2011 Global Immigration Targets

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LEXBASE SENDING 2011 - FEBRUARY

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IMMIGRATION POLICY AND OPERATIONS

1. THE 2011 “CIC TARGETS”! Immigration to reduce by about 5% - 13 yr wait for parents
We are grateful to Immigration Canada for providing the 2011 Targets under the Access to Information Act. We provide an
analysis of the choices CIC has made, for ‘who gets in, and from where’ in 2011. This is followed by Lexbase charts setting out
the 2011 CIC target numbers, per category, per mission. Targets may be subject to slight revision during the calendar year.
(1) LEXBASE GLOBAL ANALYSIS OF 2011 “CIC TARGETS”

Globally, Canada is planning for fewer immigrant visas to be issued from overseas processed posts: a reduction overall from
230,450 visas in 2010, down to 217,800 visas in 2011 …a drop of over 5%. However, there will be a slight increase in the
number of visas issued to provincially-selected immigrants, from 71,225 visas in 2010 to 73,600 visas in 2011, as well as a
slight increase in the number of visas issued to federal business immigrants (investors, entrepreneurs, and self-employed),
from 5,940 visas in 2010 to 6,000 visas in 2011. There is a planned decrease in the number of visas issued to federal skilled
workers from 69,915 visas in 2010 down to 55,900 visas in 2011.
Parents/grandparents: The planned decrease in 2011 in the number of visas to be issued to parents and grandparents will
likely attract public attention. As of October 1, 2010: there were 147,769 people waiting for visas (42,784 people with files in
progress overseas, and another 104,985 people with files at the intake centre in Canada, waiting for file-transfer overseas).
The number of visas is planned to decrease from 16,800 in 2010 down to 11,200 visas in 2011. There are 147,769 people in
queue for 11,200 visas.
At that rate, if a person applied today, they would need to wait a minimum 13 years for an immigrant visa, assuming ‘first-
come, first-served’ processing.
Australia will see just 20 visas granted in 2011 to parents/grandparents, down from 200 in 2010. Berlin goes down from 80
to 5. New Delhi will see the number of its visas drop from 4,500 in 2010 to 2,500 in 2011. Bucharest’s parent/grandparent
target descends from 520 in 2010 to just 35 visas in 2011. And only 5 people processed in Turkey will get visas in 2011.
It is currently taking 2.5 years to process the permanent residence application overseas. A person applying today will wait 10
years (minimum) for the sponsorship to be approved, as files are sent overseas only when there is target available.
There is a financial benefit called ‘deferred revenue’. When the sponsorship application is approved, the application forms
for permanent residence are created by CIC, and sent to the parents/grandparents for completion and return. The permanent
residence forms do not exist and cannot exist until the approval of the sponsorship application. However,
parents/grandparents must pay upfront both the processing fee for the sponsorship application ($75) AND the processing fee
for their permanent resident application ($1,025 per couple) at the outset even though a permanent residence process cannot
commence, or even legally exist, for well-over a decade. This money is categorized as ‘deferred revenue’ by CIC, and
represents a cash amount of $45 million for the Government of Canada. Forty-five million dollars collected for non-existent
applications. Heads up Auditor General!
CIC is aware of the issue. CIC would need to change a technical fee collection regulation to allow payment for the
permanent residence application after the approval of sponsorship, but changing the fee regulation may trigger the User Fees
ISSN 1203-0228 ‘LEXBASE’ Registered Trademark TM - 2 - © Copyright 2011 Lexbase
“NO REPRODUCTION OR DISTRIBUTION IN WHOLE OR IN PART LEXBASE VOLUME 22, ISSUE 2
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Act, which is a law passed in 2004, that, if applied to CIC, would require CIC to legally commit to a maximum processing
period for these files.
(2) LEXBASE REGIONAL ANALYSIS OF 2011 “CIC TARGETS”

The 2011 “targets” on the charts below represent the number of “people” (one visa given to each person). We have selected
for illustration on the charts below the total 2011 target for each processing post, and, the target at the processing post in 2011
for each of the following categories: provincially-selected immigrants; federal skilled workers; federal business (investor,
entrepreneur, self-employed); Quebec business; and parents/grandparents. Not shown on the charts below are all other
categories such as spouses, partners, and children (2010 target of 36,985; to 2011 target of 38,900), refugee (2010 target of
13180; to 2011 target of 13,200), etc.
(i) The Africa and the Middle East Region - 2011 Targets
It’s a mixed bag in 2011. Most increases in target are in the Economic Class (skilled worker, provincially selected
immigrants and business immigrants). Nairobi stands out, as it has been given an increased target for federal skilled
workers (250 in 2010; to 730 in 2011), an increased target for parents/grandparents (150 in 2010; to 370 in 2011), and
provincially-selected immigrants (850 in 2010; to 1000 in 2011). Tel Aviv drops its target from 1,960 visas in 2010
down to 1,185 visas in 2011. Bad news for parents in Damascus. The target has been reduced from 900 visas in 2010
down to 150 in 2011.
(ii) The Asia/Pacific Region - 2011 Targets

Overall immigration from the Asia/Pacific Region will reduce in 2011 with the exception of Beijing,where the overall
target is increasing from 7,785 visas in 2010 to 9,425 visas in 2011. Beijing has a remarkable increase in the 2011
target for parents/grandparents: 2,650 visas in 2011, compared to 1,000 visas in 2010. There will only be 11,200
parents/grandparents targetted to immigrate to Canada during all of 2011, and this means about one out of four
parents/grandparents immigrating to Canada during 2011 will come from Beijing. There are also some increases in
targets for parents/grandparents in Islamabad and Seoul, as well as an increase in business immigrants. No skilled
workers are to be processed in Islamabad in 2011, likely due to an administrative shift of processing to London.
(iii) The European Region - 2011 Targets

In Europe, overall targets in 2011 are reduced by almost a third. There are target reductions across the board, except
when it comes to Quebec Business visas (investor files). The significant exception is London which is designated for a
planned target increase in every category except parents/grandparents. Only 10 people processed from the United
Kingdom during 2011 are targetted to receive visas in the parent/grandparent category, compared to 320 visas in 2010.
(iv) The Americas - 2011 Targets

In the Americas, the trend is ‘downward’, with fairly slight increases in Latin America. Buffalo decreases its overall
target from 37,445 visas in 2010 to 32,025 visas in 2011. Targets for Business visas are increased for Mexico City,
Caracas, and Guatemala. Port-au-Prince receives a significant increase in target from 150 visas in 2010 to 650 visas
in 2011. Port of Spain significantly reduces its target for parents/grandparents from 340 visas in 2010 to 40 visas in
2011. Buffalo reduces the target for parents/grandparents from 710 visas in 2010 to 120 visas in 2011. Buenos Aires
has 5 visas available for parents/grandparents in 2011, down from 50 visas in 2010.
LEXBASE CHARTS: The 2011 Targets

Provincial,
Quebec, & Federal Federal Quebec Parents /
AFRICA / MIDDLE EAST Territorial Skilled Workers Business Business Grandparents
Nominees
Abidjan 2,400 to 3,425 1,230 to 1,920 200 to 175 NIL to NIL 20 to 20 60 to 5
Abu Dhabi 1,700 to 2,605 750 to 1,160 NIL to NIL NIL to NIL 230 to 400 60 to 150
Accra 3,060 to 3,005 415 to 850 750 to 700 80 to 50 20 to 10 270 to 50
Cairo 3,370 to 3,440 1,120 to 1,300 650 to 640 25 to 50 150 to 200 180 to 50
Damascus 12,660 to 11,740 4,000 to 4,500 1,600 to 830 300 to 250 600 to 450 900 to 150
Nairobi 5,555 to 6,580 850 to 1,000 150 to 730 5 to NIL 20 to 10 150 to 370
Pretoria 1,515 to 1,420 280 to 195 250 to 470 5 to 10 10 to 10 120 to 40
Rabat 4,915 to 3,155 3,720 to 2,005 200 to 140 5 to NIL 65 to 150 120 to 60
Tel Aviv 1,960 to 1,185 900 to 725 700 to 200 NIL to 10 10 to NIL 190 to 35
Provincial,
ASIA / PACIFIC Territorial Skilled Workers Business Business Grandparents
Nominees
Beijing 7,785 to 9,425 1,900 to 2,300 2,800 to 2,000 200 to 200 140 to 140 1,000 to 2,650
Colombo 3,135 to 1,935 90 to 50 1,000 to 500 5 to NIL 50 to 100 1,000 to 350
Hong Kong 15,800 to 14,735 4,850 to 3,000 1,500 to 3,500 2,500 to 2,200 4,000 to 3,540 1,100 to 450
Islamabad 5,185 to 3,975 550 to NIL 1,300 to NIL 50 to NIL 130 to NIL 365 to 945
Kuala
645 to 630 5 to 20 400 to 375 10 to 10 5 to 5 40 to 10
Lumpur
Manila 20,910 to 20,970 7,050 to 10,110 6,000 to 3,000 50 to 60 30 to 10 1,175 to 800
New Delhi 21,255 to 18,965 1,895 to 3,050 9,000 to 7,500 150 to 200 50 to 15 4,500 to 2,500
Seoul 3,945 to 2,951 915 to 830 2,000 to 900 600 to 830 15 to 100 160 to 40
Singapore 8,465 to 7,287 480 to 1030 3,500 to 1,100 50 to 100 40 to 80 700 to 945
Sydney 1,140 to 705 80 to 80 650 to 340 NIL to NIL NIL to NIL 200 to 20
Taipei 1,755 to 1,430 145 to 60 650 to 280 730 to 840 30 to 50 80 to 5
Tokyo 920 to 665 25 to 50 550 to 260 75 to 50 5 to 5 35 to 15
Provincial,
EUROPE Territorial Skilled Workers Business Business Grandparents
Nominees
Ankara 1,830 to 1,670 90 to 60 500 to 285 65 to 60 200 to 180 110 to 5
Berlin 3,590 to 2,115 1,700 to 1,000 1,400 to 700 125 to 100 NIL to NIL 80 to 5
Bucharest 3,355 to 2,925 2,100 to 2,425 400 to 200 5 to NIL 10 to 5 520 to 35
Kiev 1,685 to 1,592 750 to 900 200 to 300 NIL to NIL NIL to 5 440 to 25
London 17,150 to 21,332 1,140 to 2,070 14,000 to 17,500 500 to 600 20 to 125 320 to 10
Moscow 3,755 to 2,647 700 to 850 1,500 to 800 50 to 50 15 to 70 400 to 75
Paris 12,500 to 11,960 9,600 to 9,700 1,000 to 700 50 to 50 100 to 200 210 to 35
Rome 845 to 611 245 to 190 200 to 40 5 to NIL 5 to NIL 110 to 150
Vienna 1,120 to 680 275 to 210 300 to 90 NIL to 10 5 to NIL 200 to 30
Warsaw 2,300 to 2,535 70 to 130 2,000 to 2,200 5 to NIL NIL to NIL 100 to 5
Provincial,
THE AMERICAS Territorial Skilled Workers Business Business Grandparents
Nominees
Bogota 3,230 to 2,305 1,500 to 700 100 to 140 20 to NIL 10 to NIL 100 to 40
Buenos Aires 360 to 240 130 to 115 100 to 25 5 to NIL NIL to NIL 50 to 5
17,700 to
Buffalo 37,445 to 32,025 11,000 to 7,500 200 to 150 45 to 45 710 to 120
17,600
Caracas 1,250 to 960 430 to 420 600 to 260 NIL to 30 NIL to 30 50 to 60
Guatemala 1,245 to 1,280 270 to 220 150 to 140 10 to 20 NIL to 15 30 to 60
Havana 520 to 635 70 to 150 100 to 15 NIL to NIL NIL to NIL 30 to 5
Kingston 1,775 to 1,875 60 to 70 300 to 190 NIL to NIL NIL to NIL 160 to 110
Lima 1,230 to 715 520 to 315 300 to 30 5 to NIL 10 to NIL 70 to 35
Mexico City 1,235 to 2,585 455 to 1,650 200 to 300 30 to 50 NIL to 15 150 to 40
Port of Spain 1,975 to 1,310 65 to 50 700 to 565 10 to 10 5 to 10 340 to 40
Port au Prince 2,435 to 3,750 1,015 to 1,800 200 to NIL NIL to NIL NIL to NIL 150 to 650
Santiago 190 to 75 50 to 20 15 to 5 5 to NIL 5 to NIL 15 to 5
Santo
NIL to 655 NIL to 30 NIL to 125 NIL to NIL NIL to NIL NIL to 5
Domingo
Sao Paulo 2,110 to 1,060 1,040 to 640 800 to 150 10 to NIL NIL to 5 50 to 5
THE 231,225 to 71,225 to 69,915 to 5,940 to 6,060 to 16,800 to

