Monday, December 5, 2016

SERGIO R. KARAS QUOTED IN TODAY'S NATIONAL POST

December 4, 2016

Former live-in caregiver jailed for exploiting migrants who wanted to follow in her footsteps to Canada

By Adrian Humphreys 

Eliza Lazaro forged paperwork to create make-believe employers for upfront fees that allowed the women and one man to obtain visas to Canada

A woman who came to Canada from the Philippines as a live-in caregiver has been jailed for exploiting would-be immigrants in a stiff sentence designed to thwart a wave of bogus immigration consulting.
"She lied to them, cheated them, and, in some cases, even threatened them. By doing so, not only did she harm the very vulnerable people who she promised to help, she also repeatedly subverted the integrity of Canada's immigration system," said Justice James Stribopoulos when sentencing Eliza Lazaro to 11 months in custody. She was also ordered to pay $23,500 in restitution to her victims.
Lazaro posed as an immigration consultant who could find employment and handle paperwork for would-be immigrants. Instead, she forged paperwork to create make-believe employers for upfront fees that allowed the women and one man to obtain visas to Canada.
Judge Stribopoulos noted that Lazaro was in a special position to sympathize with the migrants and their desire to start a new life in Canada because their circumstances so closely mirrored her own.
Instead she preyed on them and victimized them.
She arrived in Canada in 1990 at the age of 24 as a live-in caregiver from the Philippines. After three years at that job she moved on to other employment, including selling insurance.
In 2008 she began offering services as an immigration consultant but was never licensed to do this work with the Immigration Consultants of Canada Regulatory Council.
Those who come to Canada through the Live-In Caregiver Program are an especially vulnerable group of newcomers
Several of her clients arrived in Canada only to find their promised job was a lie and their paperwork forged or falsified.
One woman from the Philippines paid her $5,000 to come to Canada on the government's Live-In Caregiver Program. When she arrived, the woman who was supposedly hiring her had no need of a caregiver. The fake employer later told investigators she was paid $500 by Lazaro to pose as an employer for the application.
A man arrived in Canada after paying Lazaro $4,500 but when he went to the address of his so-called employer to start work he learned it was all a ruse.
Another migrant paid $5,000 and was given fake employer information. She was stopped at the border and deported.
Lazaro told a woman from Hong Kong that her purported employer was away on vacation when she arrived; several months later she had still not been able to make contact. The worker eventually found another job and remained in Canada but, two years later, Lazaro sent her a text saying she would "send her back" if she didn't pay her more money.
The worker ignored the demand.
One woman gave Lazaro $10,000 to bring her two nieces to Canada as worm pickers but Lazaro did nothing to help them. Because the woman who hired her lived in Canada she was able to sue her to recover her money, but her nieces were out of luck.
A woman from Saudi Arabia paid Lazaro $4,500 but when she arrived she found no job waiting. Instead, she learned, her purported employer was actually Lazaro's husband posing as an employer.
Another woman from Saudi Arabia sought original copies of immigration documents Lazaro emailed her but was refused. She demanded a refund of her $2,500 but Lazaro threatened to have her banned from Canada if she pressed the matter.
The woman never made it to Canada.
After five-year span of duplicity she was arrested last year and recently pleaded guilty to seven counts of violating the Immigration and Refugee Protection Act.
Lazaro had no criminal record and paid $20,000 in her lawyer's trust account to make restitution before her sentencing last month.
Her lawyer asked that she serve her sentence in the community. The government asked for 21 months in jail and a $50,000 fine. (The judge noted with dismay that the government sought a fine and not restitution for Lazaro's vicitms.)
The judge also noted that her victims were legitimate migrants, not willing schemers like in several cases of bogus immigration.
"Those who come to Canada through the Live-In Caregiver Program are an especially vulnerable group of newcomers," Stribopoulos said in his ruling.
Lazaro's sentencing hearing highlighted a rash of recent cases of bogus immigration consultants.
Sergio Karas, a Toronto immigration lawyer and past chairman of the Ontario Bar Association's Citizenship and Immigration Section, said the cases are piling up.
"This problem appears to be widespread in many communities, where unscrupulous individuals use their connections to dupe others," said Karas.
"It is appalling how a person who came to Canada as a caregiver and was probably familiar with the mental anguish that her co-nationals must have felt, chose to take full advantage of them through threats and intimidation," said Karas.
ahumphreys@nationalpost.com
Twitter.com/AD_Humphreys

