We have chosen these Federal Court case decisions for this edition. A list of cases is included below:
- 2024-09-25: Da Silva v. Canada (Citizenship and Immigration) – Humanitarian and Compassionate (H&C)
- 2024-10-02: Shehu v. Canada (Public Safety and Emergency Preparedness) – Judicial Review of the Decision an Inland Enforcement Supervisor of the Canada Border Service Agency Rendered
- 2024-10-11: Singh v. Canada (Citizenship and Immigration) – Judicial Review of a Work Permit under the Temporary Foreign Worker Program
- 2024-10-16: Rafatipour v. Canada (Citizenship and Immigration) – an Application for Judicial Review of a Decision made by an Overseas Migration Officer
2024-09-25: Da Silva v. Canada (Citizenship and Immigration) – Humanitarian and Compassionate (H&C)
The Applicants are a married couple from Brazil who entered Canada with their daughter through an irregular border crossing in July 2003. They made refugee claims, which were refused in March 2004. They filed an H&C application and had a son while they were still in Canada. They complied with their removal orders and left Canada in 2006 with their two children. They received a negative decision on their 2004 H&C application in 2012. They re-entered Canada in 2017 with their Canadian-born son and had further removal orders issued against them. CBSA believed they left Canada in 2020, but they submitted a second H&C in 2021 and a third H&C in 2022, which was the subject of the application for judicial review.
The Applicants argued that the Officer did not reasonably assess the best interests of the child (BIOC), address hardship, or consider all relevant H&C factors.
Justice Diner found the Officer’s BIOC analysis unreasonable, writing at para 8: I acknowledge that the Respondent feels strongly about the wrongs of the Applicants in failing to comply with the law at various points during their long and tortured history to obtain status in Canada. However, those wrongs do not supersede the obligation of departmental officials or those delegated with the responsibility of standing in the stead of the Minister when rendering decisions including on H&C applications, to follow the constraints of the law (see for instance Henry-Okiusama v Canada (Citizenship and Immigration), 2024 FC 1160 at paras 38–39). Of course, the legislation itself sets out little to guide the officers in how they are to adjudicate H&C applications, but the Courts have provided ample commentary on the subject area over the years, including the Supreme Court of Canada.
The Officer’s failure to have properly considered BIOC went beyond a minor misstep or peripheral issue that could be overlooked in favour of the other factors considered. The Officer did not attempt to grapple with the balancing exercise that lies at the heart of any H&C adjudication in which a child is involved (para 13).
2024-10-02: Shehu v. Canada (Public Safety and Emergency Preparedness) – Judicial Review of the Decision an Inland Enforcement Supervisor of the Canada Border Service Agency Rendered
The Applicant sought judicial review of the decision of the Minister’s Delegate, who found that the 44(1) Report prepared against the Applicant (alleging 36(1)b of IRPA) was well founded and referred it to the ID for an admissibility hearing.
The Applicant (a permanent resident originally from Albania) argued that the Minister’s Delegate 1) failed to meet procedural fairness by refusing to disclose the documents he relied upon to render his decision to refer the 44(1) Report to the ID and 2) erred by ignoring the Applicant’s circumstances and written submissions when rendering said decision.
Madam Justice St-Louis affirmed that an Applicant is entitled to disclosure in the course of the s. 44 process ‘where the information sought is material and otherwise unknown and unavailable’, and reiterated the right for an applicant to know the case to be met, and to have a full and fair chance to respond to it.
The evidence revealed that the Reporting Officer who referred the file to the Minister’s Delegate had access to documents and considered information from these documents in their decision, for which the Applicant’s counsel requested disclosure and was told that there was nothing to disclose. This same information was then before the Minister’s Delegate. The Applicant was entitled to this disclosure.
2024-10-11: Singh v. Canada (Citizenship and Immigration) – Judicial Review of a Work Permit under the Temporary Foreign Worker Program
In a recent judicial review of a refused work permit under the Temporary Foreign Worker Program, Justice Roy held that the Applicant did not satisfy their onus of showing that the officer’s assessment was unreasonable.
The Applicant is a 27 year old from Punjab with two previous visitor visa refusals to Canada. Following a positive LMIA, he was offered a job as a farm labourer at Dhalian Farms in Aldergrove, BC, close to where his older brother resides in Abbotsford. He had been helping his father on their family farm since 2018.
The officer was not satisfied that the Applicant would leave Canada at the end of his stay and that his purpose of visit was not consistent with a temporary stay. The officer found that the Applicant did not have any land or crop sale receipts in his own name and noted his previous refusals to Canada. The officer concluded that the Applicant was not well established in India and that he had family ties in Canada.
Justice Roy re-iterated that immigration officers are entitled to considerable deference and that financial considerations are part of the assessment of an applicant’s intent to return to their home country. Here, it was for the Applicant to establish that he had strong social and economic links to India, which he did not do: the “moveable” and “immovable” assets he presented were all owned by his father. His links to India were weak such that the pull to return had not been shown to be significant. It was also unclear what the Applicant would gain by coming to Canada as a farm labourer. As such, the application for judicial review was dismissed.
2024-10-16 – Rafatipour v. Canada (Citizenship and Immigration) – an application for judicial review of a decision made by an overseas migration officer
The Principal Applicant (PA) applied for permanent residence as a member of the self-employed persons class with her intended occupation as a graphic artist. She listed her husband and son as accompanying family members. IRCC requested updated documents from the PA in relation to meeting the definition of a “self-employed person” under R88(1) of the IRPR. The PA submitted the requested information to IRCC.
The test under R88(1) is three pronged: an applicant must establish they have (1) relevant experience; (b) the intention and ability to be self-employed in Canada; and (3) the intention and ability to make a significant contribution to specified economic activities in Canada. The officer found that the PA did not meet prongs two and three of this test, writing in the GCMS notes that the business plan was insufficient and that there was a failure to demonstrate that there was a demand for their service.
Justice Southcott allowed the application for judicial review on procedural fairness, specifically that in concluding that the PA had not established their ability and intent to become self-employed in Canada, the officer made a veiled credibility finding relating to the material submitted in support of the application without affording the PA an opportunity to address this concern. The PA had included evidence of emails and responses sent to potential clients, but the officer noted that these responses were “almost word for word the same”.
According to Justice Southcott, the concern about the email responses being almost identical reads as a concern that these communications are not genuine, and it was incumbent upon the officer to provide the PA with an opportunity to respond, but this was not done.
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!