WORLD 217,800 73,600 55,900 6,000 6,000 11,200
2. Canadian Embassy Reports

Summary Report for October 1 - 31, 2009: “Some missions (Beijing, Buffalo, London, Moscow, Singapore and Sydney) are
expressing increasing concerns about potential fraud. A few missions have expressed concerns with fraudulent Arranged
Employment Offers (AEOs), while other offices are seeing evidence of exaggerated work experience or letters from employers
that are tailored precisely to fit certain NOC codes. Changes to the FSW Program are currently being developed and provide
an opportunity to deter and weed-out fraudulent job offers by introducing a more rigorous assessment of AEOs up front. For
example, employers could be required to sign a statutory declaration which would clarify their obligations under the program
and consequences of participating in fraud. Two missions (London and Sydney) noted that it can be difficult to verify the work
experience or education of applicants who are ‘secondary migrants’ since the mission does not necessarily have the local
‘expertise’ about the applicant's country of origin to confirm their documents. For example, Sydney reports that the majority of
FSW applications subject to MI are from nationals of India, China, Iran, Pakistan, and Bangladesh who are in New Zealand
or Australia under a study/work permit.”
(1) HONG KONG December 1-31, 2009: “C-50 cases screened by our Case Analyst Unit: The main reasons for not
waiving: 1. fabricated 2. one-year minimum work experience was borderline for newly graduated applicants in Canada
3. applicants lacked language skills to meet AEO requirements.” “The majority of ‘ARE’ employers are Chinese
nationals; there was an increase in the number of consultants offering jobs to SW2 applicants. We are also seeing a trend of
one recently-graduated student applying then including as a common-law partner another student who does not have
sufficient employment history. Both couples tend to be very young students in Canada.”
(2) LOS ANGELES March 1-31, 2010: “During the reviewing period, we observed higher refusal rates under C-50 than pre-
C-50: among 63 SW applications processed in March, 21 were refused; while in February, 15 were refused out of 81.
Approx. 90% of the refused applications were under SW1 category. A large portion of these applications (SW1) indicated
that applicants declared experience in eligible occupations with the right NOC codes with employment verification letters
that their job duties were either tailored into the NOC descriptions or did not correspond to the descriptions. Among the
two groups mentioned above, the first group of applications were mostly represented by immigration consultants who were
mostly based in the U.S.A. The later mostly has no representatives. Most of the applications provided no language test
results. And majority of the applicants have home addresses in Texas state.”
(3) MANILA November 1-30, 2009: “Given in our pre C-50 caseload that we are processing cases submitted 4-5 years ago,
the interest on the part of the applicant sometimes wanes and rather than contacting us to withdraw they simply don't
comply with our requests for information which ultimately results in a refusal. Similarly, during a 4-5 year wait for
processing many pre C-50 applicants move and can no longer be located. This again would ultimately result in a refusal for
non-compliance.” February 1-28, 2010: “We continue to see a much higher positive selection rate in the C-50 group.”
Rates of positive vs. negative seldec in pre C-50 vs. C-50 (to end of FEB10)
Positive seldecs % of total Negative seldecs % of total

Pre C-50 1205 55.5% 965 44.5%
C-50 770 83.4% 153 16.6%
“As well, as we are processing cases submitted 4-5 years ago in our pre C-50 caseload, the interest on the part of the
applicant sometimes wanes and rather than contacting us to withdraw they simply don't comply with our requests for
information which ultimately results in a refusal. Similarly, during a 4-5 year wait for processing many pre C-50 applicants
move and can no longer be located. This again would ultimately result in a refusal for non-compliance. Although we have
many cases submitted with IELTS already on file, we have also been seeing cases without IELTS results. For some of the
cases without IELTS, when we request IELTS there are times when applicants don't comply with our request. This
sometimes results in a refusal based on points due to insufficient evidence of language ability. For the majority of the cases
where we don't receive IELTS results, the applicant does not provide an explanation as to why they did not submit IELTS
results. It will be interesting to see if/how OB166 will change application volumes (i.e. when all information including
IELTS must be submitted at time of initial application)….”
(4) MEXICO: November 1-30, 2009: “After passing the eligibility requirements, 19% of the applications did not pass the
selection criteria. Main reasons for not reaching points: applicants lacked of evidence of educational credentials reported
on applications. Same trend in respect to pre C-50 applications.” “Refusals are mainly related to lack of evidence of
educational credentials and exaggeration of declared language skills.”
(5) MOSCOW March 1-31, 2010: “Work continues on the pre C-50 inventory post selection. There is not much difference in
the acceptance rates between the two caseloads. The major differences between the two caseloads: with post C-50, we
encountered cases where applicants request more time to undergo language testing due to IELTS scheduling constraints.
Moscow is maintaining a hard line and recommending that applicants undergo their IELTS exams and be ready to submit
completed applications prior to applying to Sydney to avoid getting caught by the deadline. Applications submitted in post
C-50 cases without IELTS are not considered complete, and if the 120 day deadline has passed, refused.”
(6) SINGAPORE December 1-31, 2009: “Singapore has a small volume of stage B withdrawals, either because applicants
cannot assemble the documents in time, or due to personal reasons (e.g. a low IELTS result). This volume is decreasing - it
appears that applicants are getting the message that the 120 deadline is strictly adhered to.”
(7) TAIPEI February 1-28, 2010: “There is a significant difference in the approval rate for C-50 versus non-C-50 cases.
Approval rate for C-50 cases was 83% versus 75% of non-C 50. Withdrawal rates and refusal rates are also lower for C-50
cases.” “It is clear that application volumes have changed significantly since introduction of Ministerial Instructions. It
remains to be seen if the downward trend will continue or if numbers will increase as applicants and representatives
become more confident with the new application process. This mission does not/not have an unmanageable inventory of
new applications.”
3. Ontario requests formal information sharing with Immigration Canada

Wendy Quirion, Regional Program Advisor - Ontario Region to Andrew Brown, Director, Fraud Deterrence and
Verifications NHQ - Operational Management and Coordination - February 25, 2010: “We've been approached by the
Ministry of Transportation Ontario (MTO) requesting that a formal information sharing agreement be set up with CIC to
verify CIC generated documents for persons of concern applying for driver's licenses (DL) or enhanced drivers' licenses
(EDL). I've attached the e-mail for your reference. Given the ongoing concern regarding residency fraud in our programs across
Canada, it's quite likely that some of the activity of concern by MTO may be associated with CIC clients seeking Permanent
Resident Cards and/or Canadian Citizenship as the driver's license is a key document in support of residency in Canada. An
information sharing agreement could become a valuable tool in advancing program integrity within our CIC. The general trend
across the provinces is a movement towards the issuance of EDLs which clearly requires the verification of citizenship. CPC-
Sydney is the central point with respect to PR Card and Citizenship and they would be the logical single point of contact for
these Ministries. George Hill, Intelligence Officer, CPC Sydney (CPC-S) has confirmed that Sydney does not have an MOU
(Memorandum of Understanding) with MTO. Currently CPC-S is currently receiving requests from MTO to validate
citizenship certificates. They have been verifying the cards with a yes/no response and releasing no additional information. In
the attached e-mail they indicate that as volumes of requests are growing they recommended that MTO seek an MOU with CIC.
CIC Ontario supports the potential development of a national agreement between CIC and the Ministries of Transportation
across the country.”
4. Foreign diplomats are eligible as ‘skilled workers’

Hugo Genest, Consulate General, New York - March 5, 2010: “The principal applicant arrived in Canada in 2002 to work. A
copy of his passport with a counterfoil issued by DFAIT indicates that he is an accredited diplomat in Canada. As such, he
does not need a work permit as per R186(b). FOSS confirms that. Does the work he has done thus far in Canada counts when
assessing the eligibility of his file for a permanent residence application (skilled worker)?”
James Tieman, Analyst NHQ - International Region CIC-HQ - March 8, 2010: “Applicant is applying as an SW3 in CGNYC
and we would like to know whether working as a diplomat in Canada meets the MI criteria of ‘residing legally in Canada for
at least one year as [a] Temporary Foreign Worker’. I note that R186(b) allows foreign nationals to work in Canada without a
work permit as a foreign representatives. In my opinion, the applicant meets MI and is eligible for processing.”
Katherine Pestieau, Deputy Director to James Tieman - March 8, 2010: “I agree since I don't see how the diplomat status can
exclude one from qualifying as an SW3 in the Ministerial Instructions. However, to be clear, this work experience would not
be valid to qualify for adaptability points since conditions under R83(4) are not met.”
James McNamee, Acting Director, NHQ - Immigration - March 8, 2010: “I would agree that being a diplomat does not
prevent this person from being considered under SW3.”
5. How to process foreign diplomats

Jennifer Gelinas, Program Advisor OMC - Permanent Resident Program Delivery - April 28, 2010 Response to a request
from the Minister's Office for information regarding the process for a diplomat to become a permanent resident of Canada
“Question/Issue: What is the process for a diplomat to become a permanent resident of Canada. Response: If a person with
diplomatic, consular or official status in Canada would like to immigrate to Canada, they will need to decide under which
immigration category they would like to apply. Applicants must meet the requirements and follow the steps to apply for their
chosen category (i.e. federal skilled worker class, Canadian experience class, etc.) and submit their application. Additionally,
applicants with diplomatic, consular or official status in Canada must be advised that as well as meeting all other requirements
for visa issuance, they must: • prove their visa office informed the Diplomatic Corps Services that their assignment is over and
that the Diplomatic Corps Services cancelled their official acceptance; and • obtain an ordinary passport. If applicants cannot
prove their visa office has notified the Diplomatic Corps Services of the change in their status, they may submit proof of
cancellation of official acceptance alone. More information on the procedures for processing an application for permanent
residence from a person with diplomatic, consular or official status in Canada is found in policy manual OP 1, section 16.”
6. Truth in EMIS
Sarah Chung, Ontario Region - November 20, 2009: “I have questions to ask for your advice. 1) According to IP7, the
automated information is kept at EMIS [Entrepreneur Management Information System] for eight years. It also stated that
EMIS currently contains the records of EN2 granted PR from January 1994. Is this information still valid? When we look into
EMIS under ENs failed to report, we found many of them landed since 1993 and did not report to CIC. We wonder whether
some of them reported but the system deleted their information. 2) My understand is that under IRPA there are three decisions
we suppose to make in EN2 files. There are comply (business file closed), not comply (44 report) and favorable discretion for
cases that have extenuating circumstances (business file closed). Under old Act, there are comply, not comply and officer's
discretion. Are we allowed to use "Officer's discretion" in our decision under IRPA instead of favorable discretion? Favorable
discretion does not sound neutral to me. Furthermore, it was not mentioned about ‘favorable discretion’ in IP7. Your advice are
very much appreciated.”
Sarah Chung, Ontario Region - November 23, 2009: “We have cases where client has no information in EMIS but T&C's
remains outstanding in FOSS (T's&C's IMPOSED). Some clients landed before 1995. We came across this kind of situation
when clients came to pick-up their renewed PR cards. Please advise. Thank you.”
Erin Tierney NHQ, Immigration - November 23, 2009: “1) The records in EMIS are deleted 8 years after the last
administrative action. When a record is deleted, the entire client record is deleted from EMIS and not just the reporting
information. So if a client record still exists and shows that the EN has not been reporting, this information should be valid.
There should not/not be any records in EMIS where the client's tombstone data still exists, but where the monitoring
information has been deleted. In addition, to the best of my knowledge EMIS does not automatically delete records based on
these timelines - they must be manually removed. I will follow-up with our database folks to confirm this though. 2) In
essence, an EN2 file can only meet two outcomes - either compliance with conditions, or non-compliance with conditions.
Under IRPA, where discretion comes into play is in cases of non-compliance where an officer feels that there are compelling
reasons to forego an A44 report (or a manager feels there are compelling reasons not to action the 44 report for an
admissibility hearing). The factors for consideration when making this decision are not/not Entrepreneur specific, but instead
come from ENF 5: Writing 44(1) Reports (Specifically, section 8 of ENF 5 details the procedure for determining whether to
wrote an A44(1) report). You're right when you say that ‘favourable’ discretion does not sound neutral, but there really isn't an
equivalent ‘negative’ discretion. Discretion is only used to overcome a situation of non-compliance. We do not have a
legislative basis to use negative discretion in cases of compliance.”
7. Spouse swapping
Samantha Lee, Second Secretary, Immigration and Medical Services Division, Canadian High Commission, London “RE:
Swapping a principal applicant with spouse - March 16, 2010: Normally when an FSW principal applicant passes away and the
spouse still wants to immigrate, we require the spouse to submit a new application and new processing fees to start the
application process allover again. However, now that C50 has changed the requirements, sometimes the spouse will not qualify
under the new rules. We know that the OP states that the principal applicant cannot be switched after processing begins.
However, we recently had a case where the wife submitted a request for H&C consideration to become the principle applicant.
This request was refused, then it went to JR [judicial review] and BCL consented because the CAIPS notes did not show that
the H&C request had been considered - the officer only stated that there was no provision in the Act, Regulations or the OPs
that allowed switching of principal applicants. BCL instructed us to consider the H&C request. What is NHQ's view on
swapping principle applicants? Is it allowed when there are H&C grounds? Do the H&C grounds have to be strong?”
Kent Francis, Director, Operational NHQ - International Region March 26, 2010: “We'll take a look at this to come up with
definitive guidelines. It may take a day or two. However, some initial thoughts.” “LON has been asked to reconsider the
application, through consent, because there was a failure to examine H&C. Consequently this is not a ‘new’ application but an
assessment of the application, under the rules that were in place at the time of decision.” “The officer who assessed the
application the first time is correct, there is no provision now within IRPA to switch applicants. Therefore the assessment
would be restricted to the H&C consideration. If the officer determines there are sufficient H&C considerations then approval
must be obtained from either the IMP or OPS MGR. At the selection stage the Immigrant Category MUST be changed to
HC1. CAIPS notes must continue sufficient detail to indicate an informed decision was reached and the factors considered.
Continue processing in the normal manner.” “Should the officer determine that H&C does not exist then CAIPS notes must
clearly reflect the factors considered in reaching the decision in the event of a second JR.” “We'll confirm this next week with
BCL and Immigration Branch.”
8. Variation in the ‘reception rule’

Carol Turner, Senior Analyst NHQ, International Region - March 19, 2010: “Cut-off for no second chance provision
“Overseas applications are always considered ‘received’ when they are physically delivered to the embassy. FYI I do believe
CPC-M and others inland have a somewhat different definition - used to be ‘post-mark date’ although I am not sure if this is
still in use or not.”
9. Facilitators - first into CAIPS gets the payment

Erin Tierney NHQ – Immigration - May 19, 2010 IIP instructions re: facilitators “The instructions as drafted in 2007 still
stand. The only time an Investor's Acknowledgment should be accepted and logged into CAIPS is at initial application (SAP
for Investors). This is to acknowledge the work of facilitators who have been assisting their clients (with respect to financial
services and business integration in Canada – not to be confused with authorized reps) throughout the entire application
process, and to protect them from ‘poaching’ by agents or other facilitators.”
10. Questions/guidelines - what constitutes ‘management’?

