Ebi v Canada (Citizenship and Immigration)

2015-01-06 | 2015 FC 13 | IMM-3613-13

Ebi v Canada (Citizenship and Immigration)

Principles Established

  1. A settlement between an applicant and CIC does not constitute a court ordered settlement under 87.4(2) of the IRPA.
  2. 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.

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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.

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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.

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Barua v Canada (Public Safety and Emergency Preparedness)

2015-02-12 | 2015 FC 172 | IMM-5323-13

Barua v Canada (Public Safety and Emergency Preparedness)

Principle Established:

  1. 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.
  2. 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

Facts

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.

Decision

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.

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