RIMbits Revealed (June 2010)

Meurrens LawImmigration Trends

The following are some excerpts from the June 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The June 2010 RIMbits on admissibility consisted of six questions and answers.  I have reproduced two of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.

Appeals Allowed and Resumption of Examination

Q. Our FC1 case went to appeal at the IAD and was allowed. The decision states that the Panel is disgusted with the behaviour of the appellant and the applicant and that their behaviour cries out for further investigation, but it is not within the mandate of this panel to carry out such an exercise.

In light of this written comment in the decision, we would like to know if we can re examine and refuse the application as a marriage of convenience. We originally refused under A40(1)(a).

A. When the application for admission of a member of the family class is refused, the sponsor may appeal to the IAD on either legal or humanitarian grounds. Since the refusal may occur at several different stages, the allowance of the appeal results in resumption of the examination by the visa officer, not outright approval of the application. The important limitation is that the visa officer cannot reconsider matters upon which the board has decided. The difficulty in some instances, however, is figuring out exactly what the board decided. So, for example, in the case of King v. Canada (1996 115 FTR 306), the dispute was over whether or not a visa officer could refuse an applicant following a ruling that an initial refusal for medical reasons was procedurally flawed. The Court ruled that the only thing that was res judicata was the initial medical opinion. Thus, a second refusal by the visa officer for medical reasons was reasonably open to the visa officer, based upon the evidence. Recently, the Federal Court of Appeal ruled that a visa officer can refuse a case because of new evidence regardless of the basis for which the IAD ruled in favour of the applicant. In Shu Foo Au v. M.C.I. (A-229-01) 1 the Court of Appeal cautioned visa officers to ensure any subsequent refusal after a successful appeal to the IAD was based upon something significant and new; otherwise there would be no finality to decision making.

http: //reports. fja .gc.ca/enq/2002/2002fca8/2002fca8.html

Military Service and Definition of Dependency

Q. We received an IAD decision where the Member approach to the issue of obligatory military service, effectively suggesting that it is a matter of statutory interpretation to conclude that mandatory military service should be considered equivalent to full time studies for the purposes of the definition of dependent child (R2).Could you please advise if we should continue to follow this interpretation?

A. Under the old Immigration Act, where a person had interrupted a program of studies for an aggregate period not exceeding one year, that person was not considered to have failed to have continuously pursued a program of studies (subsection 2(7) of the Immigration Regulations, 1976). In Moghtader (2002 FCT 296), Justice Nadon held that the cause of the interruption was completely irrelevant; if there was an interruption of studies for more than a year, whatever the cause, then it was considered as a break in the continuity of the program of studies. Although R2(7) was not incorporated into IRPA, nothing indicates that the conclusion of Justice Nadon could not continue to apply under IRPA. Therefore, any interruptions (except for regular school breaks and minor leave of absence) should be considered as a break in continuity of a program of studies. Furthermore, with the introduction of IRPA, the age of dependency was raised to 22 in order to accommodate situations that create longer child dependency, including those where an applicant has been required to perform military duty. However, while conscription military service was contemplated as it relates to dependency up to the age of 22, no exception was created for it in the same way as was for an individual over 22 who is financially dependent on their parents and is engaged in study or is unable to be self-supportive due to a physical or mental condition (R2).