Sean McLuckie Director, Visa Section, Canadian Trade Office in Taipei - May 19, 2010: “NV question - guidelines/case law
on what constitutes 'management’ “We have received a Fed NV application involving a commercial airline pilot. He is
claiming to meet the requirements of business experience as a result of ‘management of at least five full-time job equivalents’ in
the form of cabin/flight crew. We are wondering whether there has been jurisprudence or guidance on the definition of
‘management’. For example, how direct does the management need to be? Is authority/ability to provide direction sufficient?
Or, should there be elements of more commonly (?) understood aspects of management such as hiring/firing, appraisals,
performance management, recommending pay increases/promotions, and providing fairly specific direction/oversight on how
duties are broadly executed? While we have no doubt that a pilot of a commercial airline plane has authority over the staff
working in the plane, does this fall within the scope of the definition of management? Do we have any jurisprudence on this
type of issue?”
Erin Tierney NHQ – Immigration: “An investor should be required to demonstrate that he has five full-time job equivalents
reporting directly or indirectly to him (in a single business). There are no considerations such as the importance of the
management exercised or the place of the manager in the businesses hierarchy; i.e. a foreman supervising 10 sewing machine
operators will meet the standard while a senior project engineer managing only three engineers and their secretary will not.
I'm not aware of any jurisprudence on this subject, and wasn't able to locate any. Have you seen similar cases, or have any
general comments?”
Michael Bradley, May 19, 2010: “I would (and have) considered commercial pilots (and boat captains) to be managing their
crew/FTE's. We do not have a precise definition for what constitutes management and the manual is indicative of that; i.e.
broad interpretation anticipated and applicable. As you may recall, when we were developing IRPA we were going to restrict
‘business experience’ to business owners and senior managers with over 100 employees for both the investor and entrepreneur
classes. This would have been a substantive test regardless of what ‘management’ really entailed. So ‘management’ should be
given a broad rather than a narrow interpretation within this context.”
10. DNA… what does it say?

Kellen Scott In-Canada Protection Unit NHQ - Operational Management and Coordination - March 10, 2010
DNA STATISTICS BY REFERRING COUNTRY, 2009
Cases Number of Individuals Number of tests Number of Exclusions Exclusion rate

Canada 70 168 95 3 3.16%
China 161 521 390 30 7.69%
Ghana 439 1266 754 65 8.62%
Haiti 113 279 157 29 18.47%
Jamaica 49 75 78 6 7.69%
Kenya 150 443 292 33 11.30%
Pakistan 83 330 218 15 6.88%
Singapore 148 476 279 14 5.02%
Trinidad and Tobago 44 100 52 1 1.92%
Vietnam 38 114 45 1 2.22%
11. Illegal Immigration – The overview

Lenore Burton, Citizenship and Immigration Canada - Illegal Migration in Canada - March 12, 2010
Who are illegal migrants
• Also known as undocumented persons, irregular or unauthorized immigrants
• Remain in Canada when their permission to stay expires or have entered Canada illegally
• Included are: failed refugee claimants, visitors and persons on work or study permits who overstay
• Exact numbers not known
• Estimates vary from 80,000 to 120,000
• Estimated that Greater Toronto Area (GTA) accounts for half of the national figure
• Estimated they are lower skilled employed in construction, hospitality and service industries and home care
Nature of Problem
• Illegal migrants are a continuing concern for many nations and long term solutions are a challenge
• Workers are vulnerable to exploitation and economic downturns
• Workers may be employed legitimately or in the black market
• Governments are hampered in their ability to regulate the labour market and to collect taxes
• Industry and labour have argued there is a shortage of labour in some areas and sectors (construction in GTA)
• National security concerns exist (smuggling, trafficking, criminality)
Recent Trends
• Since 2001, Improperly Documented Arrivals (IDAs) from Western European airports and transpacific locations
declined by 71% and 77% respectively.
• In contrast in 2009 52% of IDAs arrived from a location in the Americas.
• PRC continues to be primary source of IDAs for 5th consecutive year.
• Mexico City the primary last embarkation point for IDAs, most of whom were nationals of countries located outside of the
Western Hemisphere.
• Increasing number of IDAs being intercepted abroad, before arrival. IDAs arriving at airports continue to gradually decline
and an increasing numbers are simply technical hits of persons on flights diverted to Canada or those seeking to visit or
transit Canada (primarily from U.S.) without requisite visas.
• Decrease in number of irregular marine migrants arriving in Canada, mostly due to overall decline in shipping traffic and
global recession.
• Also, tighter international shipping controls has reduced number of stowaways since 2004
• Since 2004, imposition of requirement for crew members to have temporary resident visa to enter Canada
Past Measures
Canadian history of regularizations
• 1973 Adjustment of Status Program (80K applications of which only 18K from illegal migrants)
• 1983 Illegal Migrants in Canada Program (50K applications expected, only 2,580 received)
• 1989 Backlog Clearance Program Generally resulted in limited success due to low uptake (H&C review of 80K refugee
claims, of which 24K were accepted)
Low participation rates in regularization programs

Canadian and international regularization programs have generally not been successful possibly due to:
- Financial penalties - including requirement to pay back taxes owed
- Potential for refusal, on grounds of admissibility
- Fear of being returned to country of origin
- Penalties outweighing perceived benefits
Results: - Varying degree of success

- Attracted more illegal migrants
Current situation
• A 2007 opinion poll survey shows the public supported deportation of undocumented workers (65%)
• In 2008, Standing Committee on Citizenship and Immigration hearings on temporary foreign workers and undocumented
workers
• Auditor General of Canada report in 2008 expressed concerns about CBSA lack of awareness of whereabouts of illegal
migrants in Canada
- Follow ups found many had left Canada
- Canada has no exit controls to track who has left
• Impact of 2009 economic downturn on illegal migrants unknown
- Loss of jobs particularly in construction industry
- Higher unemployment
Position of government since 2006

• While recognizing vulnerability of illegal migrants, Government concerned about maintaining integrity of immigration
program
• Number of legitimate avenues to meet economic and social needs of Canada exist (FSW, TFW, PNP, CEC)
• Question of fairness for workers waiting to be admitted to Canada legally
• Danger of rewarding individuals who do not comply with the rules
• Messaging recommends individuals return to country of origin and apply through legal means
12. Moving immigration files around the world …. might generate inquiries
Margaret Gass, Senior analyst, NHQ International Region - March 18, 2010 “Transfer of economic program: Islamabad to
London - OB or not to OB There is no intention of informing the 'old inventory' applicants of the transfer, since this will
generate enquiries before London is able to deal with these applications. When London begins to process an individual file, the
applicant will be advised of the transfer along with the request for updated documents. ISBD is not resourced to contact these
applicants in the present configuration of the move.”
IMMIGRATION JURISPRUDENCE (during previous 30 days) FEDERAL COURT