Wednesday, November 23, 2016

SERGIO R. KARAS SPEAKS AT ABA AMERICAS FORUM IN BOGOTA, COLOMBIA

I was honoured to be part of a panel at the ABA Americas Forum in Bogota, Colombia, November 14-16, on "The future of international trade agreements"
From Left to right: Sergio R. Karas ( Canada) . Carla Junqueira (Brazil) , Marcela B. Stras ( United States) and Jose Francisco Maffla ( Colombia) 

SERGIO R. KARAS SPEAKS AT ABA AMERICAS FORUM IN BOGOTA, COLOMBIA

I was honoured to be part of a panel at the ABA Americas Forum in Bogota, Colombia, November 14-16, on "The future of international trade agreements"
From Left to right: Sergio R. Karas ( Canada) . Carla Junqueira (Brazil) , Marcela B. Stras ( United States) and Jose Francisco Maffla ( Colombia) 

U.S. CRIMINAL CONVICTION, DEPORTATION DID NOT ENGAGE CHARTER

This is an interesting decision . The Federal COurt held that a Permanent Resident convicted in the US who was reported for inadmissibility to Canada upon his return from India, did not have his Charter rights breached by the report referring him to deportation proceedings.

Brar v. Canada (Minister of Public
Safety and Emergency Preparedness)


Between
Hardeep Singh Brar, Applicant, and
The Minister of Public Safety and Emergency
Preparedness, Respondent
[2016] F.C.J. No. 1241
2016 FC 1214

Docket: IMM-1325-16

 Federal Court
Vancouver, British Columbia

A.L. Mactavish J.


Heard: October 27, 2016.
Judgment: November 2, 2016.
(34 paras.)


