Four Case Comments

Sharifi v. Canada (Citizenship and Immigration), 2013 FC 453

This was a FSWP case involving an officer who refused a marine engineer’s application because the officer did not think that the applicant had demonstrated that he performed the main duties of NOC 7132.  In overturning the decision, the Federal Court judge (who prior to becoming a judge was a marine lawyer) stated that the officer did not demonstrate the expertise required of a visa officer.

The following two paragraphs are the most interesting part of the decision:

Furthermore, decision-makers are entitled to deference because of their expertise. The visa officer should be taken to know the functions of a third engineer, even if they had not been spelled out.

Consequently, the visa officer is taken to know the Marine Personnel Regulations issued under the Canada Shipping Act, 2001. He would know that a fourth class engineer has at least six months of sea service as an engineer in charge of machinery on vessels that have a propulsive power of at least 500 kW, has attended various training courses and has successfully been examined with respect to applied mechanics, thermodynamics, electro technology, engineering knowledge of motor vessels and steamships and, once again, much, much more.

Perhaps the Federal Court of Appeal, and eventually the Supreme Court of Canada, will consider this case when they determine whether the standard of review for questions of law in immigration matters is reasonableness or correctness.

Zhou v. Canada (Citizenship and Immigration), 2013 FC 465

This case involved a wealthy Chinese individual whose application for a Temporary Resident Visa was refused.  While the Court was critical of much of the officer’s decision, it ultimately determined that it was reasonable for the officer to determine that the applicant’s documents were insufficient because they were not originals as required by the document checklist.  The Court found that this was not an issue of credibility requiring the officer to provide the applicant with an opportunity to respond to the officer’s concerns, but rather was one of simply failing to follow the checklist.

The message is clear. Follow the checklist.

Okomaniuk v. Canada (Citizenship and Immigration), 2013 FC 473

There are many interesting features of this case involving membership in a group which committed espionage, however, the broader points about what essentially amounted to the officer’s fettering of discretion to a Canada Border Services Agency, and procedural fairness involving providing an applicant with sufficient time to respond to a complex allegation will interest all practitioners.

 

Varga v. Canada (Citizenship and Immigration), 2013 FC 494

There isn’t much in terms of broad practice tips in this case involving the court overturning a refugee hearing where the Member asked incredibly inappropriate questions.  But it is an interesting read because of those questions, which included:

The Board member first questioned the applicant’s children in order to establish their identities.  To the applicant’s son, the Board member stated, “Okay, junior let’s see how well you do.”  Later, the Board member asked, “What’s your date of birth? I can’t tell you.  When’s your birthday?  It’s not so easy now. […] What’s your principal’s name?  I’m just egging you on to tell you it wasn’t very easy for your sister to sit there.  It’s not so funny now, is it?  I didn’t think so.”  Further, the Board member asked the boy, “How do you know she’s your mother? […] Are you sitting there naked? What are you wearing?”

..

The Board member questioned the applicant regarding whether she is Roma.  He stated, “I have people that come in here who are fair skin, blonde hair, blue eyes, and then they say they’re Tizigane (ph).  So, how do I know anymore? And, look at me, do I look like I’m Tizigane (ph)?”

The applicant stated that the difference was “the way we talk and there are a lot of…”  The Board member interrupted and again repeated, “I asked about me.  Why don’t I look Tizigane (ph)?  I have dark skin color.  I have dark hair.  I have brown eyes…”  The applicant attempted to explain, “I can see who is gypsy […] Based on the clothes they wear, the gestures…”  Again the Board member insisted, “Okay, I’m talking about me.  I’m not talking about anybody else.  I’m talking about me.  You can’t avoid the question.  You went down that road, so here I am. So, I’m waiting for an answer.  If you don’t want to give an answer, that’s fine.”  The applicant explained that a “gypsy” in Hungary could not be appointed to sit on a tribunal such as the Board, to which the Board member replied, “Okay. So, that’s called avoiding the question again.  Okay, so I take you don’t want to answer the question.  Is that right?”

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?”

Apparently this went on for three pages of the transcripts.


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