We have chosen these Federal Court case decisions for this edition. A list of cases is included below:
- 2024-08-26: Farhat v. Canada (Citizenship and Immigration) – Temporary Resident Visa [TRV]
- 2024-09-12: Ganeshalingam v. Canada (Citizenship and Immigration) – Humanitarian and Compassionate (H&C)
- 2024-09-12: Sugagata v Canada (Citizenship and Immigration) – Judicial Review on Post-Graduate Work Permit (PGWP)
- 2024-09-19: Arodu v Canada (Citizenship and Immigration)- Study Permit Application
2024-08-26: Farhat v. Canada (Citizenship and Immigration) – Temporary Resident Visa [TRV]
In Farhat v Canada, Madam Justice Go agreed with the Applicant that the officer’s decision to refuse her TRV was unreasonable.
The Applicant, a citizen of Iran, applied for a TRV to attend her sister’s wedding reception in Canada. The officer refused the application on family ties and purpose of visit.
On family ties, Madam Justice Go held that it would be unreasonable for an officer to deny a TRV application to visit a family member for the reason that that family member represents a significant tie to Canada as this would render the very purpose of TRVs nugatory. The Respondent also inappropriately tried to bolster the officer’s decision after the fact by presenting reasons not offered by the officer, and some of these factors were addressed in the Applicant’s sister’s invitation letter and representative’s submissions.
With regard to purpose of visit, Madam Justice Go found that the nothing in the decision suggested that the officer considered the Applicant’s financial and employment evidence. The Applicant had a stable life in Iran and proved her financial ability to travel. At para 20, Madam Justice Go writes the Court often cautions against the use of statements about “socio-economic situation” as reasons for refusal. In the present case, the officer failed to justify their finding with respect to the Applicant’s socio-economic situation and its link to the purpose of visit.
2024-09-12: Ganeshalingam v. Canada (Citizenship and Immigration) – Humanitarian and Compassionate (H&C)
The Principal Applicant, a Sri Lankan national who submitted a spousal sponsorship application in 2018, was found inadmissible for untruthfulness and misrepresentation, despite voluntarily correcting misinformation in the application while it was being processed.
In the application, he had indicated that he had never been detained in Sri Lanka. The visa office obtained records showing that he had in fact been detained in June 2008. The Principal Applicant provided evidence that he was released without charge and his police record did not record the detention. The visa officer found the marriage to be genuine but refused the application on the basis of s. 16 of IRPA. The Applicant appealed to the IAD, which added misrepresentation under s. 40 as a ground for refusal.
The IAD acknowledged the misrepresentation was corrected, but found that “[t]he fact that the Principal Applicant lied, was caught, and then repented does not mean that a misrepresentation did not take place.” With regard to H&C factors, the IAD found that there would be nothing exceptional or unusual about the Applicants’ circumstances and that their separation “need not be permanent,” stating that the inadmissibility for misrepresentation “only renders [the Principal Applicant] inadmissible for five years.”
Justice Battista held that the evidence was clear that the Principal Applicant voluntarily corrected the misinformation about his previous detention and was not “caught” by the decision maker. Through his counsel, he wrote to the visa office before his interview and explained that he was detained in Sri Lanka in June 2008. Furthermore, the IAD misapplied the test under s. 40(1)(a): the IAD should have assessed the Principal Applicant’s correction of misinformation in relation to its potential to induce an error in the administration of the IRPA.
At paragraph 40, Justice Battista writes: An interpretation of paragraph 40(1)(a) that does not allow applicants to correct misinformation in their application before an error is or could be induced produces absurd consequences.
Regarding the officer’s H&C analysis, Justice Battista held that the officer used an improperly elevated test, noting that requiring an applicant to prove that their circumstances are exceptional is unreasonable and that the threshold of exceptional or unusual is highly vague and subjective to the point of unintelligibility. Besides, the IAD miscalculated the consequences of the decision. The Applicants had already experienced a delay of over three years while the application was processing and the processing time of a new sponsorship application after the inadmissibility period would take several more years, making the total period of separation over 10 years, not “only” five years.
2024-09-12: Sugagata v Canada (Citizenship and Immigration) – Judicial Review on Post-Graduate Work Permit (PGWP)
In Sugagata v Canada, Justice Grammond allowed the Applicant’s application for judicial review of her refused post-graduate work permit (PGWP) on the basis that the officer failed to consider her specific circumstances.