JUDGMENT AND REASONS
1     A.L. MACTAVISH J.:-- Hardeep Singh Brar is a permanent resident of Canada. After he was convicted of conspiracy to distribute cocaine in the United States, a Minister's Delegate referred Mr. Brar to an admissibility hearing to determine whether he was inadmissible to Canada for serious criminality, as well as organized criminality and involvement in transnational crime.
2     Mr. Brar seeks judicial review of the referral decision, asserting that it was unreasonable as it contained serious factual errors, and failed to consider important evidence. Mr. Brar further submits that the Minister's Delegate failed to properly take "Charter values" into account in deciding whether to refer him to an admissibility hearing.
3     For the reasons that follow, I am not persuaded that the Minister's Delegate erred as alleged. I am further satisfied that the decision to refer Mr. Brar to an admissibility hearing was entirely reasonable. Consequently, his application for judicial review will be dismissed.
I. Background
4     Mr. Brar is a citizen of India who came to Canada in 1998 when he was 15 years old.
5     In 2009, Mr. Brar agreed to take a rental car from Canada to the United States and to drop it off there for use by a drug courier. After meeting with the drug courier in the United States, Mr. Brar was arrested and charged with being part of a conspiracy to distribute 15 kilograms of cocaine, which was intended to be shipped to Canada.
6     Mr. Brar expressed remorse for his actions, and he co-operated with US law enforcement during the investigation and prosecution processes. Mr. Brar evidently told investigators about others involved in the drug trafficking scheme, which led to the indictment of two other individuals.
7     Mr. Brar subsequently pled guilty to the conspiracy offence. He was deemed by the prosecution to have accepted responsibility for his actions, and he was sentenced to 24 months in prison. After serving 21 months of his sentence, Mr. Brar was deported to India. He returned to Canada a month later, admitting to his criminal conviction when he was interviewed by a Canada Border Services Agency (CBSA) Officer at the Vancouver International Airport.
8     Mr. Brar was subsequently given notice that reports may be prepared declaring him to be inadmissible to Canada for serious criminality, organized criminality and transnational crime. He was then interviewed by a CBSA Inland Enforcement Officer, and was given the opportunity to provide written submissions to the Officer prior to a decision being made as to whether to refer him for an admissibility hearing. In support of his request not to be referred to an admissibility hearing, Mr. Brar and his counsel provided the Officer with several sets of submissions and supporting materials over a three and a half year period.
9     Among other things, Mr. Brar submitted that even though his offence was serious, it had not involved violence or firearms. Several years had passed since his one criminal offence, and he had not engaged in any further criminal activity. A psychologist's report provided by Mr. Brar had, moreover, indicated that he posed a low risk of re-offending. Mr. Brar also noted that he had come to Canada as a child, that he had lived in Canada for many years, and that he had minimal ties to India. All of Mr. Brar's immediate family, including his wife, were in Canada, and he was gainfully employed.
10     An initial decision to refer Mr. Brar to an admissibility hearing was set aside on consent, after he sought judicial review of that decision. After receiving further submissions from Mr. Brar, the Inland Enforcement Officer once again recommended that he be referred for an admissibility hearing in relation to his serious criminality, as well as his involvement in organized criminality and transnational crime. A Minister's Delegate subsequently adopted that recommendation, and referred Mr. Brar's case to the Immigration Division of the Immigration and Refugee Board, and it is this decision that underlies this application for judicial review.
11     Mr. Brar has never claimed that he would be at risk if he were returned to India. He further concedes that he is inadmissible to Canada as a result of his American drug conviction, and that he would inevitably be found to be inadmissible by the Immigration Division. He notes, however, that if his case goes to an admissibility hearing, the Immigration Division would have no equitable jurisdiction to consider humanitarian and compassionate factors before issuing a removal order against him.
12     Moreover, because the punishment for Mr. Brar's offence could have exceeded 10 years, had the offence been committed in Canada, he is not entitled to appeal the Immigration Division's finding to the Immigration Appeal Division of the Immigration and Refugee Board. Mr. Brar is also permanently barred from seeking humanitarian and compassionate relief under section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, because he is inadmissible to Canada under section 37 of the Act for organized criminality and transnational crime. Consequently, the only place where Mr. Brar's humanitarian and compassionate considerations can be considered is at the referral stage.
II. Analysis
13     Before addressing Mr. Brar's arguments with respect to the alleged deficiencies in the referral decision, I would start by observing that there is some debate as to the scope of the discretion conferred on Minister's Delegates in deciding whether to refer an individual for an admissibility hearing. Some cases suggest that a Minister's Delegate has no discretion in this regard, while other cases indicate that a Minister's Delegate does possess some, albeit it limited discretion not to refer cases for admissibility hearings: Faci v. Canada (Public Safety and Emergency Preparedness), 2011 FC 693 at paras. 22-31, [2011] F.C.J. No. 893.
14     I do not need to resolve this question in this case, as it is clear that the Minister's Delegate considered that he had discretion to decide whether or not Mr. Brar's case should be referred for an admissibility hearing. The Minister's Delegate determined, however, that the circumstances of Mr. Brar's case did not justify the exercise of that discretion in his favour.
15     In his submissions to the Inland Enforcement Officer, Mr. Brar made brief reference to the potential breach of his rights under section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. It will be recalled that section 7 states that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".
16     Because of the serious consequences that removal from Canada would have for him, Mr. Brar submits that his section 7 rights were engaged in the referral process. As a consequence, Mr. Brar submitted that the Officer had to exercise his discretion in accordance with the principles of fundamental justice. According to Mr. Brar, this required that his case not be referred for an admissibility hearing on the basis that there are sufficient compelling humanitarian and compassionate grounds to permit him to retain his permanent resident status, and removal would violate his constitutional rights.