I. IMMIGRATION ISSUES
TRV refusal-did not provide truthful information during her interview-“questionable business activities”
1. MARGARITA GRAPENDAAL IMM-5137-08 2010 FC 1221 DECEMBER 3, 2010
MOSLEY J.: […] The Visa Officer refused […] on the ground that the Applicant did not provide truthful information during her
interview. […] She currently works for the private investment fund (“Onexim”) in Russia. The Owner/President of Onexim is Mr.
Prokhorov. [She] is […] responsible for managing [his] personal assets. […] Onexim was […] started by Mr. Prokhorov and his
long-time business partner Mr. Potanin […][and] controls assets of over $US 25 billion with a diversified portfolio of investments
[…]. Mr. Potanin is described as having been one of seven so-called “oligarchs” who donated large sums of money to Boris Yelstin’s
1996 re-election campaign. […] Her application stated that the purpose of her visit was “to visit friends” and “to attend [the] 2008 Ice
Hockey Championship”. In her interview […][she] added that she also wanted to visit Canada. […][T]he CAIPS notes indicate that
certain open source information suggested that the companies which employed [her], along with certain individuals who owned or
worked for those companies, are, or were, involved in questionable business activities. When repeatedly asked in the interview about
what she had heard regarding such “questionable activity”, [she] claimed she was not aware of any such activity. […]
I am satisfied that there continues to be a live issue between the parties as [she] still wishes to visit Canada. […] Both the Applicant
and the Respondent have demonstrated the adversarial nature of this case through their written advocacy and their commitment to the
issues. […][I]f the case is dismissed for mootness without a determination of the merits, the likely result will be that the Applicant
will reapply for another visitor’s visa. If, at that time, the Applicant is rejected, she may again choose to seek judicial review. Adding
yet another step in the Applicant’s process would result in the expenditure of additional judicial resources. Thus, it is more
economical to decide this case on the merits at the present time. […]
The CAIPS notes […] clearly demonstrate a particular line of questioning surrounding [her] employment and certain “questionable
activity” associated with the companies and individuals with which and with whom she works or has worked. […] When asked what
she knew of this alleged activity, [she] responded that she had never heard anything negative about the companies. She asked if the
Visa Officer was referring to an incident involving Mr. Prokhorov in France that was unrelated to the allegations of money
laundering and criminal activity. The Visa Officer said, “Not specifically about that incident, more regarding the various companies
and their activities”. Again, the Applicant said she knew nothing. She went on to speak about the individuals for whom she worked
and the regular interaction she had with them. The Visa Officer then asked her, “and in all your time with them (since 2001) you have
never heard or witnessed anything that might suggest any questionable business activities, either from within the companies or rival
business partners or the newspapers”. The Applicant said, “No” and proceeded to mention the fact that there was a splitting of assets
between the companies which the newspapers had been noting. This was not responsive to the question about her knowledge of
questionable activities.
Although the Visa Officer did not refer to specific open sources, in light of the line of questioning asked it is difficult to accept that an
educated individual with a long history of having close connections to companies allegedly involved in this kind of criminal activity
would have absolutely no awareness of issues which were openly discussed in the media. At the very least, taking into account the fact
that the information was available in open sources, including newspapers, it is hard to believe that [she] did not know that the
companies and/or individuals were the objects of suspicion. There is no indication in the record that [she] is a naïve or unsophisticated
individual who might have been unaware of such matters. To the contrary, she is a businesswoman with considerable employment
experience and responsibilities. In passing, as this was not raised in argument, I note that the CAIPS notes state that [she] was to bring
along a “detailed CV” to the interview. She did not do this. When asked why not, she responded, “This interview notification came
late and our office is close[d] so there is nobody there to print my CV”. When the Visa Officer noted that she was given a choice to
come in on a different date, [she] replied that she is “busy”. The Visa Officer asked why she could not prepare her own CV at home,
to which [she] responded, “I don’t have a computer at home”. The Visa Officer told her a handwritten CV would have been
acceptable. [She] said she did not think that was professional. Section 16(1) of the IRPA requires those who make applications for
TRVs to produce “all relevant evidence and documents that the officer reasonably requires”. [Her] failure to produce her CV when
specifically asked to do so would hardly have cast her application in the best light in view of the focus of the Officer’s concern. […]
The Visa Officer’s observations of her demeanour undoubtedly contributed to the finding that [she] was not truthful in answering the
questions in the interview such that it diminished the credibility of her submission and that [she] failed to discharge the burden of
proof that her admission to Canada would not be contrary to IRPA. On the basis of the record before me, I am unable to find that the
officer’s conclusions fall outside the range of acceptable outcomes defensible on the facts and the law. […]
Did the visa officer provide adequate reasons? […][She] argues that she was not provided with sufficient reasons in order for her to
know the case against her. She points to the “boiler plate” form which indicated the TRV rejection, claiming that it was devoid of any
reference to the information provided by her in the application or the interview. [She] further contends that the CAIPS notes did not
provide sufficient details for her to know why the application was denied. Thus, she claims her procedural rights were breached. […]
Throughout the interview, [she] had ample opportunity to address these issues and to disabuse the Visa Officer of any concerns. She
made no attempt to do so. In fact, when pressed on the subject, she made reference to another, unrelated issue, namely a trip Mr.
Prokhorov took to France. I think it was made clear to her what the Officer’s concerns were during the interview and the CAIPS
notes reflect that. I therefore find that the Visa Officer provided adequate reasons and did not breach the Applicant’s right to
procedural fairness. [Application dismissed]
COUNSEL: WARREN L. CREATES PERLEY-ROBERTSON, HILL & MCDOUGALL LLP OTTAWA
Restoration-int’l student-marijuana smoking and affiliation with known criminals-poor academic performance since arrival
2. KWAKU AMAKYE BANFUL IMM-1498-10 2010 FC 1321 DECEMBER 22, 2010
KELEN J.: […] Did the officer err […] when she found that the applicant did not satisfy the requirement of a bona fide student
leading to the refusal of his application for restoration of status as an international student? […] Although the Immigration Officer
may not have used the correct terminology when referring to [his] academic history, it is clear that the Officer’s assessment of [his]
bona fides as a student was based upon a consideration of his poor academic performance since his arrival in Canada. [He] has
provided no evidence to suggest that the facts stated by the Officer with regard to [his] marks or his time in remedial courses were
mistaken. […] With regard to the Officer’s erroneous statement that the applicant pleaded guilty to the cocaine charges, the Court
finds that this did not materially impact the decision. That statement was made in the Officer’s review of the facts but did not form a
basis for the decision. Instead, the Officer’s conclusion regarding [his] likelihood to comply with Canadian laws was based upon the
officer’s findings regarding [his] admitted marijuana smoking and his affiliation with known criminals: He self-admitted illegal
activity (being a pot smoker) to me at interview, as well as knowing and affiliating with criminals (Tian, an alleged Crips member,
and Stones his friend who grows pot). […][T]he Officer thoroughly reviewed the Applicant’s evidence and gave him an opportunity
to respond to all of her concerns. […] The Officer considered the Applicant’s explanations, but was not ultimately persuaded on a
balance of probabilities. As the findings were reasonable, this Court has no basis for interfering with the Officer’s decision.
COUNSEL: CASIMIR EZIEFULE WINDSOR
Sponsor-officer calls-She should have advised the inquiring officer of the other details of her other children
3. AMRITPAL KAUR SIDHU IMM 1847-10 2010 FC 1272 DECEMBER 14, 2010
BEAUDRY J.: The […] Case Processing Centre Mississauga (CPC), found the applicant to be ineligible to sponsor a member of the
family class because she did not meet the minimum necessary income (MNI) requirement. […] The Applicant stated that the Officer
called to clarify information regarding one of her children from her previous marriage but did not inquire about the other children
from that marriage and their custody arrangements. […] She now alleges that the application would not have been refused if the
purpose of the inquiry had been clarified during the said phone call, as she would have explained her reasons for not including the
other children living with her ex-husband. [Her] consultant also stated […] that there had been an error in checking the wrong box
[…]. In other words she wanted to keep her right of appeal. […]
[T]hough the decision to grant or dismiss an application to sponsor a family member is obviously important, but it is not such as to
affect the fundamental rights of an individual. […][T]he duty of fairness owed to the Applicant was low. [She] should have advised
the inquiring officer of the other details of her other children when she found that the officer was inquiring about one of her children
from her previous marriage. There was no obligation by the Officer to advise the Applicant of why she was making her inquiries
given the context of the decision to be taken. […][T]he Court is not persuaded that specific instructions were given to her consultant
that she wanted a safeguard of an appeal in the eventuality of a negative decision. I am also unable to conclude that CPC refused to
exercise its discretion to reconsider its decision. […] CPC did in fact exercise its discretion by refusing to reconsider because it was
not satisfied that the alleged error by the Applicant’s consultant was a satisfactory explanation. I do recognize that this is my
interpretation of CPC’s determination when I read “Unfortunately, this decision cannot be reconsidered where the sponsor erred in
the completion of this application”. [Application dismissed]
COUNSEL: MICHEAL CRANE TORONTO
The juxtaposition of [his] responses during the interview with the events described in the (PIF) completed by his spouse
4. KOPALAKRISHNAN KUMARASEKARAM IMM-1946-10 2010 FC 1311 DECEMBER 20, 2010
RENNIE J.: [His] wife and youngest son arrived in Canada in 2001, were granted Convention refugee status and landed […]. In
2005 [he] decided to join his wife and son in Canada. The visa was denied […]: “I am concerned that you make no mention at all of
about your detainment, arrests by the LTTE, continual extortion and burning of your house. I am not satisfied that you have
discharged your duty to demonstrate your admissibility. As such, I conclude that I do not have a complete picture of your background
and am not satisfied that you are not inadmissible to Canada.” The discrepancies […] arose from the juxtaposition of [his] responses
during the interview with the events described in the (PIF) completed by his spouse in support of the refugee claim. […] The Officer
also observes and records, that [he] was not “forthcoming with the required detail” during the interview. The CAIPS notes indicate
that the Officer was concerned about how [he] raised the money to finance the smuggling of family members out of Sri Lanka given
that, according to his version of events, all of the family assets were paid to the LTTE and he had been unemployed since 2003. The
Officer also noted that [he] sent his family members away from Sri Lanka but he himself remained under appalling conditions. The
Officer noted that one of [his] sons had criminal convictions in Canada and that [he] himself has been “unable to account for his
behaviour with the local [Sri Lankan] police.” […] The Applicant notes, correctly, that the Visa Officer was in error in his doubt as
to the source of funds for the wife and son's travel to Canada having not been explained, when there was an explanation in the record.
The PIF explained that siblings living overseas provided the money. The Officer was concerned about why the Applicant remained
in Sri Lanka. Here again, the PIF provided an explanation. Finally, the Officer notes concern that the Applicant did not mention that
his son […] had a criminal record in Canada, and that [he] did not elaborate on the life of his daughter. Counsel for the Applicant
contends that these are irrelevant considerations, the Respondent that these questions did not form part of the decision. A reading of
the decision and the CAIPS notes as a whole demonstrates that these were at best ancillary factors which underscored the Officer’s
concern about the lack of candour. They were not, on a fair reading of the decision, determinative of the finding but would have
reasonably informed the Officer’s conclusion that he did not have the complete picture of the Applicant’s background. […] I note the
Applicant’s argument that there was no affidavit filed by the Officer to support the inferences drawn from the interview. An affidavit
is not required in these circumstances, where the decision letter […] and the CAIPS notes, on their face, indicate both the
discrepancies and the inferences drawn by the Officer. The Applicant also contends that the Officer breached his duty of fairness in
not putting the specific discrepancies to the Applicant and in failing to provide him an opportunity to rationalize or justify the
discrepancies. A Visa Officer is not required to bring to an Applicant’s attention every adverse conclusion that the Officer may draw
from the evidence submitted by the Applicant. Such a duty could arise when the adverse inferences arise from facts or information
not otherwise known or available to the Applicant. That is not the situation here, where the information in question involved the
Applicant in a very direct and traumatic manner. […][Application dismissed]
COUNSEL: KRISTINA KOSTADINOV LORNE WALDMAN TORONTO
Misrepresentation-same person with different dates of birth on different immigration application forms-“incentive”
5. HAJERA KHATUN ET. AL. IMM-2213-10 2011 FC 3 JANUARY 6, 2011
PINARD J.: […] On the sponsor’s original immigration form in 2000, he […] indicated that his […] brother […] was (in 2000) 19
years of age. […] However, on his “Application to Sponsor and Undertaking” completed in November 2004, he indicated that his
brother’s date of birth was August 18, 1986. He claims that he accidentally wrote the wrong year on the 2000 form, and that
subsequent mistakes arose because he copied all information from one form to another without making any changes. […] The Officer
[Patricia Brown] noted the discrepancies on the forms regarding the year of birth […]. She noted that a birth year of 1980 would
mean that the applicant was not less than 22 years of age at the “lock-in date” of the application (November 5, 2004), and was
therefore not eligible to be sponsored as a dependent child. […] CAIPS […]: birth certificates in Bangladesh are obtained based on
self-declaration; passports in Bangladesh are based on birth certificates; school documents can easily be fraudulently obtained in
Bangladesh, and thus cannot be considered to outweigh the declaration on the sponsor’s immigration papers; even if the school
records are genuine, the school’s letter states that the date of birth on record is based on the admissions register, which would be
based on the family’s declaration; the sponsor made consistent declarations regarding his brother’s age on his original form, listing
an age consistent with the year of birth 1980. As the CAIPS notes are admissible as part of the reasons for the decision, and as these
notes provide details of the reason for rejecting each piece of evidence submitted, I find that the reasons are adequate and no breach of
procedural fairness occurred. Was the Officer unreasonable in finding that the applicants had misrepresented information? […]
[A]lthough the expressed reason that school documents can easily be fraudulently obtained in Bangladesh is not supported by
evidence, I find that, as a whole, the other reasons are nevertheless sufficient and reasonable. The CAIPS notes emphasize that the
sponsor not only originally listed the applicant’s birth year as 1980, but stated that the applicant’s age in 2000 was 19, which would
accord with being born in 1980. While it is possible that the sponsor could have genuinely miswritten the birth year, I find that it was
reasonable of the Officer to conclude that it was unlikely that he also happened to misprint the applicant’s age as 19 instead of 13 (the
age he would have been if he had been born in 1986 as alleged). The combination of these factors with the incentive to later change
the birth year to allow the Applicant to immigrate as a dependent child (a factor also alluded to in the CAIPS notes) could reasonably
lead to a conclusion of misrepresentation that would be difficult to overcome with documents based on self-declared information. […]
[Application dismissed]
COUNSEL: VIKEN G. ARTINIAN JOSEPH W. ALLEN MONTRÉAL
Marriage of convenience-disagrees with the manner in which the factors were weighed, but merely reiterates evidence
6. SUKHNINDER SINGH GILL IMM-174-10 2010 FC 1116 NOVEMBER 17, 2010
PINARD J.: […] His parents and two sisters are permanent residents […] having been sponsored in 1998 […]. [He] was not
sponsored […] because he was over the age limit, and was not a full-time student. […][She][…] went to India and took part in an
arranged marriage with the applicant; […]. She sponsored [him][…]. [He] alleges that upon his arrival, his wife informed him that she
had a boyfriend in British Columbia, and that she no longer wished to be married to him. […]. [He then] married an Indian citizen
[…] and applied to sponsor her […]. [H]e was reported for misrepresentation in his original application for permanent residence. […]
Timeliness of the investigation into the applicant’s marriage […][T]he transition provision in section 321 of the Regulations applies
only to reports that were already in existence, and not to conduct that had not yet been discovered; otherwise any misrepresentation
not discovered prior to the coming in force of the new Act would be immune from investigation. Genuineness of the applicant’s
marriage: [He] argues that as both he and his first wife had testified that the marriage was genuine, the IAD’s finding was made
without regard to the evidence before it, and constituted an erroneous finding of fact. [He] alleges that the discrepancy in the date of
separation between his testimony and the Statement of Claim for divorce came about because [his first wife] misrepresented the date
in order to get a divorce more quickly than she would otherwise have been able to do. [He] alleges that he was never able to correct
this date as he did not receive any notice of the proceedings until the divorce judgment. […][His] arguments merely repeat his
contention that the marriage was genuine, but do not point to any reviewable error made by the IAD. […] Humanitarian and
compassionate grounds: [He] argues that the IAD failed to reasonably consider the evidence presented in its decision that the [H&C]
grounds were insufficient to overcome the removal order. [He] alleges that the IAD wrongly determined that his sisters would take
care of his ailing mother, when [he] is the sole provider for his mother. He argues that he would face hardship in India, as he has no
immediate family there beyond his wife and son, and there is no guarantee that he will be able to find a job there in the video/music
business and be able to support his family. […][T]he Applicant has again failed to point to any reviewable error […]. He disagrees
with the manner in which the factors were weighed, but merely reiterates evidence that was before the IAD and adds additional
explanation, without showing that the IAD reached an unreasonable conclusion. [Application dismissed]
COUNSEL: RAMESHWER SANGHA SANGHA LAW OFFICE BRAMPTON, ONTARIO
Medical inadmissibility-Parents-granting of humanitarian and compassionate relief is discretionary

