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Law Times • sepTember 15, 2014 Page 17 www.lawtimesnews.com had never worked there. Fair- ness letter was sent to foreign national indicating only that restaurant was contacted to verify his employment and it was reported that foreign na- tional had never worked there. Foreign national responded that he had been on leave for three months, staff had turned over in that time and letter was provided from individual con- firming foreign national had worked for him since 2003. Ap- plication for permanent resi- dence was rejected on ground foreign national was inadmissi- ble for misrepresentation under s. 40(1)(a) of Immigration and Refugee Protection Act (Can.), for having misrepresented his work experience. Foreign na- tional applied for judicial re- view. Application granted. For- eign national was not able to participate in meaningful way in decision-making process, nor did he have opportunity to respond to officer's concerns since he was kept in dark about information upon which offi- cer made her decision. Accord- ingly, there was breach of pro- cedural fairness and file should be sent back to different officer. Chawla v. Canada (Minister of Citizenship and Immigra- tion) (May. 7, 2014, F.C., Yves de Montigny J., File No. IMM- 1499-13) 240 A.C.W.S. (3d) 143. Officer's failure to disclose source of information did not prejudice applicants In 2007, citizen of Canada ap- plied to sponsor her father, her father's wife and their son as permanent residents. Sponsor's father was murdered in 2010, and his wife, who was foreign national citizen of China, took over application as principal applicant. Citizenship and Im- migration Canada (CIC) asked for and received Record of No Marriage Registration for son dated March 21, 2012 from Marriage Registration Office of Fujian Province. On March 1, 2012, CIC received e-mail mes- sage from woman who claimed that she and son were married on Jan. 10, 2011, and they had child born on July 30, 2011. Attached to e-mail were eight photos of what appeared to be wedding ceremony, also at- tached was notarized birth cer- tificate indicating son as child's father. Upon receipt of this information, CIC on March 7, 2012, sent procedural fairness letter to principal applicant informing her that informa- tion had been received which established that son was mar- ried, which fact had not been disclosed in application for permanent residence. Source of information was not disclosed to principal applicant. CIC found explanation in response to procedural fairness letter not credible and issued decision re- moving son from application on ground he was not "depen- dent" as defined in s. 2 of Immi- gration and Refugee Protection Regulations (Can.), as he was married or entered into com- mon law relationship since sub- mission of application for per- manent residence. CIC issued second decision denying appli- cation and finding that princi- pal applicant and her son were inadmissible to Canada for two years for misrepresenting son's marital status, under s. 40(1)(a) and (2)(a) of Immigration and Refugee Protection Act (Can.). Principal applicant applied for judicial review, contending that CIC erred by not setting out what extrinsic evidence it relied on in its procedural fairness let- ter and in its determination that son had been married. Applica- tion dismissed. Neither e-mail nor its attachments constituted extrinsic evidence. Although applicants were not provided with e-mail from informant or attachments, they nonethe- less, had full opportunity to address and explain content of that document and its at- tachments. Officer's failure to disclose source of information or evidence provided did not prejudice applicants. Officer's decision that son was married to informant was reasonable based on evidence. Feng v. Canada (Minister of Citizenship and Immigration) (Apr. 30, 2014, F.C., Russel W. Zinn J., File No. IMM-1280-13, IMM-1281-13) 240 A.C.W.S. (3d) 145. REFUGEE STATUS This was valid exercise of discre- tion to reconsider and not attempt to justify poorly crafted decision Refugee claimant was citizen of Colombia who filed Pre- Removal Risk Assessment (PRRA) on Jan. 30, 2013. On Feb.14, 2013, counsel forwarded claimant's substantive PRRA submissions and affidavit from claimant. Counsel's letter in- dicated another affidavit and copies of supporting docu- ments would follow via courier and requested that decision be deferred until additional docu- ments were received. On Feb. 20, 2013, counsel sent prom- ised documents by courier and delivery was effected next day. Included in that package were translated death certificates for four deceased members of claimant's family, number of country condition reports de- tailing current FARC risk in Colombia and affidavit from claimant's brother recounting family history in Colombia. Officer's initial decision reject- ing claimant's PRRA applica- tion was rendered on Feb. 20, 2013, and was served on claim- ant on Feb. 22. On Feb. 27, 2013, claimant filed application for judicial review from that deci- sion along with motion for a stay of removal. Officer had been unaware of a February 20 document package until Feb. 27, 2013, and it was at that point that she rendered her supple- mental reasons. On Feb. 28, 2013, counsel for Minister sent to claimant's counsel affidavit from officer that included sup- plemental set of reasons deal- ing with a February 20 docu- ment package in which officer discounted probative value of family death certificates on ba- sis that deaths were not linked to FARC. Officer also consid- ered country condition reports, but concluded that her negative PRRA decision remained un- changed. Claimant applied for judicial review, contending that officer was functus officio af- ter serving her initial decision and that she effectively usurped jurisdiction of Federal Court when she rendered supplemen- tal reasons in face of claimant's application for judicial review. Application dismissed. Officer was not