17     Citing the Supreme Court of Canada's decision in Doré v. Barreau du Québec, 2012 SCC 12 at paras. 55-57, [2012] 1 S.C.R. 395, Mr. Brar argues that the Supreme Court has held that in considering Charter values in the exercise of statutory discretion, administrative decision-makers must balance the Charter values with the statutory objectives. The decision-maker must then ask how the Charter value at issue can best be protected in view of those statutory objectives. According to Doré, "[t]his is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives": at para. 56.
18     The Supreme Court went on in Doré to note that on judicial review, the question for the reviewing Court is "whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play". This determination is to be made applying the reasonableness standard of review: at para. 57.
19     According to Mr. Brar, because Charter values were at play in this case, the Minister's Delegate was required to exercise his discretion in a manner that best protected Mr. Brar's security of the person. This required that the Minister's Delegate not refer Mr. Brar's case to the Immigration Division for an admissibility hearing.
20     There are several reasons why I do not accept Mr. Brar's submission.
21     First of all, I have serious doubts that Mr. Brar's section 7 rights were engaged in this process. The jurisprudence is clear that deportation per se does not engage section 7 of the Charter, and that section 7 is, moreover, not engaged at the stage of determining admissibility to Canada: see, for example, B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 at paras. 74-75, [2015] 3 S.C.R. 704; Torre v. Canada (Citizenship and Immigration), 2015 FC 591, [2015] F.C.J. No. 601; Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240.
22     The Supreme Court teaches that in determining whether section 7 of the Charter is engaged, regard has to be had to the nature of the interests at stake: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 at para. 18, [2007] 1 S.C.R. 350.
23     There has never been any suggestion that Mr. Brar is at risk in India. Indeed, the types of harm that Mr. Brar asserts will befall him if he is removed from Canada are typical consequences of deportation including family separation, loss of establishment and the need to become re-established in a country left years before. This distinguishes Mr. Brar's situation from cases such as Charkaoui, above, where the named individual's liberty interests had been affected by his detention under a Security Certificate, and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, where individuals faced the prospect of deportation to torture.
24     Indeed, as Justice de Montigny noted in Stables, above at para. 42, "[i]t was the risk of torture on removal, though, and not the fact of removal itself, that engage the applicant's section 7 interests in [Suresh]".
25     Similarly, in Torre, above, Justice Tremblay-Lamer concluded that section 7 of the Charter was not engaged where a long-term resident of Canada was being deported for having been convicted of trafficking in cocaine, because the individual in question was not being deported to a country where he faced torture: at para. 71.
26     Even if I were to accept that Mr. Brar's section 7 rights were engaged in the process at issue in this application, however, that would not be the end of the matter. Section 7 Charter rights are not absolute: individuals can be deprived of their life, liberty or security of the person, provided that this occurs through a process that accords with the principles of fundamental justice.
27     In this case, Mr. Brar had a face-to-face interview with the Inland Enforcement Officer. He was repeatedly afforded the opportunity to provide written submissions in support of his request not to be referred for an admissibility hearing, and he provided the Officer with copious submissions that had been prepared with the assistance of counsel. Mr. Brar was provided with draft recommendations prepared by the Inland Enforcement Officer for consideration by a Minister's Delegate, and he was given the right to comment on them. Any errors in the draft reports that were identified by Mr. Brar were corrected, and a thorough analysis of Mr. Brar's case was provided to the Minister's Delegate. This analysis is considered to be part of the Minister's Delegate's reasons: Huang v. Canada (Public Safety and Emergency Preparedness), 2015 FC 28 at para. 88, 473 F.T.R. 91.
28     Moreover, the Minister's Delegate had regard to the objectives of the Immigration and Refugee Protection Act and the seriousness of Mr. Brar's criminal offence. He then weighed these considerations against Mr. Brar's humanitarian and compassionate factors, as he was required to do by both Canadian and international law.
29     In other words, the Minister's Delegate balanced the severity of the interference with what Mr. Brar asserts was his Charter-protected right to security of the person right against the statutory objectives and the nature of Mr. Brar's criminal conviction. He then came to the conclusion that the seriousness of Mr. Brar's criminal conviction outweighed the humanitarian and compassionate factors that supported the exercise of discretion in Mr. Brar's favour.
30     This was a conclusion that was reasonably open to the Minister's Delegate on the record before him. I am, moreover, satisfied that it represents a proportionate balancing of the competing interests at stake: Doré, above at para. 57, Singh v. Canada (Citizenship and Immigration), 2016 FCA 96 at para. 57, [2016] F.C.J. No. 315.
31     Mr. Brar has not identified any further information that he was unable to provide to either the Inland Enforcement Officer or the Minister's Delegate that could possibly have assisted his case. Nor has he identified any principle of fundamental justice that was not complied with in relation to the Minister's Delegate's determination that Mr. Brar should be referred to the Immigration Division for an admissibility hearing.
32     In essence, what Mr. Brar says is that the Minister's Delegate gave too much weight to the seriousness of his criminal conviction and not enough weight to his humanitarian and compassionate factors, and that this breached principles of fundamental justice. It is not, however, this Court's role to usurp the role of the Minister's Delegate and reweigh the evidence to reach a different conclusion.
33     Mr. Brar also argued in his memorandum of fact and law that the Minister's Delegate made certain findings of fact that were unsupported by the evidence. The respondent's memorandum of fact and law identified the evidence in the record that supported the findings in question, and no reviewable error has been demonstrated by Mr. Brar in this regard. Indeed, the fact that evidence from the psychologist's report was referred to in the Inland Enforcement Officer's analysis simply confirms the thoroughness that was applied to the review of Mr. Brar's submissions.
III. Conclusion
34     For these reasons, the application for judicial review is dismissed. I agree with the parties that the case is fact-specific, and does not raise a question for certification.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.