7. KATARINA ALEKSIC IMM-6201-09 2010 FC 1285 DECEMBER 14, 2010
MANDAMIN J.: […] The Applicant’s submissions sought to hold up her father’s past positive health history as predictive of future
health. That does not displace the medical officer’s prognosis based on the review of her father’s specific medical diagnosis and
comparison as against the normal progression of his illnesses. […] The IAD did not err in noting that the Applicant and her husband,
although health professionals, were not physicians qualified to give a medical opinion of her father’s health. The Applicant’s
evidence did not otherwise significantly challenge the validity and accuracy of the medical officer’s medical report. The Hilewitz
Arrangement: […][T]he Court extended the principles enunciated in Hilewitz to prescription drugs as long as the majority of the
funds for the prescription drug in question are not contributed by governments. However, the medical evidence shows that the
Applicant’s father would require more than medication and oxygen, and was expected to likely require ongoing care and management
by specialists in various fields of medicine, health services provided by government. There was no indication that the IAD
misapprehended the scope of health care services that the Applicant’s father would have required in the future. The IAD did not err in
rejecting the Hilewitz arrangement of having the Applicant privately pay for her father’s medical costs, since Hilewitz dealt
specifically with an applicant’s ability to pay for social services and not health services. […][T]he IAD conducted a proper analysis of
the visa officer’s refusal decision, taking into account the relevant medical evidence that was before the officer. Its conclusion that the
Applicant had not met her burden of proof is reasonable. Humanitarian and Compassionate Relief: […] The IAD was aware that
coming to Canada as visitors was increasingly difficult for the Applicant’s parents. The IAD also recognized the difficulty that the
Applicant would face if she had to move back to Serbia to care for them. It repeated in detail the Applicant’s argument about the
childcare support provided by her parents for the children and found the Applicant had options, while not convenient or easy, open to
the family. There was no indication that the IAD ignored or misapprehended any material aspect of the Applicant’s position. […]
[T]he IAD considered the Applicant’s concerns when making its decision, but it was reasonable for the IAD in the exercise of its
discretion to give greater weight to the enforcement of the medical inadmissibility provision under section 38 of IRPA. It was open to
the IAD to balance in the way that it did the policy of family reunification against the need to protect the Canadian health care system
from excessive demands on health services. The granting of humanitarian and compassionate relief is discretionary, and I conclude the
IAD did examine these humanitarian and compassionate considerations while balancing them out with the need to protect access to
health care services. […][Application dismissed]
COUNSEL: PREEVANDA K. SAPRU TORONTO
DNA test result 99.98% certain but DNA test result not before decisionmaker
8. JUANITA CASTILLO AFABLE IMM-1986-10 2010 FC 1317 DECEMBER 21, 2010
KELEN J.: […] Attached to her supplementary affidavit […] included the results of a DNA test […] subsequent to her hearing before
the IAD. […] The law is clear that judicial review applications are to be conducted strictly on the evidence that was before the
decision-maker, unless the additional evidence pertains to questions of procedural fairness or jurisdiction […] This Court has no
capacity to assess that evidence. Did the IAD err by ignoring relevant evidence in making its decision? […] The Court accepts that
the IAD has made a reviewable error because it failed to consider evidence submitted by the applicant that indicates that the applicant
and Eugenia are sisters. That is, the IAD rejected the purported birth certificates of the applicant and Eugenia, but failed to consider
whether other evidence could itself support their alleged relationship. […] Although the IAD rejected the authenticity of the two birth
certificates, the IAD nevertheless ought to have considered whether the other documentation was sufficient to establish the
relationship between the applicant and Ms. Lasalita. The applicant submitted two marriage contracts to the IAD. […][T]hese
marriage contracts had been accepted as authentic documents. […] Both marriage contracts list the names of the parents of the parties,
and the names of the parents of the applicant and of Eugenia are the same. The IAD accepted the validity of Eugenia’s marriage
contract. Although the IAD found that that undermined the legitimacy of the purported birth certificate, the IAD ought to have
considered whether it could itself constitute evidence of the relationship between the two alleged sisters when considered together
with the applicant’s marriage contract. [She] also provided school records showing the applicant’s shared parentage with Eugenia.
The IAD did not expressly consider [her] university transcript, which names both of her parents. The IAD did consider Eugenia’s
high school records, but did not refer to the fact that those, too, listed the names of her parents. The IAD did not appear to doubt that
Eugenia is Ms. Lasalita’s mother. As a result, had the IAD accepted that the applicant and Eugenia shared parents – that is, were
sisters – then the IAD would have concluded that Ms. Lasalita is, indeed, the applicant’s niece. Because the IAD stated that the only
evidence before it was the evidence referred to in the reasons for decision, and because the IAD failed to refer to probative evidence,
this Court concludes that the IAD committed a reviewable error […]. At that new hearing, the applicant can submit the results of the
DNA Analysis showing, as both parties agreed at the hearing, that the applicant and Ms. Lasalita are related on a probability
threshold of 99.98 percent. [Application allowed]
COUNSEL: H. JOHN KALINA MISSISSAUGA
H&C-tip alleged that the Applicant and her spouse were living separately
9. BIVIANA ELENA MENDOZA PEREZ IMM-2056-10 2011 FC 1 JANUARY 5, 2011
BEAUDRY J.: […] She attempted to claim asylum […] on August 1, 2005 but was denied because of the safe-third-country
agreement. […][She] claimed asylum for a second time in November 2005. That claim was turned down because of the earlier refusal.
[…][She] did not appear for removal. A warrant […] was issued on December 12, 2005, and later executed on May 14, 2008. While in
Canada, [she] became pregnant while in a short lived relationship. She thereafter began a second relationship with [Mr. Elvir], whom
she married on June 9, 2006. [She] claims to have been living with her spouse since that time. [Her] daughter was born […]
September 22, 2006. [Her] sponsored application for permanent residence was submitted on December 17, 2007. CIC received an
anonymous “tip” in December 2007 alleging that [she] had married for immigration purposes, and that the couple had taken a lot of
fake photos to prove their marriage. The person giving the tip also alleged that the Applicant and her spouse were living separately.
[…][They] were questioned separately, and then confronted with discrepancies. […] The Officer identified numerous discrepancies in
the answers given by both the Applicant and her sponsor. He confronted them and gave them the opportunity to respond but was not
satisfied with their explanations. Read as a whole, I find that the Officer cannot be faulted when she concluded that based on the
evidence, the marriage was not genuine and was entered primarily for the purpose of acquiring a status or a privilege in Canada.
[Application dismissed]
COUNSEL: WILLIAM SLOAN MONTREAL
H&C-analysis of interests of the children was superficial-marginalized their interests-in Canada for 13 years-Ethiopian girls
10. ALEMAYEHU WORKIE GELAW ET. AL. IMM-448-10 2010 FC 1120 NOVEMBER 9, 2010
ZINN J.: […][They] have been in Canada for a period of 13 years and 2 months as of the date of hearing. […][He] was posted to the
Ethiopian embassy in Rome. […][They] fled to Canada, arriving on August 27, 1997. Their refugee claim was denied on April 15,
1999. […][They] filed a second H&C Application on May 1, 2003. It is the decision rendered on that application which is
challenged. […] They did not become aware of that decision until March 2009 when they checked the status of their application
online. […][T]he applicants must show a real prejudice arising from the time gap, in addition to showing that the delay is
unreasonable […]. [They] have benefited from the delay, not been prejudiced by it. […] They chose to stay in Canada
notwithstanding the previous determinations that returning to Ethiopia posed no risk; that was a decision of their making, not a
circumstance forced upon them. The exercise of all avenues of legal recourse is not a circumstance beyond the control of judicial
review applicants. There is insufficient evidence before the Court to find that the conditions in Ethiopia have materially changed in
the period between when the decision was made and when it was given to the Applicants. […][T]he officer’s decision was ultimately
governed by the same legislation and case law. […]
The question is whether this officer found insufficient evidence to assess the children’s best interests. The answer is that the officer
did not. […][T]he officer does refer to the applicants’ lack of evidence. However, this is done to demonstrate that the evidence
presented was insufficient to prove particular facts on a balance of probabilities. This is different than saying that there is insufficient
evidence to make an assessment. […] The officer had sufficient information to make an assessment […] and noted that there was
insufficient information to support the applicants’ position. Therefore, I find that there was no reason for the officer to raise these
matters with the applicants. […]
Best Interests of the Children: […][T]he officer’s analysis of the interests of the children and, in particular, of the two younger
Canadian children, was superficial and marginalized their interests, and that when the decision is read as a whole, it cannot be said
that the officer was alert, alive and sensitive to their interests or properly analyzed them. […] The officer concludes that the children
will successfully adjust to life in Ethiopia and that any difficulties they face “fall in the unfortunate but common consequences of
leaving Canada as the result of deportation.” […] The documents placed before the officer identified conditions in Ethiopia which
cannot be described by any reasonable person as “difficulties” nor can they be properly described as being the “common consequences
of leaving Canada.” […] According to the World Health Organization, Ethiopian girls are exposed to violence and sexual abuse,
including rape and abduction. This affects girls’ physical development as well as their mental and social well-being. Women in
Ethiopia are 200x more likely to die of complications due to pregnancy. Their low status in society puts them at increased risk.
[…][T]o conclude that removing these children (two of whom are Canadian-born) to a country where they face serious risks that
include early death, rape, starvation, abduction, forced marriage, and violent discrimination as being no more than the usual and
ordinary consequences of deportation is perverse. […][I]t was incumbent on the officer to consider the degree of hardship the children
would face in Ethiopia. […][T]hat required the officer to consider the risks children face in Ethiopia. In the face of evidence of the
serious and significant risks to children in Ethiopia, the officer’s conclusion that the hardship they faced “in this situation is one faced
by those having to leave Canada after a lengthy period of establishment” shows that the officer failed to appreciate the task he or she
was required to undertake. […][T]he only factors identified as weighing against allowing the H&C Application were that the
applicants had no right to be in Canada, that they had been ordered removed, and that they had the benefit of many of the processes
available under the immigration legislation. These negative factors are common to most if not all H&C applications. There was no
evidence that the applicants had been anything other than law abiding, independent and productive members of Canadian society.
While the weighing of the positive and negative factors is for the officer assigned to the H&C application and not this Court, one
must ask how much weight was given to the children’s interests, including the fact that none of them had ever been to Ethiopia, when
the negative side of the balance sheet is so slight. […][Application allowed]
COUNSEL: PETER W. WONG CARON & PARTNERS, LLP CALGARY
PRRA-adequate state protection in St. Vincent-domestic violence

