.
Decision
In light of conflicting affidavits, the Federal Court opined that there was a miscommunication between El-Husseini and the citizenship judge concerning the evidence. In light of this miscommunication, the Court confirmed that it is a citizenship judge’s responsibility to clearly inform a citizenship applicant of any evidence-related concerns regarding his application before a final decision is rendered. Given the citizenship judge’s failure to clear up the misunderstanding regarding the evidence El-Husseini was supposed to provide, the Court found the rejection of El-Huseeini’s application to have been a breach of procedural fairness.
The application for judicial review was allowed and El-Husseini’s application was sent for re-evaluation by a new citizenship judge.
- Publié dans 2015, Canada Case Law, Janvier