A.L. MACTAVISH J.

Friday, October 28, 2016

SERGIO R. KARAS PROVIDES TESTIMONY TO HOUSE OF COMMONS STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

I was delighted to provide expert testimony to the House of Commons Standing Committee on Citizenship and Immigration yesterday, October 27, 2016, on the topic of family reunification.

Tuesday, October 25, 2016

STUDY PERMIT APPLICANT MUST SHOW THAT HE WOULD RETURN , BENEFITS FROM STUDY COURSE

This is an interesting discussion of the requirements necessary in a Study Permit application. Fedreal COurt held that the applicant must show the benefits of the course of study, that he would return to his country after the permit expires, and, in general terms, that his proposed course of action "makes sense" for him.


Garcia v. Canada (Minister of Citizenship and Immigration)

Between
Elvis Christian De La Cruz Garcia, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2016] F.C.J. No. 819
[2016] A.C.F. no 819
2016 FC 784

Docket: IMM-5408-15

 Federal Court
Montréal, Quebec

Y. Roy J.


Heard: June 23, 2016.
Judgment: July 8, 2016.
(24 paras.)



JUDGMENT AND REASONS
1     Y. ROY J.:-- An application for judicial review was filed under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, chapter 27 (IRPA) regarding the decision made by a visa officer to refuse the application for a study permit that had been filed by the applicant. The reason given was that the applicant had failed to convince the decision-maker that he would leave the country at the end of his stay. Based on the following reasons, the decision is reasonable and the application for judicial review is dismissed.
2     The applicant is a citizen of Guatemala. He is married and is the father of a young child. It appears that on November 5, 2015, the applicant tried to obtain a study permit, such as can be obtained under section 216 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). This study permit was intended to allow the applicant to begin studies to learn English. The studies in question were allegedly to begin on November 9--four days later--and to continue for a period of 40 weeks, at 24 hours per week.
3     In his country of citizenship, this applicant held a position as a systems analyst for a relatively prestigious company from October 2009 to August 2015. As of August 5, 2015, he had just started a job with a high-profile multinational corporation, with a monthly salary of $1,650.00, which, we are told, is a significant salary in Guatemala. In addition, this individual had accumulated savings of over $40,000.00. Yet, according to the visa officer at the Embassy of Canada to Guatemala, it would cost several thousand dollars for the applicant to come and study English for 40 weeks in Canada--around $30,000. I would add that the applicant stated that his spouse also earns an income in Guatemala.
4     The decision-maker in this case concluded that he was not convinced the applicant would return to his country of origin after his immersion period in an English program ended. This decision-maker wondered about this applicant's departure from Guatemala, given that he had just started a new job with a prestigious multinational corporation. No explanation was given as to the reasons why the applicant wanted to learn English, despite the fact that he had admitted to not knowing even the basics of the language. The decision-maker also held that the studies would cost several thousand dollars, and that the applicant's salary would be missed by his family back in Guatemala. The decision-maker did not understand why he would want to come and learn English in Montréal. The lost wages and the costs of studying abroad were not justified. The decision-maker therefore concluded that he was not convinced the applicant would return to Guatemala.
5     The applicant did not indicate what he believed the appropriate standard of review to be. However, his main allegation was that the decision-maker had not allowed him to address his concerns, which, the applicant claimed, constituted a breach of the principles of natural justice. When an allegation is made that the principles of procedural fairness have been breached, the standard of review is the standard of correctness (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 SCR 502). Thus, the judge providing judicial review is not required to show deference to the impugned decision.
6     When applying this standard of review, it is up to the applicant (upon whom the burden of proof rests) to prove that procedural fairness has been breached. In such matters, the degree of procedural fairness is limited. Yet, this was not done. Subsection 11(1) of the IRPA sets out the foreign national's duty to obtain a visa before entering Canada:

·         11 (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 
* * *

·         11 (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi. 
7     The Regulations allow for the provision of a temporary resident visa as long as certain conditions are met:

·         179 An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national 

·         (a) 
has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; 