11. SONJA JENEFER DA SOUZA IMM-2259-10 2010 FC 1279 DECEMBER 13, 2010
LEMIEUX J.: […] The availability of adequate state protection is the only issue […]. The PRRA Officer indicated […] because Ms.
Da Souza had been away from St. Vincent for almost nine years, there was insufficient evidence to indicate her ex-partner is still
interested in harming her. […] The crux of the PRRA Officer’s state protection analysis turns on the fact Ms. Da Souza never sought
the protection of the State by filing a complaint with the police in St. Vincent. […][T]he fact a claimant did not approach the state for
protection will not automatically defeat a claim. An objective assessment must be undertaken to establish if the state is able to protect
effectively. In other words, the test is whether effective state protection may be reasonably forthcoming. What has to be determined, in
each case is whether it was objectively unreasonable for the claimant not to have sought the protection. If it was not objectively
unreasonable for Ms. Da Souza not to have sought state protection, she need not have approached the police in St. Vincent. The
answer to this question is a matter of the evidence produced on the point. The fundamental error the PRRA Officer made in this case
is that he did not engage in any analysis to answer that question. The PRRA Officer acknowledges violence against women remains a
serious problem in St. Vincent. He did not confront the contrary evidence found in the two Country reports concerning St. Vincent
he relied on. He ignored other relevant documentation. More particularly, he ignored the numerous decisions of this Court which
have determined no state protection was available to women subject to domestic violence in St. Vincent in the particular
circumstances of the facts in those cases. […][Application allowed]
COUNSEL: NONE STATED
Limiting the definition of “openly gay” to commercial sex workers and transvestites
12. A.B. IMM-2984-10 2010 FC 1332 DECEMBER 23, 2010
MANDAMIN J.: […] The Officer noted that the report of violent incidents against homosexuals in Guyana largely involved “openly
gay” persons, which the Officer saw as defined as someone engaged in commercial sex work or transvestitism, neither of which
applied to the Applicant. […] In limiting the definition of “openly gay” to commercial sex workers and transvestites and concluding
with his remarks about exercising discretion, the Officer in effect only examined the risk of cruel and unusual treatment for two types
of homosexual persons: commercial sex workers/transvestites, and homosexual persons who are discreet in public about their sexual
orientation. Nothing about [his] history suggests that he would fall into either category. […][His] history suggests that [he] has lived
his life being openly gay, that is, in the conventional sense of being open about his sexual orientation. In conducting a risk analysis
based on the assumption that [he] would not be openly gay in this manner in Guyana, the Officer made an error in his analysis. […]
Nor was it the Officer’s place to speculate that the Applicant would choose wisely to be discreet. […] The Officer’s risk assessment
is incomplete and as such, the Officer’s decision is unreasonable and constitutes a reviewable error. [Application allowed]
COUNSEL: BRENDA J. WEMP VANCOUVER
Stay-éléments invoqués au chapitre du dommage irréparable sont ceux que les demanderesses ont déjà invoqués par le passé
13. GLADIS EUGENIA ET. AL. IMM-5939-10 2010 CF 1293 15 DÉCEMBRE 2010
SHORE J.: […] Question sérieuse: […] L’argument le plus important démontre que plusieurs preuves qui ont déjà été déposées (ou
qui auraient dû être déposées) devant la SPR, invitant indirectement cette Cour à se pencher une seconde fois sur le bien-fondé de la
décision rendue en 2008 par ce tribunal administratif. Or, il y a chose jugée quant à cette preuve puisque la DACJ des demanderesses,
à l’égard de la décision de la SPR, fut rejetée le 25 juin 2008 (c.-à-d. le dossier IMM-1421-08). Préjudice irréparable: […][L]esdits
éléments invoqués au chapitre du dommage irréparable sont ceux que les demanderesses ont déjà invoqués par le passé – à savoir soit
devant la SPR, soit devant l’agent d’ERAR et que ces derniers n’ont pas retenu. […][E]ncore une fois, il s’agit à l’évidence d’une
pièce qui vise à renforcer ce qui y a déjà été rapporté (ou aurait dû avoir été rapporté) devant la SPR et/ou l’agent d’ERAR. Balance
des inconvénients: […][L]e fait que les demanderesses aient déjà pu bénéficier de nombreux recours depuis leur arrivée au Canada
peut être pris en considération dans l’appréciation de la balance des inconvénients. La balance des inconvénients penche clairement en
faveur du ministre. […][Application for stay dismissed]
COUNSEL: MARIA FANNY CUMPLIDO HERNANDEZ NEXUS LEGAL SERVICES INC. MONTRÉAL
Detention-no analysis as to why he would not be under the influence or even coerced by people to whom he is still indebted
14. B157 [RESPONDENT] IMM-6862-10 2010 FC 1314 DECEMBER 20, 2010
DE MONTIGNY J.: […][T]he Respondent is one of the 492 Sri Lankan migrants who recently arrived on Board the M.V. Sun
Sea […]. There is not a scintilla of analysis in the Member’s reasons as to why the Respondent […] would not be under the influence
or even coerced by the people to whom he is still indebted. […] Once the Minister had established that the Respondent had been
smuggled into Canada and still owed money to the people who arranged his journey to Canada, the factor enumerated in subsection
245(f) of the Regulations was engaged, and it was incumbent on the Respondent to offer contrary evidence sufficient to convince the
Member that he should not be detained despite this factor. No such evidence was presented to the Member, who was therefore left to
speculate that the Respondent would not flee without ever coming to grip with subsection 245(f).
The Board Member also assumes that [he] would not go underground on the basis of the fact that he has been “very frank and
forthright” with CBSA about his sympathies for the LTTE and “completely co-operative”. There are, however, two problems with
this finding. First of all, candor and honesty are not listed among the factors to be taken into consideration for the purposes of s. 58 of
the IRPA. More importantly, the Member was at the very least generous in his assessment of the Respondent’s behaviour, as it was
not borne out by the evidence that was before him. The various interviews conducted by CBSA officials show that he was evasive on
key points of his story (the details of how he was smuggled and the amount owed to the smugglers, the origins of his scars, etc.) and
often made admissions only when pushed. […][T]he Member described [his] involvement with the LTTE only as acting in a film
essentially produced by the Tamil Tigers, while the evidence suggests that [he] worked for the LTTE from 2006 to 2009 as a karate
instructor.
Counsel for the Respondent objected to the Minister raising the Respondent’s credibility before this Court, on the ground that it had
not been raised before the Member. […][T]he Respondent’s file was before the Member, and he was presumed to be aware of it.
Moreover, the Member himself raised the credibility of the Respondent and relied on it to some extent to ground his views that he
would likely appear to further immigration proceedings. In those circumstances, it was perfectly legitimate and appropriate to address
it in the submissions made to this Court.
With respect to subsection 245(g) of the Regulations, the Minister submitted that the Respondent is not married, has no children,
has no home or job in Canada, and that his sole family member in Canada is the Respondent’s sister’s brother-in-law, whom the
Respondent has never met. […] It may well be that “[R]efugee claimants are commonly released without knowing anyone in
Canada”, but the Member failed to consider that the Respondent was not a “usual” refugee claimant. Specifically, the Respondent
arrived in Canada with 491 other individuals via a sophisticated, organized, criminal human smuggling operation; there was
substantial evidence that [he] had longstanding ties to the LTTE; and the Respondent was reported under section 34(1)(f) of the
IRPA. In light of these special circumstances and of the very tenuous ties of the Respondent to a community in Canada, the Member
had an obligation to provide a more fulsome analysis as to why this factor did not militate in favour of the Respondent’s continued
detention, and to ground this analysis on established facts as opposed to mere speculation. […][T]he Member erred in his assessment
of the factors set out in s. 245 of the Regulations to determine whether a person shall be kept in detention. […] As for the Member
rejecting the Minister’s request that the Respondent be required to remain in Vancouver for the duration of the admissibility hearing
(which was upcoming), it is based on a totally unacceptable and unreasonable reasoning. Instead of balancing the interest of the
Respondent in living with a distant relative in Toronto and the interest of the Minister to hold the admissibility hearing as quickly as
possible, the Member was content to speculate that there was “about a 99 percent chance” that the Minister would go to the Federal
Court and obtain a stay, and that “[the Respondent] is not going to get released anyways”. While this expression of frustration may
be understandable at a personal level, especially under the heavy workload borne by the Immigration Division Members since the
arrival of the M.V. Sun Sea with its 492 Sri Lankan migrants, it was improper and out of place to vent it in the course of his quasi-
judicial functions and it falls short of what may be considered reasonable. […][Minister’s application granted]
COUNSEL: SHEPHERD MOSS VANCOUVER
Stay-detention-Respondent owed smugglers an amount vastly superior to bond amount-a flight risk and vulnerable to smugglers
LEMIEUX J.: […][T]he Minister’s application for a stay of release must succeed. Serious issues have been established on a elevated
scale because (1) the terms of release were unreasonable in that the Member herself acknowledged the relationship with the
bondsperson was tenuous and was a ground for detention. As well, the Member did not examine the issue of that person’s capacity to
control the Respondent contrary to the jurisprudence and paragraph 47(2)(b) of the IRPR. A cash bond of 500$ is unreasonable
taking into account all relevant circumstances including the fact that the Respondent owed his smugglers an amount vastly superior to
the bond amount and by the Member’s own admission was a flight risk and was vulnerable to be influenced by his smugglers, (2) the
manner in which the Member approached and applied section 248 was unreasonable. […] The scheme of the IRPR requires a
balancing of relevant 245 and 248 factors. There is a serious issue whether the Member properly balanced the factors. (3) The
Member’s dismissing out of turn the danger to the public ground raised a serious issue on the fact that the Respondent admitted he
had worked for the LTTE and would have to establish the element of duress of which there was no evidence before me. Irreparable
harm flows for the reasons given by my colleagues on the impact of the public interest in the context of the administration of
Canada’s immigration laws and the balance of convenience favours the Minister as it maintains the status quo. […] I readily realize
the Respondent’s liberty interests are at stake and, under normal circumstances, release might be justified. But the manner in which
the Respondent arrived in Canada as part of a large smuggling operation tips the balance for the Minister. [Stay granted]
COUNSEL: GABRIEL CHAND CHAND & COMPANY LAW CORPORATION VANCOUVER
Detention-mass arrival-“significant time to resolve the public interest concerns of the country upon whose shores they have landed”
ZINN J.: […] Detention is not something to be taken lightly. It concerns me that the Minister throws around the ground of security in
the case where the person describes how they were prosecuted for something and found not guilty, and provides this information
voluntarily. […] The only justification for the woefully inadequate investigation here is the sheer volume of work faced by the
Minister. […][T]he Minister is not conducting this investigation in good faith. It is piecemeal. It lacks coordination. It shows
scrambling and an impromptu activity in the face of an upcoming detention review. It appears insincere and lacking a co-ordination.
Further detention cannot be justified on this ground.
In general, it is not difficult for the Minister to establish a reasonable suspicion, and in general, it is not difficult for the Minister to
establish that it is taking necessary steps. But as far as I’m concerned, since the last detention review, the investigation has proceeded
in fits and starts and could have been concluded by now had someone taken initiative and examined the matter as a whole. All of the
pieces have been sitting on the Minister's file since August. And while I appreciate that the Minister has been doing mostly identity
investigations, this information was on the Minister's file as far back as the 27th of August and the Minister has failed to act on this
information. So I'm not satisfied that detention can be continued on these grounds. While the Minister has a suspicion, it should have
been addressed and alleviated by now, or otherwise, if the necessary steps had been taken. They were not taken. The Member appears
to have engaged in an analysis of how the investigation ought to have been conducted without ever addressing the question of whether
the steps proposed by the Minister have the potential to uncover relevant evidence bearing on the Minister's suspicion which would
make them necessary steps within the meaning of the Act. The latter is the question that the Member was required to address. […]
The Member also appears to have considered that a piecemeal and poorly co-ordinated investigation coupled with an appearance of
insincerity proves that the investigation was done dishonestly or with male fides. This raises an issue as to whether the Member
applied the correct test in assessing whether the Minister’s investigation had been done in good faith.
While detention is not taken lightly, those who arrive en masse should expect that this extraordinary occurrence will require
significant resources and that it will take some significant time to resolve the public interest concerns of the country upon whose
shores they have landed. The Board should also be cognizant of this reality when assessing the measures taken by the Minister.
Although the Member said that he had taken into account the extraordinary circumstance of so many illegal migrants landing at once,
it is not evident to me that he gave it more than lip service. While it may be appropriate to expect that the Minister will take a
coordinated and focused approach when faced with one illegal immigrant landing at Vancouver Airport, it is hardly surprising that
when 500 land at a B.C. port the steps taken may appear to lack co-ordination and to be piecemeal. They probably are. Issues of the
identity of these persons of necessity must be dealt with first before any other issues are explored. In short, I find that the Minister has
established at least two issues that require further examination. […][T]he applicant has established that there is more than one serious
issue to be tried. […] The irreparable harm arises from the fact that the Minister has a security concern related to the Respondent and
there is a serious possibility that his release would defeat the purpose that underlies s. 58(1)(c) of the Act. […] Lastly, the balance of
convenience rests with the Minister. The Respondent shall continue to have his regular detention reviews and the Minister will
continue his investigation. If the Minister’s suspicion is satisfactorily addressed, the Respondent shall be released from detention.
The applicant asks that the stay be in effect until the application for judicial review is determined on its merits. […][T]he Respondent
is entitled to the detention reviews every 30 days whether or not a stay of a release order is granted by this Court. In order to make
that clear, the stay shall be granted until the earlier of either the determination of the Minister’s application for judicial review on the
merits or an order of a Member of the Immigration Division releasing the Respondent from detention following a statutorily
required detention review hearing. [Stay granted]
COUNSEL: DOUGLAS R. CANNON ELGIN, CANNON & ASSOCIATES VANCOUVER
Costs-“Things only began to happen when she retained Mr. Boulakia”

17. SUAAD HAGI MOHAMUDA T-1173-09 2010 FC 1294 DECEMBER 15, 2010
HARRINGTON J.: This is the background to a fiercely contested motion for costs. […] The KLM gate staff thought the person
before them did not match her passport photo. Paul Jamieson, a migration integrity officer with the Canadian High Commission,
was consulted. He did not have time to get to the airport, but, based on a telephone interview, was also not satisfied that the individual
with whom he was speaking was the rightful holder of the passport. […] Mr. Jamieson interviewed her twice more, in person, over
the next few days. […] Kenyan authorities were informed in writing that she was an impostor. She was arrested, jailed and charged
with fraud. […][T]hings only began to happen when she retained Mr. Boulakia, a well-known immigration specialist, who has been
acting pro bono. […][I]t was only two days after the filing of proceedings in this Court that the defendants agreed to conduct the
DNA test which led to Ms. Mohamud’s return home. […] If the behaviour of the respondents during litigation is in any way
questionable, it has to relate to instructing Mr. Jamieson not to answer questions and not to produce certain documents during his
cross-examination. However that matter was dealt with by Prothonotary Aalto who awarded costs of $5,000 and disbursements of
$3,602 […]. In light of the agreement between the parties, no costs should be awarded with respect to the interlocutory motion for an
order by way of mandamus. However with respect to events after 11 August 2008, although costs were the prime consideration, there
were some other issues which eventually fell by the wayside. In addition, there was never a settlement offer. The Respondents were
every bit as adamant as the plaintiff with respect to costs, either solicitor/client costs or nothing. Basing myself on Mr. Boulakia’s
time records for his work, and that of a law student, I hold that costs should be awarded calculated in accordance with Table B,
Column 3, high-end. […] THIS COURT ORDERS that the Respondents pay the applicant lump sum costs of $13,510.06 plus HST.
COUNSEL: RAOUL BOULAKIA TORONTO
III. REFUGEE ISSUES

Asylum claim made by Applicant, now 88 years of age, while he and his wife were visiting their two daughters in Canada
1. KHALEGH KHODABAKHSH IMM-2246-10 2010 FC 1340 DECEMBER 31, 2010
LEMIEUX J.: The RPD […] rejected […] the claim for asylum made by the Applicant, now 88 years of age, and a citizen of Iran.
He sought the protection […] while he and his wife were visiting their two daughters in Canada. […] His story was not believed. The
tribunal did not believe the substance of [his] fear which centered on the fact that Farah had converted to the Baha’i faith before
Farah left Iran in the 1980’s, conversion contrary to Iranian law, and because of this, he feared arrest, detention and interrogation.
[…] this Court’s intervention is warranted for the following reasons. […] The tribunal never made a finding that [his] story was
implausible. The tribunal based its credibility finding on contradictions, inconsistencies and omissions buttressed by the fact the story
was uncorroborated because Mahnaz never testified by telephone, never sent a letter confirming her conversation with her father and
her sister nor did she provide an affidavit to which may be added its finding that the objective evidence never indicated a similar
situation leading to its conclusion, it was not probable that the Iranian government would be interested in the Applicant. This
conclusion that the heart of the tribunal’s credibility findings rests on contradictions and omissions leads to the tribunal making the
following errors: 1. Breaching procedural fairness by not providing the Applicant or his daughter an opportunity to respond to these
inconsistencies. 2. The tribunal omitted to consider the explanation given for lack of corroboration by Mahnaz. 3. Failed to explain
why Farah’s testimony was found to be lacking credibility when the evidence show her testimony on the three contradictions raised
was the correct response and it was the Applicant whose testimony was off. 4. Insisting that the document evidence reveal an exactly
identical similar situated case was unreasonable. 5. The inconsistencies raised were largely irrelevant. [Application allowed]
COUNSEL: LOBAT SADREHASHEMI PIVOT LEGAL LLP VANCOUVER
Came to visit daughter-While in Canada, diagnosed with cancer-the Gender-based claim is subsumed in IFA analysis
2. MUMTAZ BEGUM IMM-630-10 2011 FC 10 JANUARY 6, 2011
RUSSELL J.: […][She] came to Canada to visit her daughter who was going to have a baby. While in Canada she was diagnosed
with cancer and has been receiving treatment. Naturally, now that she is sick, she does not want to go back to Pakistan, and she says
that she fears living alone there because she is sick, elderly, and female. [Her] fears, and her desire to stay in Canada, are entirely
understandable. But do these fears make her a Convention refugee? The only way that she can suggest she qualifies is by virtue of the
fact that, in Pakistan she would be a sick and elderly woman, living alone, and that similarly situated persons are discriminated
against in Pakistan. […][She] is advancing in years, she is sick, she has no obvious male protector, and she is vulnerable. She also
says that she fears her former neighbour and her tenant who have taken over her house and threatened her. Obviously, then, her ability
to obtain protection in Pakistan should she return is at issue. […][T]he RPD found that the Applicant’s fears concerning the SSP
were not credible. This was a reasonable finding, given the evidence. […] It is true that the RPD does not specifically characterize her
claim as gender-based, but my reading of the Decision is that the RPD identified [her] real fears, rejected that aspect of her claim that
was based upon the criminal activities and threats […], and then dealt with her fears of being elderly, female and alone by concluding
she has an IFA that would resolve those fears and that would also place her beyond the reach of [the people who threatened her]. […]
[T]he RPD’s failure to characterize and address [her] claim specifically as a gender-based claim is not fatal to the Decision, provided
the RPD’s IFA analysis addressed her gender-based fears.
The issue, then, is whether the RPD’s answer to [her] gender-based claim is subsumed in the RPD’s IFA analysis and whether that
analysis was reasonable. The RPD’s findings on IFA seem to assume that all of the Applicant’s problems will be solved if she moves
to Karachi to live with her grand-daughter and her daughter. […] It is never clarified by the RPD or Applicant’s counsel whether the
Applicant could reside at the grand-daughter’s house and count on the protection of the husband. However, […] once a claimant is
warned that an IFA will be raised, the onus is on the claimant to demonstrate that it would be unreasonable to require the claimant to
move. […][S]he does not really substantiate [her] fears or demonstrate that it would be unreasonable to require her to go to Karachi
and live with her family there. If [she] avails herself of the IFA in Karachi, she will be removed from her particular social group, in
that she will no longer be alone without a male protector. She will reside with her grand-daughter and the grand-daughter’s husband,
and she will have a male protector. This is a solution that goes to the heart of her fear in returning to Pakistan. With a male protector,
there is no serious possibility of the claimant being persecuted. True, she will still be elderly, sick and widowed, but she would be that
if she remained here in Canada. Also, she would enjoy better medical care here, but subparagraph 97(1)(b)(iv) of the Act precludes
claims based on inadequate health care in the country of origin. Although the Applicant believes that her safety will be at risk if she is
left alone with servants during the day, the RPD found that this is mere speculation and a generalized risk. […] There are other
avenues available […] if she wishes to remain in Canada. [Application dismissed]
COUNSEL: ALI M. AMINI TORONTO
Bias issue and Roma cases

