Wednesday, August 10, 2016

SERGIO R. KARAS NAMED TO "BEST LAWYERS IN CANADA" FOR TEH SECOND CONSECUTIVE YEAR

I am honored to have been selected again by my peers for inclusion in the Best Lawyers in Canada 2017 Edition in the practice area of Immigration Law for the second consecutive year. I am grateful to all my colleagues for the vote of confidence they bestow in me.

Wednesday, July 20, 2016

VISITOR REFUSED VISA FOUR TIMES

The case below illustrates the difficulties in obtaining visitor status ( Temporary Resident Visas) faced by applicants who do not have a solid work and travel history.

Rahman v. Canada (Minister of Citizenship and Immigration)

Between
Fahmida Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2016] F.C.J. No. 753
2016 FC 793

Docket: IMM-5402-15

 Federal Court
Vancouver, British Columbia

Strickland J.


Heard: July 4, 2016.
Judgment: July 12, 2016.
(30 paras.)



JUDGMENT AND REASONS
1     STRICKLAND J.:-- This is an application for judicial review of a decision by a Senior Immigration Officer ("Officer") of Citizenship and Immigration Canada ("CIC") dated November 24, 2015 denying the Applicant's request for a Temporary Resident Visa ("TRV"). This application is brought pursuant to s 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 ("IRPA").
Background
2     The Applicant is a national of Bangladesh. She is married to Anwar Shahadat Shatil, a citizen of Bangladesh who holds a Canadian TRV and study permit allowing him to pursue a Master of Science degree in Biomedical Engineering at the University of Manitoba. He arrived in Canada in September 2014 while the Applicant remained in Bangladesh. The Applicant made her first application for a TRV in May 2015, which was refused as were two subsequent applications. With the assistance of her lawyer, the Applicant made her fourth application in November 2015, which was also denied. That decision is the subject of this application for judicial review.
Decision Under Review
3     By letter dated November 24, 2015, the Applicant was informed that her TRV application was refused on the basis that the Officer was not satisfied that she would leave Canada at the end of her stay as a temporary resident ("Refusal Letter"). In reaching this decision, the Officer stated that he or she had considered several factors, including the Applicant's travel history, her family ties in Canada and in her country of residence, her current employment situation, and, her personal assets and financial status.
4     Subsequently, the Applicant was provided with further reasons for the refusal of her TRV application in the form of entries of visa officers' notes in the Global Case Management System ("GCMS"). These included an entry by the Officer dated November 24, 2015 recording that the Applicant had been a senior observer for the Bangladesh meteorological department since January 2014, that she reports to the assistant meteorologist and that she has a very modest annual salary of taka 136k (about $2300 Canadian, or less than $200 Canadian per month). The entry states that the financial documents for the Applicant and her spouse had been seen, a travel itinerary had been provided and a 108 page submission by the Applicant's representative had been carefully reviewed. The Officer noted there was no indication that the Applicant's spouse visited Bangladesh since coming to Canada, the couple has no children, and the Applicant is young and started working recently, less than 2 years ago. Further, it was noted that she has a modest income and no travel history. The entry also stated that despite having her direct family in Bangladesh, her strongest tie was to her husband in Canada. Her representative had commented on the possibility of settling in Canada, also mentioning that dual intent is allowed. The Officer concluded that, based on the documents provided and despite the analysis of the Applicant's representative, he or she was not satisfied, on a balance of probabilities, that the evidence submitted with the application demonstrated the Applicant is well-established, professionally and financially, and constituted sufficient ties to Bangladesh to ensure that she would comply with the terms and conditions of her stay and depart Canada when required. On that basis, the application was refused.
Issues and Standard of Review
5     There is only one matter at issue and that is whether the Officer's decision was reasonable.
6     The Applicant submits that the applicable standard of review for a visa officer's decision to issue or refuse a TRV is reasonableness (Tavakoli Dinani v Canada (Citizenship and Immigration), 2012 FC 1063 at para 18 [Tavakoli]) as does the Respondent (Loveridge v Canada (Citizenship and Immigration), 2011 FC 694 at para 10; Singh v Canada (Citizenship and Immigration), 2012 FC 526; Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). I agree. This Court has previously held that a visa officer's decision to deny a TRV application based on the belief that the applicant would not leave Canada at the end of their stay is a question of mixed fact and law. Accordingly, the decision attracts the reasonableness standard of review (Utenkova v Canada (Citizenship and Immigration), 2012 FC 959 at para 5).
Was the Officer's decision reasonable?
Applicant's Submissions
7     The Applicant submits the Officer's decision should be set aside as it ignored relevant evidence. In support of this position, the Applicant submits that a visa officer cannot "systematically immunize" a decision from judicial review where relevant evidence is submitted by the applicant and not discussed (Tavakoli at para 25). The Applicant points out that this Court, in Girn v Canada (Citizenship and Immigration), 2015 FC 1222, recently said that a visa officer's decision to refuse a TRV application was unreasonable because the officer ignored evidence contrary to his or her conclusion (at para 31). The Applicant also notes that it is unreasonable for a visa officer to be dismissive of an applicant's evidence (Kokareva v Canada (Citizenship and Immigration), 2015 FC 451 at para 12 [Kokareva]).
8     With respect to the facts in the present case, the Applicant says the GCMS notes do not mention the support letters from the Applicant's parents and sister; the Applicant's paid return airline ticket and flight itinerary; evidence of a Bangladeshi bank account in the Applicant's name; a bank statement for the Applicant from that bank; a confirmation of shares registered in the Applicant's name in Bangladesh; and, relevant information contained in an employment letter written by the Applicant's immediate supervisor at the Bangladesh Meteorological Department. All of which are said to demonstrate her ties to Bangladesh and her intent to return.
9     The Applicant also submits that the Officer's decision is unreasonable as it contradicts relevant evidence without any evidentiary basis for doing so and makes arbitrary inferences that are not supported by the evidence or the relevant jurisprudence. In support of this position, the Applicant submits that a visa officer must not rely on speculation without adequate consideration given to countervailing factors. If a visa officer does so, he or she must provide further reasons; if no further reasons are provided, the court may characterize the officer's decision as one that does not meet the standard of reasonableness articulated in Dunsmuir (Momi v Canada (Citizenship and Immigration), 2013 FC 162 at para 23). In particular, the Applicant says the following with respect to the Officer's decision:

·        * 
The Officer's statement in the GCMS notes that the "Applicant is young and started working recently (less than 2 years ago)" is incorrect and vague; 

·        * 
The terms "modest" and "very modest" in relation to the Applicant's income were contradicted by the letter from the Applicant's employer and are also vague. If the references to the Applicant's income are references to the Applicant's greater earning potential in Canada, then the decision is unreasonable (Dhanoa v Canada (Citizenship and Immigration), 2009 FC 729 at para 18 [Dhanoa]). Moreover, references to the Applicant's earning power are made "sterile" by the absence of a cost of living analysis, the absence of references to the Applicant's living and working conditions in her home country and similar conditions in Canada (Dhanoa at para 14); 

·        * 
If, however, the Officer is implying an issue of credibility with the Applicant or her evidence, then there is no justification or evidentiary basis for the Officer to do so, especially considering the Applicant voluntarily indicated her previous TRV refusals in her current application (Kokareva at para 12); 

·        * 
The issue of the Applicant's spouse not having visited Bangladesh since arriving in Canada is an irrelevant consideration (Khatoon v Canada (Citizenship and Immigration), 2008 FC 276 at para 12). Additionally, the Applicant's supporting materials indicate why her spouse has not been able to visit Bangladesh but the Officer's GCMS notes ignore this evidence; 

·        * 
Refusing the TRV application because the Applicant does not have a child in Bangladesh is "hardly sufficient to amount to a reasonable exercise of discretion when other factors are taken into account" (Onyeka v Canada (Citizenship and Immigration), 2009 FC 336 at para 48); and 