·         (b) 
will leave Canada by the end of the period authorized for their stay under Division 2; 

·         . . . 
* * *

·         179 L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis : 

·         a) 
l'étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; 

·         b) 
il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; 

·         [...] 
As for study permits, they are governed by section 216 of the same Regulations, which reads as follows:

·         216 (1) Subject to subsections (2) and (3), an officer shall issue a study permit to a foreign national if, following an examination, it is established that the foreign national 

·         (a) 
applied for it in accordance with this Part; 

·         (b) 
will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9; 

·         . . . 
* * *

·         216 (1) Sous réserve des paragraphes (2) et (3), l'agent délivre un permis d'études à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis : 

·         a) 
l'étranger a demandé un permis d'études conformément à la présente partie; 

·         b) 
il quittera le Canada à la fin de la période de séjour qui lui est applicable au titre de la section 2 de la partie 9; 

·         [...] 
8     Thus the applicant has a fundamental duty to prove that he will return to his country. The decision-maker, in this case, held that the evidence was insufficient. It is the applicant's duty to present sufficient evidence when filing his or her visa or permit application so as to substantiate that he or she satisfies the requirements of the IRPA. The decision-maker was not required to specify in what way the application was insufficient, as the applicant seems to suggest. In my view, this is not a question of whether the evidence is credible or that a particular piece of evidence is believed not to be genuine, but rather it is a question of the evidence being sufficient, since the decision taken was only based on the insufficiency of the evidence.
9     In my opinion, it is worth establishing the state of law in these matters. Before this Court, the case law has consistently established that the applicant's duty to prove that he will return to his country implies that satisfactory evidence must be presented. As I stated in Bar v. Canada (Citizenship and Immigration), 2013 FC 317, there is no legal duty to speak with an applicant to suggest additional elements of evidence.
10     This is also the opinion expressed by Mr. Justice Fothergill in Hakimi v. Canada (Citizenship and Immigration), 2015 FC 657:

·         [19] The onus was on the Applicant to satisfy the Officer that he was not an immigrant and that he met the statutory requirements of the IRPA and the Regulations (Obeng v Canada (Minister of Citizenship and Immigration), 2008 FC 754 at para 20 [Obeng]). As this Court observed in Hong: 

·         [31] Applications for student visa are to be analyzed on a case-by-case basis and the role of the Visa Officer does not amount to supplementing the applicant's evidence, as counsel for Ms. Hong seems to suggest. It is trite law that the onus is on the applicant to provide the Visa Officer with all the relevant information and complete documentation in order to satisfy the Visa Officer that the application meets the statutory requirements of the Act and the Regulations (Tran v. Canada (Minister of Citizenship & Immigration), 2006 FC 1377. More particularly, in this case, it was the applicant's responsibility to provide the Visa Officer with all of the evidence in order to satisfy the Visa Officer of her financial capacity. 
The same opinion was held by Mr. Justice LeBlanc in Katebi v Canada (Citizenship and Immigration), 2014 FC 813.
11     In fact, these decisions are variations on a theme, which was explained directly and concisely in Hassani v. Canada (Minister of Citizenship and Immigration), [2007] 3 FCR 501, 2016 FC 1283:

·         [24] Having reviewed the factual context of the cases cited above, it is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such a duty may arise. This is often the case where the credibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visa officer's concern, as was the case in Rukmangathan, and in John and Cornea, cited by the Court in Rukmangathan, above. 
12     In my view, the visa officer did not contest the information's authenticity or accuracy. No one is contesting the fact that the language training exists or that the applicant has the financial resources to take the training for a period of nine (9) months. The Court was not convinced that the negative response was based on anything other than the fact that the evidence provided did not satisfy the fundamental duty to prove that the applicant would leave the country at the end of his authorized stay. Procedural fairness does not stretch to the point of requiring a visa officer"to provide an applicant with a 'running score' of the weaknesses in their application" (Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004 FC 284, at paragraph 23).
13     In this case, the applicant wanted to argue that the decision-maker had based his decision exclusively, or almost exclusively, on that which he called generalizations. He took particular issue with the phrase "[m]ost serious students have started taking English before going to Canada to improve on the basis they've acquired." As I understand the argument, the applicant claims that this comment should be barred and constitutes a breach of procedural fairness, and therefore deference to this decision is not appropriate.
14     That being said, with all due respect, the applicant's error is in failing to consider the circumstances of his application and the context in which the phrase was written. The visa officer has a certain expertise that one acquires through processing visa applications. Common sense, combined with experience, cannot be discounted. If this remark had been the sole basis for denying a visa application, the Court would have had a certain sympathy for the applicant. However, this statement made by the decision-maker is just one of a series of points:

·         * 
The visa application was allegedly submitted on November 5 for courses that were to begin on November 9; 

·         * 
The applicant had just started a lucrative job with a multinational; 

·         * 
There was no indication that the applicant's employer had requested language training or that a leave had been granted. The decision-maker therefore deduced that the applicant, after barely three months of employment, would have to quit his job; 

·         * 
Not only would there be the lost wages, but the visa officer determined that the total costs would be approximately $30,000; 

·         * 
The applicant gave no indication of the benefit that he hoped would come from taking such training; 

·         * 
The applicant's spouse and his child would not accompany the applicant, which would add to the sacrifice and the costs. 
After making the list of insufficiencies, the visa officer stated that he was "not satisfied that he is [sic] a genuine purpose to visit Canada." Since the file is insufficient--whereas a complete file would have addressed the issues raised in a way that makes sense--the visa officer concluded that he was not convinced that the applicant would leave Canada at the end of his stay.
15     As I pointed out at the hearing, the absence of a breach of procedural fairness does not make a decision reasonable within the meaning of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.
16     If the applicant had also contested the reasonableness of the decision taken by the visa officer, the Court would have determined that the decision taken was reasonable, within the meaning of paragraph 47 of the Supreme Court's decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. The deference owed to the decision-maker is sufficient to dispense with the issue. The applicant did not prove that the decision was unreasonable.
17     It must be recalled that the applicant bears the burden of proving that the decision rendered does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Without being a model of articulation, the decision is transparent and the facts and inferences show cause for it.
18     The applicant has a different perspective on the reasons. For example, the fact that the applicant and his family have the financial means to cover the costs of the course and the stay is presented as a justification for his coming to Canada to study--because he can afford it. The applicant is reading into the visa officer's decision the suggestion that he would not be able to reintegrate into Guatemalan society. Lastly, the applicant seeks to circumvent the decision by reaffirming that his wife has her own source of income.
19     This raises two points. Firstly, Dunsmuir acknowledges that a reasonable decision is not that which is correct or that which the reviewing judge would have preferred. It is sufficient for the decision to be among the possible acceptable outcomes.
20     It is incongruous that an applicant should, without explanation, wish to get out of his country, leaving his wife and child behind, to come and learn English in Montreal. The applicant is leaving not only his family behind him, but also a high-paying job, and is committing to considerable expenditures without any indication whatsoever as to what benefit he might gain from all of this. This insufficiency of evidence also demonstrates the reasonableness of the decision of the individual who must decide if a person will return to his country of origin after his stay in Canada. The burden of proof upon the applicant is to show that the decision is not an acceptable possible outcome.
21     This brings us to my second point. That which the applicant puts forth is nothing but a different interpretation. It does not render the decision unreasonable. Furthermore, the respondent in no way suggested that the applicant would not be able to reintegrate into Guatemalan society. What the applicant was trying to do was to invoke the case law of Bonilla v. Canada (Minister of Citizenship and Immigration), 2016 FC 20 [Bonilla]. The applicant is responding to a false question. The question regarding the family's financial circumstances is similar. The decision-maker's point was to note the high costs, the lost income and the absence, given that he had only held his job for a short time. The fact that the applicant's spouse has her own source of income has no bearing on the fact that deciding to come and take language training is a costly choice when the applicant gave no evidence as to his motivation. This is the source of the insufficiency in the decision-maker's opinion. The ability to pay is not an issue.
22     The applicant bases his argument mainly on the decision in Bonilla. Yet, this case is not useful as it is based on very different reasons. That which was criticized in Bonilla was that the visa officer was essentially basing his decision on a rather crude generalization suggesting that after four years of secondary studies, it was unlikely that an applicant would return to his country of origin, given the long separation from his family and culture.
23     In our case, the true issue arises not from a generalization but rather from the fact that concerns about the evidence provided were not conveyed to the applicant. In my opinion, it was the sufficiency of the evidence that was lacking. The comments made by Mr. Justice de Montigny when he was a judge in this Court have not been disavowed and remain valid.