3. IVANA CERVENAKOVA ET. AL. IMM-1798-10 2010 FC 1281 DECEMBER 13, 2010
CRAMPTON J.: […] She claims that she and her daughters were persecuted in the Czech Republic because of their Roma ethnicity.
She states that as a child, she was taunted by other children and by her teachers, was put in a lower grade school and was tied to a tree
on one occasion. After she had children and needed to take them to a doctor, she was required to wait in the hallway instead of in the
waiting room. Her oldest daughter […] was sent to a lower grade school and she was forced to leave her secondary school because of
racially motivated abuse. [She] further claims that when her youngest daughter […] was two years old, she contracted a form of
meningitis. When she took her to the doctor, the doctor provided negligent treatment. As a result, [the daughter] is now deaf. [She]
states that she wanted to take legal action against the doctor, but no one wanted anything to do with suing her. [She] also claims that,
at a school for the hearing impaired, [the daughter] was beaten by her teacher on at least two occasions. She states that she reported
the incidents to the principal, but nothing was done to resolve the situation. [She] also claims that she had a racist neighbour who
constantly kicked her door, threatened her, and beat and spat at her daughters. In addition, she alleges that her building superintendent
exposed himself […]. She claims that they moved to a larger city to escape their persecution, but they continued to face the same
problems. She also alleges that people often threw eggs, meat, bones or water balloons at her and her Roma neighbours. […]
There is a big difference between being biased and exercising, even consistently, one’s judicial responsibilities based on one’s
interpretation of the law. […][T]he mere fact that I rejected similar arguments in two previous cases involving different applicants is
not a sufficient basis upon which to conclude that an informed person, viewing the matter realistically and practically, and having
thought the matter through, would apprehend that I am biased in relation to the issue that the applicants in this case have raised in
respect of bias by the Board. […] To establish the existence of “substantial grounds” for a reasonable apprehension of bias, one must
go further and demonstrate that a judge “has been influenced by some extraneous or improper consideration,” (Geza), has made
“inappropriate declarations showing a state of mind that sways judgment in order to succeed” (Arsenault-Cameron), or has
prejudged one or more important issues. […] The evidence […] does not demonstrate the existence of “serious grounds” to support
this allegation. […] Having underscored that decisions in individual cases are made by an independent Board, on the facts of each
case, it was open to the Minister to express his concerns with respect to: (i) the dramatic surge in the number of refugee claimants
from the Czech Republic, immediately following the lifting of the previous visa restriction in late 2007; and (ii) the impact that the
surge was having on other refugee claimants, on Canada’s ability to process their claims, and on Canada’s refugee policy. It was
also open to the Minister to express his personal views with respect to the content of the two issue papers released by the Board in
June and July 2009. […][T]he Minister’s statements did not compromise the independence of the Board, even though he may have
been better advised to refrain from publicly commenting upon the extent to which he believed some refugee claimants from the Czech
Republic might not be genuine refugees. The Minister was also entitled to comment upon his perception of the underlying cause of
the surge in the number of refugee claimants from the Czech Republic. […][H]e appears to have had reason to believe that
“unscrupulous operators” in the Czech Republic were behind the surge. […] It was entirely open to the Minister to share that belief
with the public and to raise it in diplomatic discussions with representatives of the Czech Republic. It was also entirely open to the
Minister to seek to address the serious policy issues that he had identified by announcing a visa restriction on visitors from the Czech
Republic. […]
The decline in the success rate of refugee claimants from the Czech Republic: […] When one takes account of abandonments and
withdrawals, which accounted for approximately 54% and 81% of all such claims finalized in 2008 and 2009, respectively, the
adjusted level of acceptance rates for those years is approximately 30% and 10%, respectively. For the last two quarters of 2009, those
adjusted rates are approximately 4% and 0%. That said, it is important to note that the total number of claims rejected in the fourth
quarter of 2009 was only 13. In the first two quarters of 2010, the adjusted rate of acceptances was approximately 2%. However, over
70% of the finalized claims in that period were withdrawn or abandoned. […][S]cepticism of the relevance of statistics is particularly
warranted in this case. This is because, after conducting a fact-finding mission of conditions faced by the Roma in the Czech
Republic, the Board released the two issue papers […]. Now that I have had an opportunity to review the Board’s two issue papers, I
am satisfied that content of those papers provides an entirely plausible explanation for the decline in the level of acceptance of refugee
claimants from the Czech Republic, from the last quarter of 2008 to the second quarter of 2010. […][Application dismissed]
COUNSEL: GEORGE J. KUBES TORONTO
Bias issue and Roma cases

4. ROBERT ZUPKO ET. AL. IMM-2091-10 2010 FC 1319 DECEMBER 22, 2010
SNIDER J.: […] The Applicants relied on an April 2009 article containing the Minister’s comments, a July 2009 magazine piece
commenting on the Minister’s comments, and statistical information comparing the results of the Czech Roma cases before the Board
from 2008 and parts of 2009. […][T]his very issue of reasonable apprehension of bias has been considered and dealt with in three
separate decisions: Dunova v. M.C.I., 2010 FC 438; Gabor v. M.C.I., 2010 FC 1162; and Cervenakova v. M.C.I., 2010 FC 1281. […]
There are a number of exceptions to the principle of judicial comity […]: 1. The existence of a different factual matrix or evidentiary
basis between the two cases; 2. Where the issue to be decided is different; 3. Where the previous condition failed to consider
legislation or binding authorities that would have produced a different result, i.e., was manifestly wrong; and 4. The decision it
followed would create an injustice. In this case, none of the exceptions apply. […][E]ven if I were not to apply the principle of judicial
comity, I would still reach the same conclusion. […][T]here is no evidence – beyond a few reported comments and some questionable
statistics – that impugns the independence of the individual members of the Board. […][T]here is simply insufficient reliable and
persuasive evidence to conclude that the Minister’s comments raise a reasonable apprehension of bias in the decision making of the
Board on Czech Roma claims. Did the Board err by relying on the wrong test for state protection? […] Contrary to the submission
of the Applicants, the test for state protection is whether there is “adequate” state protection. […] Did the Board err in its finding
that the Female Applicant’s claim of sterilization lacked credibility? […][T]he Applicants could have requested corroborating
documentation from her treating psychologist “who was in fact helping her”. In the absence of any corroborating documentation, the
Board’s inference was not unreasonable. […] The shame felt by the Female Applicant and her demeanour do not alter the fact that
either she or the Principal Applicant could have tried to obtain documents from the hospital or the psychiatrist to support this critical
element of their claim. I also note that the Applicants were given an opportunity to provide further documentation after the hearing
and failed to do so; this failure certainly cannot be explained by the demeanour of the Female Applicant. […] I see no principled
reasons why the disclosure of a critical element two days before a hearing should prevent the Board from drawing a negative
inference from the absence of such element in the original PIF. […][C]laimants should include all important facts in the PIF and the
Board is entitled to draw a negative inference from a failure to do so. […][Application dismissed]
COUNSEL: MAX BERGER MAX BERGER PROFESSIONAL LAW CORPORATION TORONTO
“a rush to judgment facilitated the error made”- no reason is given why the new information was “not sufficient”-Hukou
5. SEN LIN LI IMM-2154-10 2010 FC 1289 DECEMBER 15, 2010
CAMPBELL J.: […][T]he conduct of the hearing leading to this conclusion exposes a fundamental fact-finding error. […][B]oth the
RPD Member and Counsel for the Applicant have expert knowledge of identity issues arising with respect to refugee claimants from
China. The RPD Member’s expertise played out during the course of the hearing by the Member stating his understanding of what
might be expected of the identity documents supplied by the Applicant, with Counsel for the Applicant responding with arguments
intended to dissuade the RPD Member from making negative findings. It is easy to conclude that the RPD Member’s confidence in
his knowledge allowed him to quickly engage on the identity issues during the course of the hearing and, following the hearing and
submissions by Counsel for the Applicant, to immediately orally render the negative decision which was subsequently committed to
writing. In my opinion, a rush to judgment facilitated the error made. It is uncontested that a Hukou is an important identity document
and no finding was made by the RPD Member that the original Hukou submitted by the Applicant was not his. […][O]nce presented
with evidence which showed that the finding […] was made in probable error and, as such, was very much to the benefit of the
Applicant’s effort to prove his identity, the RPD Member was required to carefully reconsider the evidentiary value of the Hukou.
To meet this obligation it was necessary for the Member to clearly state why the new information was “not sufficient”. Because no
reason is given, I find that the decision under review as unreasonable. [Application allowed]
COUNSEL: SHELLEY LEVINE LEVINE ASSOCIATES TORONTO
“unmentioned evidence of such great importance that the Board’s failure to refer to it in its reasons warrants the intervention”
6. NECATI KARAYEL IMM-1695-10 2010 FC 1305 DECEMBER 17, 2010
NEAR J.: […] After five detentions, the Applicant decided that he had to flee Turkey. He applied for and received a visitor’s visa to
visit his cousin in Canada. To protect his family, he divorced his wife. He waited for the divorce to be finalized and then made
arrangements to leave Turkey. [He] arrived in Canada […] and claimed refugee status five days later. […] The determinative issue
for the Board was credibility. […] There is nothing […] to show that the Board member turned his mind to the evidence – even if
only by one line of text to assign it no weight. This is unfortunate. The Board came to the conclusion that [he] had not been subject to
arrest or detention. This very finding is expressly contradicted by the unmentioned evidence. This evidence is relevant, specific to the
Applicant’s claim, and corroborates the Applicant’s testimony. […][T]he unmentioned evidence of such great importance that the
Board’s failure to refer to it in its reasons warrants the intervention of this Court […]. The Board Member […]: After the morning
recess the claimant’s counsel examined the claimant. During this examination the claimant provided details of the arrest. Given the
concerns above, and given the timing of this evidence which came after a 15 minute recess, a time during which I have no information
as to what conversations the claimant might have had, I do not find that it allays my concerns.
The Applicant submits that the Board in this passage makes a veiled accusation that counsel coached the Applicant during the
recess, in violation of the Rules of Professional Conduct. Having determined that the decision ought to be set aside on the basis of
ignored evidence, I do not need to decide this point. I would say, however, that the Board member’s wording is regrettable. The
excerpt would be inoffensive if it were not for the parenthetical thought “a time during which I have no information as to what
conversations the claimant might have had.” While the Board Member may not have had Applicant’s counsel in mind, it is an
inference that is there to be drawn, and it is inappropriate. Lawyers called to the bar of Ontario have a duty to abide by the Rules of
Professional Conduct and there is no such thing as a casual and inoffensive suggestion that they take this duty only half-heartedly.
[…][Application allowed]
COUNSEL: DOUGLAS LEHRER VANDERVENNEN LEHRER TORONTO
“RPD Member failed to provide clear reasons for this unsubstantiated conclusion which rests on nothing more than bald suspicion”
7. AYOKANMI DEJIA IMM-1560-10 2010 FC 1298 DECEMBER 17, 2010
CAMPBELL J.: […] The findings that I consider to be critical fall into two groups: those that are unsupported by the evidence on the
record; and those that are essentially implausibility findings for which there is no reasonable expectation. […] Erroneous Factual
Findings: […][T]he RPD Member found that “the union leader would have no authority to investigate the police”. […] Mr. Deji
never claimed at his hearing that the union or the union official wished to investigate the police. Rather, he explained that the union
official was going to assist him with the filing of his police complaint. […] The RPD Member took issue with letters supplied by Mr.
Deji in support of his refugee claim, writing that there “was no trustworthy evidence with regards to when the letters were written or
sent to the claimant”. […][T]he RPD Member failed to provide clear reasons for this unsubstantiated conclusion which rests on
nothing more than bald suspicion. As a result, the finding is unreasonable. Additionally, the RPD Member […] is more concerned
with the two dates of the death certificates rather than by the fact that there are two and on their face they are official documents. […]
Mr. Deji also explained at the hearing with respect to the two death certificates that one was issued in Ibadan, Nigeria and the other
in Lagos, Nigeria pending his brother’s interment under the auspices of a church official. […][T]he RPD Member’s finding that Mr.
Deji failed to supply a coherent or reasonable explanation with respect to the death certificates is unreasonable. Erroneous
Implausibility Findings: The RPD Member questioned the apparent failure of the police to seek a bribe in respect of Mr. Deji’s
release from the police custody when he had gastrointestinal issues. […] Counsel for Mr. Deji argues that it is unreasonable for the
panel to expect Mr. Deji to proffer a reason as to why the police did not solicit a bribe from him and further to make a negative
credibility finding on the fact that Mr. Deji was unable to supply an answer. I agree. […][I]t was unreasonable to expect an answer to
the question because Mr. Deji could not be taken to know what was in the mind of the police; anything he might say in answer to the
question would be speculation. Additionally, the RPD Member took issue with Mr. Deji’s flight from Nigeria, finding that he “had
no explanation with regards to why he left the country when he was in the midst of taking the police to Court for their corruption,
their illegal activities and the alleged death of his brother and the alleged unlawful arrest and detention of him and his father”.
Counsel for Mr. Deji argues that expecting him to confront his persecutors rather than flee is an unreasonable expectation. I agree.
COUNSEL: ADETAYO G. AKINYEMI NORTH YORK, ONTARIO
Albanian blood feud-State protection against vendetta