·        * 
The Officer incorrectly drew a negative inference on the basis of the Applicant's lack of travel history. As stated by this Court in Dhanoa at para 12: "[l]ack of previous travel can only at most be a neutral factor". 
Respondent's Submissions
10     In response to the Applicant's submission that the Officer ignored evidence, the Respondent submits that the Officer is presumed to have weighed and considered all the evidence unless the contrary is shown. Further, the Officer was not required to make an explicit finding on each constituent element leading to the final decision. The reviewing court must simply be able to understand why the decision was made, looking to the entire record to determine the adequacy of the reasons (Wang v Canada (Citizenship and Immigration), 2010 FC 201 at para 19; Florea v Canada (Employment and Immigration), [1993] F.C.J. No 598 (FCA) at para 1 [Florea]; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 15-16 [Newfoundland Nurses]). In any event, the GCMS notes indicate that the Officer carefully considered all of the evidence.
11     The Respondent also submits that the Officer clearly outlined the grounds for refusal in the Refusal Letter and the GCMS notes. These demonstrate that the Officer was primarily concerned with the Applicant's limited financial and professional ties to Bangladesh, and the stronger familial pull of her husband in Canada compared to her direct family in Bangladesh. The Respondent says these concerns are unambiguous and are based on the evidence submitted by the Applicant.
12     The Respondent submits that the Officer's conclusion was not a negative credibility finding nor did it involve arbitrary inferences. There was an explicit statutory onus on the Applicant to satisfy the Officer that she would depart Canada at the end of the period authorized for temporary residence in Canada. Further, it is well-established that an officer must weigh the extent of an applicant's economic incentives and family ties in Canada and their home country. The weight to be assigned to these factors is a matter for the officer's discretion and is not a basis for judicial review (Wang v Canada (Minister of Citizenship and Immigration), 2006 FC 1298 at paras 9-10; Chhetri v Canada (Citizenship and Immigration), 2011 FC 872 [Chhetri]).
13     The Respondent states that a visa officer is not obliged to conduct a cost of living analysis when considering an applicant's financial incentive to overstay in circumstances, like these, where the officer's decision includes an assessment of a number of different factors (Huang v Canada (Citizenship and Immigration), 2012 FC 145 at paras 8-9 [Huang]; Sadiq v Canada (Citizenship and Immigration), 2015 FC 955 at paras 19-23 [Sadiq]). It was also reasonable for the Officer to consider income of less than $200 Canadian a month to be a very modest salary compared to the draw of a Canadian salary (Calaunan v Canada (Citizenship and Immigration), 2011 FC 1494 at paras 29-30).
14     The Respondent also submits it was not irrelevant for the Officer to have considered the Applicant's lack of travel history when assessing her TRV application. This Court has held that an applicant's lack of travel history is a relevant consideration on a visa application (Dhillon v Canada (Citizenship and Immigration), 2009 FC 614 at para 43 [Dhillon];Obeng v Canada (Citizenship and Immigration), 2008 FC 754 at paras 13, 20 [Obeng]). In the present case, the Applicant had no prior travel history which could be relied on as a positive factor to satisfy the Officer that the Applicant would leave Canada at the end of her authorized stay.
15     The Respondent submits that the Applicant is asking the Court to reweigh the evidence, which is not the proper function of the Court on judicial review (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 61; Pei v Canada (Citizenship and Immigration), 2007 FC 391 at para 14).
Analysis
16     The IRPA requires that a foreign national, before entering Canada, apply for a visa (s 11(1)), establish that they hold such a visa and that they will leave Canada by the end of the period authorized for their stay (s 20(1)(b)). With respect to TRV's, s 7(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("IRP Regulations") states that a foreign national may not enter Canada to remain on a temporary basis without first obtaining a TRV. Section 179 of the IRP Regulations sets out the requirements that must be met before a visa officer will issue a TRV. Among these is the requirement that the visa officer be satisfied that the foreign national will leave Canada at the end of the period authorized for his or her stay. There is a legal presumption that a foreign national seeking to enter Canada is an immigrant, and it is up to him or her to rebut this presumption (Obeng at para 20). Therefore, in the present case, the onus was on the Applicant to prove to the Officer that she is not an immigrant and that she would leave Canada at the end of the requested period of stay (Chhetri at para 9).
17     With respect to the Applicant's allegation that the Officer ignored relevant evidence, the Officer is assumed to have weighed and considered all the evidence presented unless the contrary is shown, and that is not the case here (Florea at para 1; Ahmed v Canada (Citizenship and Immigration), 2013 FC 1083 at para 34). The GCMS notes state that counsel for the Applicant submitted a 108 page submission, including a 12 page analysis, which was carefully reviewed by the Officer. As can be seen from the Certified Tribunal Record, attached to the 108 page submission were the two family support letters, the Applicant's return airline ticket and flight itinerary, the letter from the Applicant's employer, evidence of a Bangladeshi bank account in the Applicant's name, a bank statement for the Applicant from that bank, and, a letter of allotment of shares registered in the Applicant's name in Bangladesh.
18     Further, most of the documents the Applicant asserts were ignored by the Officer were referenced in the GCMS notes. The November 24, 2015 entry by the Officer who refused the application refers to the Applicant's travel itinerary, her employment information, the financial documentation of her and her husband and, as noted above, her counsel's submissions. A prior entry by another officer on November 19, 2015 specifically addresses the "proof on file" including her employer's letter and setting out the information contained in that letter; her income of BDT 135,780, which is stated in her employer's letter; her savings of BDT 224,306.56 which comes from the certificate confirming her bank account; and, an investment in shares in the amount of BDT 500,000, which comes from the letter of allocation of shares, as well as other financial information.
19     The Applicant takes issue with the fact that the GCMS notes were made by two different officers and submits that there is no indication in the GCMS notes that the Officer responsible for determining her TRV application considered the notes of the other visa officer. I would note first that the jurisprudence is clear that the GCMS notes form part of the reasons for the decision (Rezaeiazar v Canada (Citizenship and Immigration), 2013 FC 761 at paras 58-59; Veryamani v Canada (Citizenship and Immigration), 2010 FC 1268). Furthermore, in the absence of evidence to the contrary, it is reasonable to infer that the deciding Officer considered all the notes in the GCMS system when deciding on the Applicant's TRV application. In any event, as noted above, the Officer who made the determination did, directly and indirectly, refer to the Applicant's supporting documentation.
20     In regard to the Applicant's submission that the Officer ignored relevant information contained in the employment letter, the letter is explicitly referred to in the earlier GCMS entry which records that the Applicant has been a senior observer with the Bangladesh Meteorological Department since January 2014 and, as indicated by her employer, she is currently on a temporary probationary period and will be eligible for full-time employment on January 1, 2016, conditional upon her returning from Canada. As noted above, the employment letter is also attached to the 108 page submission of counsel considered by the Officer who issued the refusal.
21     While it is true the Officer did not specifically refer to the two family support letters in his or her notes, the support letters were also attached to the 108 page submission, which the Officer stated was carefully reviewed. The Officer also noted that the Applicant had direct family in Bangladesh but found that her strongest tie was to her husband in Canada. This indicates that the Officer weighed the Applicant's family ties to Bangladesh and to Canada in reaching his or her decision. In any event, the Officer was not required to explicitly mention each and every piece of evidence considered (Newfoundland Nurses at para 16).
22     In short, I do not agree with the Applicant that the Officer ignored evidence.
23     The Applicant also raised numerous arguments to support her position that the Officer contradicted the evidence, without an evidentiary basis for doing so, and that the Officer made arbitrary inferences.
24     In this regard, I do not share the Applicant's concern with respect to the alleged vagueness of the Officer's statement that the "Applicant is young and started working recently (less than 2 years ago)". The Officer need not define words such as "young" and "recent", their meaning is clear and self-evident in the context of his or her decision.
25     The Officer's reference to the Applicant's salary as very modest is more problematic. While her employer's letter described her income as "competitive", it appears that the Officer reached the conclusion that it is modest based on his conversion of her salary to Canadian dollars, being less than $200.00 per month. This raises the question of whether the Officer's assessment of her financial status was given undue weight and improperly conducted in absence of a cost of living analysis. However, the Officer's description of her income was only one aspect of the evidence that was considered, but failed to establish, that the Applicant is well-established professionally and financially. Similarly, even if the "modest" nature of her salary was considered by the Officer in the context of the Applicant's greater earning potential in Canada, because it was not the sole factor considered and was not given inordinate weight in refusing the application, it is not a reviewable error (Huang at paras 8-9; Sadiq at para 23).
26     Finally, the Applicant suggests that, by referring to her modest salary, the Officer may have been implying that he or she had an issue with credibility. However, the Applicant has failed to fully develop this submission and, in my view, it is of no merit.
27     The Applicant correctly states that the Officer observed that the Applicant's spouse had not visited Bangladesh since coming to Canada, without reference to the spouse's explanation contained in his submission made in support of her application that, because of his work obligations, it was not possible for him to visit Bangladesh during the 2015 holiday season. In my view, the relevance of the Officer's observation is questionable, however, it was also peripheral to his or her main findings with respect to the Applicant's financial and familial ties to Bangladesh.
28     With respect to the GCMS notes indicating that the Applicant has no children and no travel history, the issue of whether or not the Applicant had any children was directly relevant to the Officer's assessment of the strength of the Applicant's familial ties to Bangladesh.
29     The Applicant's lack of a travel history is also a relevant consideration on a visa application (Dhillon at para 43; Obeng at para 13; Huang at para 11). However, as the Applicant submits, a lack of previous travel is, at most, a neutral factor (Dhanoa at para 12). The Officer referred to her travel history both in the GCMS notes and in the Refusal Letter. The latter stated that the Applicant had not satisfied the Officer that she would leave Canada at the end of her stay as a temporary resident and, in reaching that conclusion, the Officer considered four factors, including her travel history. While I agree that the Officer erred in treating the Applicant's lack of travel history as a negative factor, given the consideration also afforded to the Applicant's familial, financial and professional ties, that error alone is not sufficient to render the decision unreasonable.
30     The Officer concluded, having considered the totality of the evidence, that the Applicant had not met her onus of satisfying the Officer that she would depart Canada at the end of her authorized stay. In my view, that decision was within the range of possible, acceptable outcomes.
JUDGMENT