The Applicant, a citizen of Japan, obtained a study permit in 2018 to study at the International College of Manitoba (ICM). She developed tonsillitis in the Summer of 2019, delaying her last exam and the transmission of her final grades to the University of Manitoba. Due to the delay in receiving her transcript, she was unable to register in enough courses to be enrolled full-time in Fall 2019. She also withdrew from one course in Winter 2020, in line with the University’s pandemic policy. The Applicant was full-time otherwise and took summer classes to compensate her part-time semesters, completing her degree by October 2022. The Applicant’s PGWP was denied because she was not enrolled full-time in Fall 2019.
Justice Grammond explains at para 4: The conditions of eligibility for a PGWP are set by ministerial policy and officers do not have the discretion to change these conditions. Nevertheless, the ministerial policy concerning the assessment of study permit conditions explicitly states that “Officers should exercise their best judgment and take into account all relevant factors when assessing a student’s compliance with their study permit conditions.”
Further, at para 5: Exercising best judgment surely includes taking into account extenuating circumstances beyond the control of a student, as illustrated by Munyanyi v Canada (Citizenship and Immigration), 2021 FC 802. Counsel for the Minister cited a number of cases for the proposition that officers have no discretion when assessing whether an applicant meets the conditions for a PGWP. These cases either failed to address the direction to exercise best judgment or dealt with conditions of eligibility other than compliance with the full-time requirement. In my view, a direction to exercise best judgment necessarily confers a degree of discretion to accept less than perfect compliance.
In the present case, the Applicant explained why she was unable to register for a full course load and this was supported by a letter from ICM. She also gave evidence of the delay in class registration.
Justice Grammond held at para 7: The officer’s reasons are silent with respect to Ms. Sugagata’s specific circumstances and do not show that the officer exercised their best judgment. The outcome of the case also suggests that best judgment was not exercised, especially in light of the fact that Ms. Sugagata completed her program in the normal timeframe. Moreover, the Minister’s submission that the officer had no discretion to consider Ms. Sugagata’s circumstances leads to the absurd result that she would have been better off seeking full leave for the Fall 2019 session, instead of striving to complete her degree in the normal timeframe. The officer’s reliance on Ms. Sugagata’s status in Fall 2019 to deny the PGWP is also difficult to reconcile with their apparent toleration of her part-time status for a number of weeks in Winter 2020.
2024-09-19: Arodu v Canada (Citizenship and Immigration)- Study Permit Application
In the recent case of Arodu v Canada, Justice Little found that a visa officer’s refusal of the Applicant’s application for a study permit was unreasonable.
The Applicant, a citizen of Nigeria residing in South Africa, applied for a study permit for a post-graduate program in Project Management and advised that his wife and children, nor his parents, would accompany him to Canada. He had previously applied for TRVs and a study permit, all of which had been refused. He was also the subject of expedited removal from the U.S. in 2014. He included a four-page letter with his application addressing his prior study permit refusal.
The visa officer denied the application on the basis of R216(1) of the IRPR, particularly purpose of visit and failure to comply with immigration conditions in another country.
Justice Little did not agree with the Applicant’s position seeking to extend an officer’s obligation to provide written analysis and explanation when denying a study permit because: 1) the officer provided specific reasons; 2) this was not a circumstance giving rise to severe negative consequences on an individual’s rights or interests; 3) the officer was constrained to consider and be responsive to the critical or central aspects of the Applicant’s submissions or position; and 4) the officer’s decision was constrained by the facts.
However, Justice Little held that there was no indication that the officer considered the Applicant’s family ties outside of Canada, the Applicant’s letter explaining his previous study permit refusal, or evidence of the Applicant’s property and professional ties to Nigeria and South Africa. This information was material and of sufficient importance to the Applicant’s position so as to require the officer to assess it when determining whether the Applicant would leave Canada at the end of his authorized stay. The officer was required to conduct a “push/pull” assessment.
At para 41, Justice Little explains: the officer’s reasoning in this case used the mere existence of the prior refused TRVs and study permit to infer the applicant’s strong motivation to come to Canada and then not leave after completing his studies. It is hard to reconcile this approach with a requirement to be responsive to express submissions made on the very question at hand (i.e., whether the applicant would leave Canada), or with IRCC’s advice in refusal letters that an applicant may re-apply after being refused a study permit.
Disclaimer: The information on these pages is for general use only and should not be relied upon as legal advice. The summary here is not designed to be comprehensive. It is designed to collect some cases that we believe are interesting to practitioners.
See you next edition!
