Four Case Comments

Hussain v. Canada (Citizenship and Immigration), 2013 FC 636

This was a FSWP case involving an officer who refused an applicant’s application because the officer determined that the applicant’s work experience was equivalent to “computer and information systems administrator” rather than “computer and information systems manager”.  In overturning the decision, the Court determined that the question is not which National Occupational Classification most resembles an applicant’s experience, but rather the applicant can demonstrate that he/she has one year of skilled work experience in a specific NOC.

The following three paragraphs are the relevant part of the decision:

With respect to its comments regarding the similarities between the Applicant’s experience and NOC 2281, the Respondent falls into the same trap as the Visa Officer – the question is not whether the Applicant’s duties bear more of a resemblance to another category than to the one sought, but whether the Applicant has satisfied the requirements of the category in question.

Although it is not for this Court to re-weigh the Visa Officer’s conclusions in this regard, the Applicant is correct to assert that the similarity with NOC 2281 is the sole explanation offered by the Visa Officer in support of his conclusion that the information submitted was insufficient to show that the Applicant satisfied the requirements of NOC 0213.

This Court is not an expert in the technological terms connected with the various NOC codes and cannot be required to assess the sufficiency of the Applicant’s application where the Visa Officer has provided no relevant comments or reasons in that regard.  The Applicant is correct in his assertion that the fact that duties may “bear more resemblance” to another category is irrelevant where an officer has failed to assess the relevance of the duties in relation to the particular category in question and has provided no analysis comparing the requirements of the two codes mentioned.

The Court also noted that while great deference is owed to visa officers, decisions still require justification, transparency and intelligibility so that courts can understand why the decision was made or to assess whether the conclusion is within the range of acceptable outcomes.

Ulybin v. Canada (Citizenship and Immigration), 2013 FC 629

This case involved a a determination of whether an equivalency analysis is reviewable on the standard of correctness or reasonableness.  The answer is reasonableness.  The nature of foreign law and the determination of the circumstances underlying the foreign conviction are questions of fact. Comparison of Canadian law to foreign law and the offence committed by an individual engages questions of mixed fact and law.  As well, it is possible that there may be more than one correct equivalent offence.  The Court noted:

How does the reasonableness standard apply to the analysis in issue? It is important that the Officer carrying out the equivalency analysis understand the elements of the comparable offence. A failure to address one of the elements would make the analysis unreasonable. However, the Officer’s application of the facts to the Criminal Code elements is a matter for which the Officer is owed deference by the Court. This exercise may lead to more than one reasonable outcome, particularly when taking into account the highly factual determination of equivalency.

Ndjizera v. Canada (Citizenship and Immigration), 2013 FC 601

This case extends the principle that it is unreasonable for Officers to distrust evidence simply because it comes from individuals connected to the applicants to refugee claims.

 

Begum v. Canada (Citizenship and Immigration), 2013 FC 550

This decision involved a stay of removal application in which the Court was clearly unimpressed with the position of the Canada Border Services Agency.  The decision is short, and worth a read in its entirety, but some of the key paragraphs are:

During the hearing before me, I said I was not particularly interested in the tripartite test for an interlocutory stay which is that there be a serious issue, irreparable harm if the stay were not granted and if the balance of convenience favoured the applicant. I was more interested in the administration of justice.

I wanted to know if the Enforcement Officer was aware of the court proceedings when he served the notice of removal. The record is silent. Did he assume there was no merit to the judicial review, notwithstanding Mr. Justice Manson has already decided there was a fairly arguable case? It is only in the notes to file, dated yesterday, that there is an acknowledgment that there are, in fact, ongoing court proceedings.

The applicants have been removal ready for almost nine years. Why incarcerate Ms. Begum for a year, and deprive her of her decent income as a teacher, and then decide to remove her and her son, a son who knows nothing of Bangladesh?After further questioning on this topic, the Board member said, “So just for fun would you be able to tell where I’m from?”  The applicant attempted to answer, and the Board member replied, “Not even close, so do you understand now?  If you can’t tell where I’m from, my background, how do I know yours?”

This motion deals with the administration of justice, and disrespect of this Court. It is not quite contempt, but not far off. The sub judice rule is almost on point. Not only were proceedings ongoing, but a hearing on the merits of the judicial review has taken place.

If the Canada Border Services Agency is interpreting section 48 of the Immigration and Refugee Protection Act which now requires removal “as soon as possible” rather than “as soon as practical”, so that the only way the removal can be stopped is by court order, then so be it! What happened to common sense?

Counsel for the Minister informed the Court that the applicants would be removed on the government’s dime. If they are, however, ultimately successful in their application for permanent residence from within Canada, notwithstanding that they would be outside Canada, the government is not undertaking to pay their way back, the same government which has prevented Ms. Begum from earning any money over the last year.

The Minister “graciously” conceded there was a serious issue, but argued that there was no irreparable harm and that the balance of convenience favoured him. I am not prepared to second guess Mr. Justice Manson, and whatever Madam Justice Strickland may decide. The irreparable harm is that the applicants would be removed from Canada without the wherewithal to return should they be ultimately successful. The balance of convenience favours them.

I wonder if we would see more decisions like this if judges were able to actually listen to some Canada Border Services Agency officers tell people “I have no discretion in whether to defer your removal.  My job is to say that you will be removed ASAP, and if you want to try and stay you’ll have to go to court.”


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