·        THIS COURT'S JUDGMENT is that

·        1. 
The application for judicial review is dismissed. 

·        2. 
There shall be no order as to costs. 

·        3. 
No question of general importance for certification was proposed or arises. 

STRICKLAND J.

Thursday, July 14, 2016

TIMING OF CITIZENSHIP GRANT AT ISSUE IN UNUSUAL CASE

This is an unusual case: the applicant was granted citizenship on the same day of his trial for sexual assault, and convicted soon thereafter.  The central question  in the case is whether the authorities can issue an IRPA Section 44  report after the person because a citizen The answer from the court is clear: the report was correctly issued because the citizenship was granted in error while the applicant was charged with a crime, and therefore he should not have been sworn as a citizen.

Berisha v. Canada (Attorney General)

Between
Shaqe Berisha, Applicant, and
Attorney General of Canada, the Minister
of Citizenship and Immigration and
the Minister of Public Safety and Emergency
Preparedness, Respondents
And between
Shaqe Berisha, Applicant, and
Attorney General of Canada and the Minister
of Public Safety and Emergency
Preparedness, Respondents
And between
Shaqe Berisha, Applicant, and
Attorney General of Canada and the Minister
of Public Safety and Emergency
Preparedness, Respondents
[2016] F.C.J. No. 726
2016 FC 755

Dockets: IMM-3874-15, IMM-3872-15, IMM-3873-15

 Federal Court
Saskatoon, Saskatchewan

Diner J.


Heard: June 15, 2016.
Judgment: July 5, 2016.
(40 paras.)



JUDGMENT AND REASONS
1     DINER J.:-- This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c-27 [the Act]. The Applicant seeks judicial review of three interrelated decisions:

·         A. 
A report under subsection 44(1) of the Act [the Report] dated February 16, 2015 and made by an Inland Enforcement Officer [the Officer] at Canada Border Services Agency; 

·         B. 
A referral under subsection 44(2) of the Act [the Referral] dated February 27, 2015 and made by a Delegate of the Minister [the Delegate] at Canada Border Services Agency; 

·         C. 
A deportation order [the Order] dated August 7, 2015 and issued by a member [the Member] of the Immigration Division of the Immigration and Refugee Board of Canada. 
2     The three matters, originally filed separately, were consolidated into this judicial review.
I. Background
3     The Applicant was born in Kosovo in 1976 and arrived in Canada as a refugee on October 31, 2005. On March 16, 2011, the Applicant made an application for Canadian citizenship.
4     On June 13, 2012, the Applicant was charged with sexual assault pursuant to section 271 of the Criminal Code, RSC 1985, c C-46. Sexual assault is an indictable offence and, as per subsection 22(1) of the Citizenship Act, RSC 1985, c C-29 as it read at the relevant time, "a person shall not be granted citizenship ... or take the oath of citizenship ... while the person is charged with, on trial for or subject to or a party to an appeal relating to ... an indictable offence under any Act of Parliament".
5     On March 11, 2013, the Applicant wrote his citizenship test. At that time, he signed a form declaring that he was not prohibited from taking the oath of citizenship. On May 16, 2013, he appeared before a Citizenship Judge, signing another form once again declaring that he was not prohibited from taking the oath.
6     On September 17, 2013, the same day the Applicant's trial for the sexual assault charge was scheduled (but adjourned), the Applicant took his oath of citizenship and was issued a certificate of citizenship. Citizenship and Immigration Canada [CIC] was only informed of the charge against the Applicant after it had administered the citizenship ceremony.
7     On October 11, 2013, the Applicant was convicted of sexual assault.
8     On November 7, 2013, the Applicant received a letter from the Registrar of Canadian Citizenship. The Registrar had decided to cancel his certificate of citizenship since the Applicant "had been charged with an indictable offence and [was] prohibited from taking the Oath". The Applicant did not challenge this citizenship decision.
9     On July 4, 2014, the Applicant was sentenced to three years' imprisonment.
10     On February 5, 2015, the Applicant received a letter from the Officer advising him that an inadmissibility report might be issued against him under subsection 44(1) of the Act based on grounds of serious criminality (as per paragraph 36(1)(a) of the Act). The letter invited the Applicant to make submissions in response and he did so.
11     The Officer issued the Report on February 16, 2015, finding the Applicant inadmissible pursuant to paragraph 36(1)(a) based on the following information:

·         THAT: SHAQE BERISHA 

·         - 
IS NOT A CANADIAN CITIZEN 

·         - 
BECAME A PERMANENT RESIDENT ON 31OCT2005 

·         - 
WAS CONVICTED ON 11OCT2013 AT MOOSE JAW, SK OF SEXUAL ASSAULT CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA 

·         - 
WAS SENTENCED ON 04JUL2014 TO THREE YEARS IMPRISONMENT 

·         - 
SEXUAL ASSAULT IS AN INDICTABLE OFFENCE AND IF CONVICTED THE MAXIMUM PUNISHMENT IS A TERM OF IMPRISONMENT NOT EXCEEDING TEN YEARS 

·         (Certified Tribunal Record for File IMM-3874-15 at 16 [CTR]) 
12     The Officer also prepared a referral letter to accompany the Report that provided more detail about the Applicant's circumstances and submissions. In that letter, the Officer recommended that the file be referred for an admissibility hearing and that the Applicant be issued a deportation order:

·         This is Mr. Berisha's only conviction however it was from a crime which was being committed throughout a long period of time and it was a violent crime which will have a big impact on the victim. He also shows he can not [sic] be trusted as he misrepresented on his citizenship papers as he failed to declare his outstanding charges on numerous occasions. Mr. Berisha will not have appeal rights however he is a convention refugee and if a deportation order is issued CBSA still requires a danger certificate to remove the subject from Canada. 

·         (CTR at 10) 
13     The Officer also noted that he was advised that the Applicant was not a Canadian citizen.
14     On February 27, 2015, the Delegate referred the Report to the Immigration Division for an admissibility hearing. In the Referral, the Delegate agreed with the Officer's recommendations as laid out in the Report and the referral letter.
15     On August 7, 2015, after an admissibility hearing, the Member issued the Order. In reasons issued orally at the hearing, the Member concluded that the Applicant was not a citizen of Canada, had been convicted of sexual assault under section 271 of the Criminal Code, and was therefore inadmissible. This in turn, the Member concluded, required the issuance of a Deportation Order.
II. Issues
16     The Applicant raises three issues:

·         A. 
Did the Officer err in issuing the Report when the Applicant had a certificate of citizenship at the time of his conviction? 

·         B. 
Did the Officer or the Delegate err in failing to provide adequate reasons? 

·         C. 
Did the Officer or the Delegate err in failing to provide the Applicant an opportunity to make submissions? 
III. Analysis

·         A. 
Standard of Review
17     The question of whether the Officer could have issued the Report in the first place depends on a finding of fact: whether the Applicant was, or was not, a citizen at the time of the conviction. As such, it is reviewable on a reasonableness standard (Faci v Canada (Public Safety and Emergency Preparedness), 2011 FC 693 at para 17). This Court will not intervene if the decision as a whole is justified, transparent, and intelligible, and falls within a range of acceptable, defensible outcomes (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
18     Similarly, the question of whether the Officer (in issuing the Report) or the Delegate (in issuing the Referral) provided adequate reasons is reviewable on a reasonableness standard (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 11 [Newfoundland Nurses]). Adequacy of reasons is not a stand-alone basis of review. Instead, it must be considered "together with the outcome" and "if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met" (Newfoundland Nurses at paras 14-16).
19     Finally, the question of whether the Applicant was given sufficient opportunity by either the Officer or the Delegate to make submissions is an issue of procedural fairness and is thus reviewable on a correctness standard (Finta v Canada (Public Safety and Emergency Preparedness), 2012 FC 1127 at para 30 [Finta]).

·         B. 
Did the Officer err in issuing the Report?
20     The Applicant argues that the Officer erred in issuing the Report since, at the time of the conviction, the Applicant had been issued a certificate of citizenship. It was only after the conviction that the certificate of citizenship was revoked. Since there is nothing in the Act that says that a citizen can be the subject of a report under subsection 44(1), and since the letter from the Registrar does not state that the cancellation would have a retroactive effect, the Applicant argues that he cannot properly be subject to an inadmissibility report, a referral under subsection 44(2) of the Act, or a deportation order. The Applicant further explained at the hearing that a statutory interpretation of that section could only lead to one conclusion: that only the Applicant's status at the time of the conviction matters. If the legislators had wanted to include citizens who subsequently lost their citizenship from that clause, they would have explicitly stated so.
21     The Respondent accepts that the Applicant had been issued the certificate of citizenship prior to his conviction, but argues that it was of no effect at the time of his conviction because he had not met the requirements of the Act when he received it. The certificate of citizenship was issued on September 17, 2013; at that point, the Applicant had declared, wrongly, that he was not barred from taking the oath. In reality, he was barred because of the June 13, 2012 charge. As a result, the Applicant was never a citizen in the first place and the Officer's conclusion -- that he was a permanent resident and thus could be subject to an inadmissibility finding -- was entirely reasonable.
22     I agree with the Respondent that the Officer did not err in issuing the Report. The language of paragraph 22(1)(b) of the Citizenship Act is clear that a person shall not be granted citizenship or take the oath of citizenship if charged with an indictable offence:

·         22 (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship 

·         (b) 
while the person is charged with, on trial for or subject to or a party to an appeal relating to an offence under subsection 29(2) or (3) or an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act; 
23     Furthermore, subsection 12(3) of the Citizenship Act states that:

·         12 (3) A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship. 
24     In other words, if a certificate is issued but the recipient has not complied with the requirements of the Citizenship Act, then the certificate does not take effect. Therefore, it cannot be said that the certificate ever conferred any status whatsoever. As noted by Justice Russell in Afzal v Canada (Citizenship and Immigration), 2014 FC 1028 at para 25,"[s]ubsection 12(3) provides a legislative foundation for the cancellation of a certificate issued in error. A certificate, even if issued, is of no effect where the conditions precedent to citizenship have not been met".
25     One such condition precedent, as is plainly described in paragraph 22(1)(b) of the Citizenship Act, is that the recipient of the certificate not take the oath of citizenship while at the same time be charged with an indictable offence -- such as sexual assault under section 271 of the Code. The Applicant was so charged at the time he took the oath of citizenship and received the certificate of citizenship. He thus had not met one of the conditions precedents to citizenship. Indeed, the evidence on file from CIC indicates that it never considered the Applicant to have had citizenship: in response to inquiries made by the Officer, CIC responded that "with the information provided, we have searched our records and have found no indication that this person has been granted or issued a certificate of Canadian Citizenship or naturalization" (CTR at 018).
26     I can find no error in the Officer's decision to issue the Report when he did. The Applicant's certificate of citizenship was of no effect and thus he was a permanent resident at the time the Report was issued.
27     As to the wording of the statute, subsection 44(1) of the Act reads as follows:

·         44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. 

·         (Emphasis added) 
28     The Applicant, who was only a permanent resident at the time of the Report, met this criterion due to paragraph 36(1)(a) of the Act, the relevant parts of which are underlined below:

·         36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for 

·         (a) 
having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed
29     According to the Applicant, the above provisions require that an officer look only at permanent resident or foreign national's status at the exact moment in time when the conviction occurs. I disagree and do not find that a plain reading of the statute means anything other than that which the Officer, Delegate, and Member interpreted it to mean -- that he was a permanent resident and not a citizen at the time each of their decisions were taken.
30     The Applicant argues that had status during about six weeks in the fall of 2013 and one cannot retroactively take that status away. Again, I disagree. As already explained above, in light of the relevant provisions of the Citizenship Act then in force, the Applicant never obtained status even though he obtained a certificate. That certificate was obtained through misrepresentation. Even if the misrepresentation was innocent as the Applicant claims and he misunderstood the two forms in which he attested to having no outstanding criminal charges (which he clearly knew about, including adjourning court when it conflicted with his citizenship ceremony), such a misunderstanding does not confer status upon him. As discussed above, the certificate issued to him never took effect because he never complied with the requirements of the Act respecting the oath. And even if I am wrong and he had status for those six weeks, I do not agree that one can only look at his status at the moment the conviction occurred. This does not accord with either a plain or contextual reading of the statute and the Applicant could not point to any precedent supporting his interpretation of the legislation.

·         C. 
Did the Officer and the Delegate provide adequate reasons?
31     The Applicant argues that the Officer and the Delegate (who adopted and relied on the Officer's reasons as expressed in the Report and the Officer's referral letter) failed to provide adequate reasons for their respective decisions, but rather only provided factual statements along with a vague and unclear accompanying letter full of broad conclusive statements lacking evidentiary support.
32     The Applicant further argues that there was insufficient evidence to conclude that he was not "trustworthy" as a result of his citizenship history, and in any event, trustworthiness was not a relevant or appropriate factor for the Officer and the Delegate to consider. As such, the Applicant submits that their reasons are inadequate and lack a coherent and proper analysis of the Applicant's circumstances.
33     I find, to the contrary, that the Report provided more than adequate reasons. The Officer laid out the factual basis for the decision to report: that the Applicant was not a Canadian citizen and that the Applicant was convicted of sexual assault, an indictable offence. These facts alone were sufficient to make the recommendation and referral and served as the foundation for all three decisions. They were certainly sufficiently clear for the Applicant to address them at the admissibility hearing. As noted by Justice Zinn in his discussion on adequacy of reasons in the inadmissibility report context, "reasons are required, given the importance of the decision to the person being considered for removal. However, that is not to say that the reasons that are given must be of the detail required in quasi-judicial or judicial proceedings... the test is whether they allow the person affected to understand why the decision was made and allow the reviewing court to assess the validity of the decision" (Iamkhong v Canada (Public Safety and Emergency Preparedness), 2008 FC 1349 at paras 31-32 [Iamkhong]; see also Richter v Canada (Minister of Citizenship and Immigration), 2008 FC 806, at para 18, aff'd 2009 FCA 73 [Richter]).
34     I also disagree with the Applicant's suggestion that the reasons provided in the Officer's letter of referral were vague and drew conclusions about the history of his citizenship application without sufficient evidence. The referral letter provides a detailed timeline of the Applicant's interactions with both immigration and law enforcement officials and clearly identifies the evidence upon which the Officer reaches his decision to report. The Officer's assessment that the Applicant could not be trusted was based on the fact that he had more than once failed to disclose the charge of sexual assault when required.
35     Finally, with respect to the appropriateness of taking "trustworthiness" into consideration, the case law states that, while exercising a very limited discretion, both the Officer and the Delegate may consider some other factors (Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 at para 37). In Fabbiano v Canada (Minister of Citizenship and Immigration), 2014 FC 1219, for example, Justice O'Reilly wrote:

·         [15] The role of the Minister's delegate is to consider the evidence relevant to admissibility, and to exercise his or her discretion in the circumstances, which may include H&C factors (Faci v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 693, at para 31). The latter are more significant in cases involving persons, like Mr Fabbiano, who are long-term permanent residents of Canada. According to departmental guidelines, a delegate should consider the person's age, the duration of his or her residence in Canada, family circumstances, conditions in the person's country of origin, the degree of the person's establishment in Canada, the person's criminal history, and his or her attitude (see Citizenship and Immigration Canada, "ENF 6 - Review of reports under A44(1)" at 19.2). 
36     In short, I see nothing inappropriate in the Officer and the Delegate's consideration of the Applicant's previous history of non-compliance with immigration authorities. That said, even if it were unreasonable to consider the Applicant's trustworthiness, I find that the Officer's comment was clearly superfluous obiter. The determinative findings in the matter were the Applicant's status as a permanent resident and his conviction for sexual assault. These findings offered sufficient grounds for the Report, the Referral, and ultimately the Order.

·         D. 
Did the Officer and the Delegate err in not giving the Applicant an opportunity to make submissions?
37     The Applicant argues that he was not permitted to explain the circumstances around his certificate of citizenship and its revocation or to address any issues of trustworthiness. Since these were relevant matters for the Officer, he should have been afforded the opportunity, either orally or in writing, to make submissions on these points.
38     Individuals who are subject to section 44 proceedings are owed a duty of procedural fairness. However, as was noted recently in Huang v Canada (Public Safety and Emergency Preparedness), 2015 FC 28 at para 84, the case law establishes a relaxed duty of fairness in the context of subsection 44(1) and 44(2) decisions. This duty confers two rights: the right to make submissions (either written or oral) and the right to obtain a copy of the reports (see also Richter at para 18; Finta at para 35; Iamkhong at 31).
39     Here, the Applicant was afforded the opportunity to make submissions before the Report was issued and was given a copy of the Officer's reasons in order to prepare for the inadmissibility hearing. There is no right to be informed of the specific factors that the Officer or the Delegate might consider, especially when the Applicant takes issue with parts of the assessment based on information he already had (Tran v Canada (Public Safety and Emergency Preparedness), 2009 FC 1078 at para 19). Here, the Applicant knew that his certificate of citizenship had been revoked and knew that this was because he had not provided proper disclosure of his pending sexual assault trial. In any event, as already pointed out above, the comments on trustworthiness were superfluous and the equivalent of obiter.
IV. Conclusion
40     In light of all of the above, this application for judicial review is dismissed. No questions are certified and no costs are ordered.
JUDGMENT
THIS COURT'S JUDGMENT is that:

·         1. 
This application for judicial review is dismissed; 

·         2. 
No questions are certified; and 

·         3. 
No costs are ordered. 

DINER J.

VISA OFFICER MUST RAISE CONCERNS OVER DOCUMENT ON A TIMELY MANNER

Federal Court holds that Study Permit refusal was unreasonable, officer did not raise concerns in a timely manner.

Ogbuchi v. Canada (Minister of Citizenship and Immigration)

Between
Henry Amechi Ogbuchi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2016] F.C.J. No. 724
2016 FC 764

Docket: IMM-5357-15

 Federal Court
Toronto, Ontario

Diner J.


Heard: June 28, 2016.
Judgment: July 7, 2016.
(19 paras.)



JUDGMENT AND REASONS

·         DINER J.:-- 
I. Background
1     This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c-27 [the Act] of a decision [the Decision] by a visa officer [the Officer] at the High Commission of Canada in Accra, Ghana refusing the Applicant's application for a temporary resident visa as a student.
2     The Applicant is a 42-year old citizen of Nigeria. On February 13, 2015, he was accepted by the Manitoba Institute of Trades and Technology [MITT] for a Post-Graduate Certificate in International Business. The duration of expected study was from September 10, 2015 to August 26, 2016.
3     On July 14, 2015, the Applicant applied for a study visa. On his application, the Applicant stated that he studied economics and statistics at the University of Benin from 1995 to 1999 and that he has been employed by subsidiaries of Chevron Nigeria Ltd. since 2004 -- as a Material/Warehouse Officer, a Senior Administrative/Project Management Officer, and an Inventory and Procurement Analyst. He also noted that he had previously applied for a student visa but was denied due to of a lack of evidence of his travel history, employment status, and financial status.
4     On November 13, 2015, the Officer refused the Applicant's application for a study permit. The Officer was not satisfied that the Applicant would leave at the end of his stay in Canada. The Officer noted that "[i]n reaching this decision, I have considered several factors, including... length of proposed stay in Canada [and] purpose of visit".
5     In the GCMS notes that accompany the refusal letter, the Officer provided the following reasons for the Decision:

·         After a review of the application and supporting documents provided, program of study in Canada does not appear to be consistent with previous education and employment history. Based on the information provided, I am not satisfied that applicant is a genuine student who intends to complete course of study in Canada. I am also not satisfied that [the Applicant] would leave Canada at the end of an authorized stay given, in part, educational and employment history. Application is refused. 
II. Analysis
6     The standard of review applicable to a visa officer's assessment of an application for a study permit is reasonableness (Akomolafe v Canada (Citizenship and Immigration), 2016 FC 472 at para 9; Obot v Canada (Citizenship and Immigration), 2012 FC 208 at para 12). As long as the officer's assessment is transparent, intelligible, justifiable, and falls within a range of outcomes that are defensible in respect of the facts and the law, this Court will not intervene (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
7     The Applicant argues that he submitted evidence that he has a wife and three minor children in Nigeria; more than twelve years of gainful employment with an employer that expects him to return at the end of his studies; and substantial cash savings that go well beyond those necessary to fund his education and support his family. In light of all this, he submits that the Officer's assessment that the length of stay proposed by the Applicant and the purpose of the visit weigh against granting a permit is arbitrary and unsupported by the evidence.
8     The Applicant cites Zhang v Canada (Minister of Citizenship and Immigration), 2003 FC 1493 at para 18 for the proposition that "visa officer decisions have been cancelled because the visa officer had not sufficiently taken into account the ties of family which bound the applicant to their home country". The Applicant also cites Zuo v Canada (Citizenship and Immigration), 2007 FC 88 at para 31, where the Court found a visa officer's decision to refuse a study permit unreasonable because of, among other things, "the Officer's failure to consider the applicant's ties to China"; and Oloruntoba v Canada (Citizenship and Immigration), 2012 FC 1414, where Justice Zinn overturned a visa officer's decision in light of a failure to address clear evidence in the applicant's favour.
9     The Respondent argues that the Applicant is simply taking issue with the weight that the Officer assigned to the evidence and that "the weight to be assigned to the factors... is not a basis for judicial review" (Baylon v Canada (Citizenship and Immigration), 2009 FC 938 at para 25). The Respondent submits that the onus was on the Applicant to demonstrate that he would leave Canada at the end of the study period (Dhillon v Canada (Citizenship and Immigration), 2009 FC 614 at para 41) and that he failed to do so. Finally, the Respondent argues that there was nothing unreasonable in the Officer's conclusion that the Applicant's program of study -- his purpose of visit -- was inconsistent with his education and employment history. As a result, the -Decision should not be disturbed.
10     I agree with the Applicant that the Decision lacked justification in this case. Specifically, the Officer did not offer any explanation as to why he found the Applicant's program of study in Canada to be inconsistent with his previous education and employment history.
11     After all, the Applicant is seeking a post-graduate certificate in international business. He asserts that he studied economics and statistics in university and has been employed for over a decade by a large multinational business in the oil and gas sector, in part as a procurement analyst. I cannot understand, from the Officer's reasons, how this professional and educational background is inconsistent with a one-year study program in international business.
12     It may be that the Officer was aware of underlying issues in the application. However, the only explanation regarding the reason for refusal -- that the Applicant would not leave Canada at the end of his authorized stay because of his "educational and employment history" -- is entirely unhelpful since the Officer does not state what it is about either his education or employment that is actually problematic.
13     In other words, the Officer may have had perfectly justifiable reasons for basing a refusal on any of the grounds, but needed to state, with a modicum of clarity, what they were. A visa officer's reasons need not be perfect but they must "allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes" (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16). Where, as in this case, the reasons are so inadequate as to render the decision itself unjustified and unintelligible, and the conclusion thus falls, as a result, outside of the range of acceptable outcomes, then the decision should be reviewed and sent back for reconsideration.
14     One final note: at the hearing, the Respondent made, for the first time, the observation that several of the documents contained in the Application Record and cited by the Applicant in his arguments -- including the Applicant's alleged application cover letter and employment reference letters -- were not in the Certified Tribunal Record [CTR] and therefore not before the visa officer. The Respondent submitted that, as a result, this Court could not consider those documents in its decision.
15     The jurisprudence is clear that the onus is on the Applicant to demonstrate that something was before the decision-maker if it is not in the CTR:

·         Where the Certified Tribunal Record does not contain a document or make any reference to such a document, a bare assertion by the applicant that the document was sent will not suffice to meet this burden (Singh Khatra at para. 6; Adewale v. Canada (Citizenship and Immigration), 2007 FC 1190 at para. 11). 

·         (El Dor v Canada (Citizenship and Immigration), 2015 FC 1406 at para 32) 
16     If the Applicant cannot overcome this presumption, the disputed evidence cannot be considered by this Court on judicial review (Ajeigbe v Canada (Citizenship and Immigration), 2015 FC 534 at para 13; Adewale v Canada (Citizenship and Immigration), 2007 FC 1190 at para 10 [Adewale]).
17     While a review of the records suggests that the Respondent is correct, I need not rule on the document controversy since the unreasonableness of the Decision is clear even without considering the disputed documents. Having said that, it would be helpful to the Court in the future for parties to raise any issue of conflicting records in advance of the hearing so that it can be properly addressed. In Adewale, for example, Justice Blanchard ultimately concluded that he could not consider the disputed evidence, but only after Department of Justice brought a motion to strike it from the record.
18     It is particularly incumbent on the Respondent to raise any evidentiary inconsistency in a timely manner when one of the arguments posited is that the officer in question sufficiently considered the evidence that was before him or her. Similarly, in situations where a piece of disputed documentation is central to the applicant's position, the issue should be addressed up front and in a timely manner, lest that Applicant find him or herself in the position of being unable to overcome the presumption of a complete CTR.
III. Conclusion
19     In light of the above, this application for judicial review is granted.
JUDGMENT
THIS COURT'S JUDGMENT is that:

·         1. 
This application for judicial review is allowed. 

·         2. 
The matter is to be sent back for redetermination by a different officer. 

·         3. 
There is no award as to costs. 

·         4. 
There are no questions for certification. 

DINER J.
Visalaw International CS CBA OBA-ABO AILA IPBA NYSRA ABA IBA