8. SAMI MURATI ET. AL. IMM-2066-10 2010 CF 1324 22 DÉCEMBRE 2010
LEMIEUX J.: […] Il y a plusieurs raisons qui mènent cette Cour a conclure que la décision du tribunal en l’espèce doit être cassée
[…]. [L]e tribunal n’a pas évalué toute la preuve dont elle disposait parce qu’elle a omis de prendre en considération les éléments de
preuve qui contredisait d’une façon importante sa conclusion sur la disponibilité de la protection de l’État pour les victimes d’une
vendetta. […][J]’estime qu’il y a plusieurs autres lacunes dans le jugement du tribunal: a. Le tribunal nous dit que la preuve
nécessaire pour réfuter la présomption qu’un État est capable de protéger ses citoyens est proportionnelle au degré de démocratie
atteint par l’État concerné mais omet toute discussion sur le niveau de démocratie en Albanie. Les jugements de cette Cour sur le
niveau de la démocratie en Albanie sont à l’effet qu’elle est en voie de développement et que l’Union Européenne exige des progrès
importants pour son adhésion comme membre. b. Le tribunal a erré lorsqu’il a opposé le CNR et la police. Le Parlement albanais
reconnait la CNR. La police et la CNR sont partenaires, la CNR a contacté la police dans ce cas la police étant au courant de ce qui se
passe dans ce cas M. Marku a lui-même contacté la police et les gens du service informatif national; ces gens connaissaient la
situation. c. Le tribunal a injustement mis en doute le témoignage de M. Marku sur la qusetion à savoir si la police prenait des
plaintes. M. Marku n’a jamais dit que la police albanaise ne prenait pas des plaintes des victimes de vendettas. Ce qu’il a témoigné
c’est que la police n’acceptait pas des plaintes du CNR à la police sur une victime d’une vendetta parce que c’est aux familles
victimes qui doivent faire les plaintes formelles à la police. d. Un facteur important qui ressort du témoignage de M. Marku est le
phénomène de la réclusion permanente (vivre caché en permanence) qui caractérise les victimes des vendettas en Albanie ce que le
conseiller des Muratis a soumis au tribunal comme indice de l’incapacité de l’État en Albanie de protéger les victimes de vendettas.
Le tribunal omet d’en discuter. […][Application allowed]
COUNSEL: STÉPHANE J. HÉBERT HÉBERT TARDIF AVOCATS S.E.N.C.R.L. MONTRÉAL
Albanian blood feuds-failure to properly consider corroborating evidence

9. XHEVDET YMERI IMM-6271-09 2010 CF 1316 22 DÉCEMBRE 2010
BEAUDRY J.: […] Le premier élément concerne la révélation de la responsabilité de la mort de Floryan Ymeri par la famille
Xhabafti. Après avoir lu la transcription, la Cour constate qu'il y a eu confusion à un moment donné à ce sujet mais il est impossible
d'en dégager une inférence de non crédibilité. Le deuxième élément est de savoir si oui ou non les personnes qui ont battu le
demandeur principal au mois de mars 2006 étaient masquées ou non. […][C]ette question est secondaire et n'aurait pas dû entacher
la crédibilité du demandeur principal surtout lorsqu’une preuve indépendante vient confirmer son hospitalisation et ses blessures.
[…] Le tribunal a aussi commis une erreur révisable en mettant de côté la pièce P-9. Ce document provenant du ministère de l'ordre
public, la direction de la police de l'environ de Tirana vient corroborer en tous points l'histoire du demandeur au sujet de son
agression le 23 mars 2006. Il en va de même quant à la pièce P-5 (République d'Albanie, Comité national de réconciliation, 15
septembre 2006). On y retrouve la mention de cinq meurtres, deux dans la famille du demandeur et trois dans la famille Xhabafti. Le
même document fait référence aux efforts de réconciliation des deux familles par des médiateurs mais avec un constat d'échec.
COUNSEL: NOËL SAINT-PIERRE SAINT-PIERRE GRENIER AVOCATS INC. MONTRÉAL
“newspaper employee” vs. “reporter”-unreasonable of Board to place so much emphasis on job title recorded by Officer in POE
10. VICTOR ADRIAN BECERRA VAZQUEZ IMM-2380-10 2011 FC 9 JANUARY 6, 2011
PINARD J.: […][I]t was unreasonable of the Board to place so much emphasis on the job title recorded by the Officer in the POE
notes. […][T]he question was not one of [his] general English skills, but one of a specific job title, which would involve a more
nuanced understanding of English, whether or not the Applicant needed an interpreter for the remainder of the interview. The
Applicant testified that most people will equate a newspaper employee with a reporter, and I find that it was unreasonable of the
tribunal to reject [his] explanation, considering that his problems arose when he was acting as a reporter in recording the Secretary-
General’s meeting. The tribunal did not consider this explanation at all. […] Letter regarding the Applicant’s employment: […]
The evidence relied upon to discredit the letter was [his] lack of credibility and therefore the likelihood that he had obtained the letter
fraudulently, and [he] was also found not to be credible because he had no corroborative evidence once the letter was discredited. I
find this to be unreasonable logic […], especially where the information in the letter was easily verifiable. […][Application allowed]
COUNSEL: STEPHEN FOGARTY MONTRÉAL
Extrinsic evidence-relying upon document ISR36779 for a list of options available to the Applicant in Israel-no disclosure
11. ANDREI KIRICHENKO IMM-688-10 2011 FC 12 JANUARY 6, 2011
RUSSELL J.: […] The first error is the RPD’s citing and relying upon document ISR36779 for a list of options available to the
Applicant in Israel. The extent of the RPD’s reliance upon this document is not clear from the reasons, but it was not part of the
evidence before the RPD and has never been made available to the Applicant. Hence, the Applicant was given no opportunity to
address at least one of the sources for the RPD’s finding on options available to him in Israel, which has now become the central
focus of this application. It is unclear what was in this document, but its date of 2001 means that whatever it has to say on point may
well have been superseded by other evidence before the RPD which is dated 2003 and later. Hence, I have to agree with the
Applicant that this breach of procedural fairness is highly material to the issue now before me and that the Decision would have to be
returned for reconsideration on this basis alone. This is not a situation where the Court can say that if the Applicant had been given
the opportunity to respond to the extrinsic evidence in question it would not have impacted the final decision. Nor is it a situation
where it can be said that the RPD used a country condition document from public sources that was available to the Applicant.
The second reviewable error results from the RPD’s failure to mention and deal with the documentation on the record which says that
conscientious objector status is not available to males in Israel. There is a Conscientious Objector Committee in Israel, but there is
no public knowledge of how it proceeds, or how to access it. There are no recognized standards of due process applicable to what the
Committee does, there is no right of appeal from any of its decisions, and there is evidence that men who express an interest in
conscientious objector status are not even referred to the Committee. […][T]here is no law allowing for conscientious objector status
in Israel and the so-called Conscientious Objector Committee is haphazard, secretive and difficult to access. I do not think that this
kind of vague and arbitrary scheme can really be called an “option” for anyone, including the Applicant. The Applicant testified that
he told an Israeli official that he did not want to serve in the army and that the official just laughed at him. No one referred him to any
kind of alternative scheme. This account would seem to accord with the evidence that was before the RPD to the effect that males in
Israel are not afforded a right to conscientious objector status. All of this is ignored by the RPD, which makes vague reference to
options without saying what could possibly be available to someone in the Applicant’s position. Reduced service, even if it were
available to the Applicant, is still service in the military, and the RPD had specifically rejected any kind of medical exemption
available to him. In other words, the whole notion of there being a way out for the Applicant through some available option that he
failed to apply for was, on this evidence, entirely illusory. In considering whether the Applicant should have sought state protection in
Israel before coming to Canada, the RPD both relied upon documentation that was not in evidence and not revealed to the Applicant
and totally ignored the evidence before it concerning the realities of the so-called Conscientious Objector Committee and the lack of
options for someone in the Applicant’s position. […][Application allowed]
COUNSEL: GERALDINE MACDONALD TORONTO
Confused quality of evidence which is “clear and convincing” with issue of standard of proof which is “balance of probabilities”
12. JERONIMO OCAMPO LOPEZ IMM-1748-10 2010 FC 1176 NOVEMBER 23, 2010
HUGHES J.: […] There is no issue as to credibility. [He] witnessed a drug transaction while out one evening near his home. He
reported this to officials of the Public Ministry. […]. He subsequently was assaulted by some of the same men involved in the drug
transaction, neighbours intervened and the police arrived. A report of the incident was given to the police who promised to look into
the matter. Nothing happened. [He] fled to Mexico City with his family and then to another city in Mexico. Threatening phone calls
followed him. [He] fled to Canada. His wife and child, because of limited funds went across the border to the United States. The issue
in this case is the adequacy of state protection. […][I]n the circumstances, [he] did what he could to report the incidences of threats
and assault to the authorities and to seek refuge elsewhere in Mexico. […] The Board Member […] confused the issue as to quality
of evidence which must be “clear and convincing” with the issue of standard of proof which is the usual “balance of probabilities”.
Thus vague evidence as to a phone call or document that cannot be found possibly may not be “clear and convincing” whereas, as in
the case here, a report from an agency such as Amnesty International and a news agency such as Reuters or the Wall Street Journal
is. Where such “clear and convincing” evidence is present it must be weighed on the “balance of probabilities”. Another error of law
is with respect to what is the nature of state protection that is to be considered. Here the Member found that Mexico “is making
serious and genuine efforts” to address the problem. That is not the test. What must be considered is the actual effectiveness of the
protection. […][T]he evidence is overwhelming in the present case that Mexico has failed to provide adequate protection. The
evidence shows ineptitude, ineffectiveness and corruption in the state agencies that the Member suggested could offer protection. […]
[Application allowed]
COUNSEL: DANIEL M. FINE TORONTO
Long delay in claiming-failed to establish the objective component of her fear

13. SHONTEL DION JOHNIM IMM-1683-10 2010 FC 1283 DECEMBER 14, 2010
BÉDARD J.: […] The Board found that the long delay between her arrival in Canada and the time when she claimed refugee
protection (a period of over six years) was incompatible with the attitude of a person who feared for her life. […][She] was sent to
Canada when she was 12 years old and, since that time, she has received only a very minimal level of education. […] The mere fact
that several of [her] family members were living in Canada says nothing about [her] knowledge of the potential for claiming refugee
protection. […] Ultimately, the Board did acknowledge that, “on its own, [the] long delay in claiming does not undermine the
claimant’s credibility.” However, it concluded that when examined “in the context of all of her evidence, it does undermine her
credibility.” The Board did not point to any evidence that […] renders it reasonable to conclude that the delay in this case undermines
the Applicant’s credibility. This aspect of the Board’s decision was unreasonable. […] However, I do not consider that this is
determinative in light of the Board’s determination that [she] also failed to establish the objective component of her fear. […] The
Board’s decision is certainly not a model of clarity. […] First, the Board noted that despite the threats received by the Applicant, her
mother waited until the end of the school year before sending her to Canada and during that time, Mr. Ross did not attempt to carry
out his threats. It also noted that the events occurred eight years ago. The Board then indicated that when asked why Mr. Ross wanted
to kill her, given that she had denied to the police that he had sexually abused her, [she] stated that he was afraid that she would end up
talking. The Board then indicated that when asked if she thought she was still at risk, given that she had left eight years ago, the
Applicant answered that she did. The Board did not share the Applicant’s view […]: However, according to the claimant’s
testimony, in 2001, despite the fact that her mother had reported Mr. Ross for having raped her, no charge was laid against him,
which indicates police ineffectiveness in this area. When asked to explain why, in light of the foregoing, Mr. Ross would fear being
reported, since the police did not do anything, she answered that she did not know. […] In Sanchez v. M.C.I., 2007 FCA 99, the
Federal Court of Appeal emphasized the prospective aspect of the risk in the application of subsection 97(1) […]. [D]espite the
sympathy that I have for the Applicant, this application for judicial review cannot succeed. […][Application dismissed]
COUNSEL: CLAUDETTE MENGHILE MONTREAL
NOTICES
The next Lexbase Sending is: MARCH 2011 E-MAIL ADDRESS: Lexbase@canimmigrate.com

2011 Global Immigration Targets

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2011 Global Immigration Targets

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LEXBASE

The International Information Network for Canadian Immigration Practitioners

LEXBASE SENDING 2011 - FEBRUARY

IMMIGRATION POLICY AND OPERATIONS

(1) LEXBASE GLOBAL ANALYSIS OF 2011 “CIC TARGETS”

(2) LEXBASE REGIONAL ANALYSIS OF 2011 “CIC TARGETS”

(ii) The Asia/Pacific Region - 2011 Targets

(iii) The European Region - 2011 Targets

(iv) The Americas - 2011 Targets

LEXBASE CHARTS: The 2011 Targets

THE 231,225 to 71,225 to 69,915 to 5,940 to 6,060 to 16,800 to

2. Canadian Embassy Reports

Positive seldecs % of total Negative seldecs % of total

3. Ontario requests formal information sharing with Immigration Canada

4. Foreign diplomats are eligible as ‘skilled workers’

5. How to process foreign diplomats

8. Variation in the ‘reception rule’

9. Facilitators - first into CAIPS gets the payment

10. Questions/guidelines - what constitutes ‘management’?

10. DNA… what does it say?

DNA STATISTICS BY REFERRING COUNTRY, 2009

Cases Number of Individuals Number of tests Number of Exclusions Exclusion rate

11. Illegal Immigration – The overview

Low participation rates in regularization programs

Results: - Varying degree of success

Position of government since 2006

IMMIGRATION JURISPRUDENCE (during previous 30 days) FEDERAL COURT

Medical inadmissibility-Parents-granting of humanitarian and compassionate relief is discretionary

PRRA-adequate state protection in St. Vincent-domestic violence

Costs-“Things only began to happen when she retained Mr. Boulakia”

III. REFUGEE ISSUES

Bias issue and Roma cases

Bias issue and Roma cases

Albanian blood feud-State protection against vendetta

Albanian blood feuds-failure to properly consider corroborating evidence

Long delay in claiming-failed to establish the objective component of her fear

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