·         [16] It seems to me the visa officer went beyond what was expected. The officer was under no obligation to alert Mr. Liu of these concerns since they were about matters that arose directly from Mr. Liu's own evidence and from the requirements of the Act and of the Regulations. An applicant's failure to provide adequate, sufficient or credible proof with respect to his visa application does not trigger a duty to inform the applicant in order for him to submit further proof to address the finding of the officer with respect to the inadequacy, deficiency or lack of credibility. . . 

·         Liu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1025 (cited case law omitted) 
24     Consequently, the application for judicial review is dismissed. There are no questions to certify.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. There are no questions to certify.

Y. ROY J.

Friday, September 30, 2016

SERGIO R. KARAS QUOTED IN NATIONAL POST ON CASE OF UNINSURED ILLEGAL MOTORIST

I was quoted in today's National Post story commenting on Ontario COurt of Appeal decision.

http://news.nationalpost.com/news/canada/illegal-immigrants-not-entitled-to-injury-compensation-from-public-funds-ontario-court

September 29, 2016

Illegal immigrants not entitled to injury compensation from public funds: Ontario court

By Adrian Humphreys 

Ontario's court of appeal has rejected a hard-fought claim from a Brazilian man - in Canada illegally - who was hurt in a hit-and-run walking...

TORONTO - Illegal immigrants are not entitled to compensation from public funds for a motor vehicle accident, says Ontario's court of appeal, which has rejected a hard-fought claim from a Brazilian man hurt in a hit-and-run when walking across a Toronto street.
Jarley Silva was run down in 2011 while he was walking across Bloor Street West. The driver was never identified.
Silva had arrived in Canada in 1992 using a fraudulent passport and lived partially off the grid - he obtained an Ontario driver's licence but did not own a car or have insurance; he worked as a cleaner and then in construction, even registering his own drywall company, but did not report his income or pay tax.
He even joined a trade union, the International Union of Painters and Allied Trades, court heard.
Silva lived in rental apartments and paid for his living expenses in cash. He didn't have any credit cards and never applied for a Social Insurance Number or OHIP, the province's health plan.
He had been deported in 1995, but soon returned in Canada, illegally crossing the border from the United States at Niagara Falls and returning to his quiet life in Toronto.
In 2002 he applied for, and was issued, a driver's licence, although he apparently never owned a car and never drove. From then until his accident, he never left Ontario.
(The judge) recognized that de facto physical presence in Ontario, even if continuous, does not automatically establish ordinary residency
When Silva was hit on Bloor, he suffered a shattered left ankle and fractured right knee. The ankle was surgically repaired with screws and a plate and he spent time in a wheelchair and then on crutches after the surgery.
After the crash he filed two claims: one for refugee protection, which was denied him in April 2013, and one for compensation for his injuries. Because the identity of the driver was unknown, there was no insurance policy that could respond to damages, putting his claim before the Motor Vehicle Accident Claims Fund.
The traffic accident, however, exposed his life of more than 10 years in the shadows.
Silva was deported to Brazil in 2013, but he continued to press his claim in court.
The government sought to have Silva's claims rejected by the court because the act that created the fund states it is open only to people who "ordinarily reside in Ontario."
Thus began the debate over whether someone who lived in Ontario continuously for almost a decade - but did so without having legitimate immigration status - could be considered a true resident.
In January, Justice James F. Diamond of the Ontario Superior Court sided with the government, declaring Silva's "physical presence" in Ontario was the result of "deception." Diamond did not believe the law was meant to give someone "the opportunity to reap the benefits of ordinary residency in Ontario via a clandestine life through the passage of time."
Silva appealed the decision to the Ontario Court of Appeal, which last week upheld the decision, and ordered Silva to pay $5,000 in costs to the government.
"(The judge) recognized that de facto physical presence in Ontario, even if continuous, does not automatically establish ordinary residency in Ontario for the purpose of access to the Fund. The appellant was present in Ontario illegally, was subject to deportation on discovery and had already been deported once," Justice Eleanore Cronk wrote on behalf of the appeals panel.
The case highlights limits placed on immigrants without legal status in Canada, said Toronto immigration lawyer Sergio Karas.
"This case should sound a cautionary note for those individuals who have obtained driver's licences and drive motor vehicles without immigration status," Karas said.
• Email: ahumphreys@postmedia.com1 | Twitter: AD_Humphreys2

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