functus officio in these circumstances. Officer realized that her initial decision did not address all of submitted evi- dence. Officer considered new evidence and found that it was not persuasive. Officer's analy- sis of new evidence was reason- able. This was valid exercise of discretion to reconsider and not illegitimate attempt to jus- tify poorly crafted decision. Arango v. Canada (Minister of Citizenship and Immigration) (Apr. 17, 2014, F.C., R.L. Barnes J., File No. IMM-1546-13) 240 A.C.W.S. (3d) 147. SELECTION AND ADMISSION Central issue was whether care required was available to foreign national in Jamaica Foreign national, aged 60, was citizen of Jamaica who had spent much of his adult life in United States illegally. Foreign national had been deported back to Jamaica in 2004 after serving prison sentence. For- eign national came to Canada several months later on false passport. Foreign national was rendered quadriplegic in 2006, after being brutally beaten for being informant against drug traffickers. Removal order was issued after foreign national was found to be inadmissible to Canada due to criminal con- victions in United States. For- eign national unsuccessfully applied for exemption on hu- manitarian and compassion- ate grounds from requirement that applications for permanent residence be made from outside of Canada. Foreign national brought application for judicial review. Application granted; matter remitted for re-deter- mination. Standard of review was reasonableness in accor- dance with prior authorities, and decision was unreason- able. Central issue was whether care that foreign national re- quired was available to him in Jamaica. Immigration officer had not specifically mentioned strong evidence indicating people with quadriplegia in Jamaica largely had to rely on family members. Instead, im- migration officer relied on her own research without giving foreign national opportunity to respond. Even worse, im- migration officer failed to ap- preciate that her own research supported foreign national's position that his needs would not be met. This was not even- handed, reasonable assessment of hardship. Bailey v. Canada (Minister of Citizenship and Immigration) (Apr. 1, 2014, F.C., James Rus- sell J., File No. IMM-11411-12) 240 A.C.W.S. (3d) 157. Unclear whether alternative appli- cation was ever properly assessed Foreign national was citizen of Iran who had applied for permanent residence under Federal Skilled Worker pro- gram, claiming qualifying experience in two eligible oc- cupations: NOC 0711 - Con- struction Manager, and NOC 2151 - Architect. Throughout her undergraduate and Mas- ters' Degree studies (Novem- ber 2003 to June 2008) foreign national worked part-time and full-time in various jobs as ar- chitect. Upon graduation with her Masters' Degree, foreign national worked full-time from June 2008 to July 2009, which she claimed as work experience as Construction Manager. For- eign national received refusal letter which explained that she had not provided sufficient evi- dence of her work experience in listed occupation of NOC 2151 - Architect. Foreign na- tional sought clarification and contended that her applica- tion had been made primarily under NOC 0711 - Construc- tion Manager, although she had claimed prior experience as architect. Foreign national received response indicating that clerical error had resulted in her being sent incorrect re- fusal letter, however response confirmed that foreign nation- al's work experience as NOC 0711 - Construction Manager had also been reviewed and re- fused as insufficient. Amended refusal letter was sent. Foreign national applied for judicial review. Application granted. On at least two separate occa- sions, wrong NOC code was referenced in correspondence to foreign national. No expla- nation was ever provided for why NOC codes were confused or why visa officer considered that foreign national's duties were closer to those of architect. Record contained no affidavit from visa officer to clarify mat- ters. Decision was unintelligi- ble and lacked transparency. It was unclear whether alternative application under NOC 2151 - Architect was ever properly as- sessed. Khooee v. Canada (Minister of Citizenship and Immigration) (Mar. 24, 2014, F.C., Richard G. Mosley J., File No. IMM-2346- 12) 240 A.C.W.S. (3d) 160. Family chose not to tell authorities about foreign national's criminal charges Foreign national was citizen of India to whom visa was is- sued June 24 2010, valid until Dec. 31, 2010. Visas were also issued to foreign national's mother and father. Cover let- ter to foreign national's father indicated that any criminal charges against any of visa ap- plicants arising after date of visa application had to be dis- closed to Canadian immigra- tion authorities before family left for Canada and that if fam- ily member was unable to travel to Canada prior to expiration of visa, he or she would have to reapply for admission. On June 18, 2010, foreign national was arrested and detained on charges of kidnap and rape, was imprisoned for nine months and was ultimately acquit- ted of all of charges in March 2011. Foreign national's father never told Canadian immigra- tion authorities about charges that his son was facing. For- eign national's parents came to Canada on Dec. 26, 2010, and foreign national's visa expired on Dec. 30, 2010. After foreign national's acquittal formal re- quest was made for extension of visa, which was denied, then following judicial review, was remitted for re-determination by another officer. Officer in- terviewed foreign national and found him not credible and also found that parents knew of obligation to report son's arrest and chose not to do so. Officer concluded that parents had not met their onus of showing that there were compelling reasons that would justify exercise of her discretion to re-open son's visa application. Foreign na- tional applied for judicial re- view. Application dismissed. Although foreign national was in jail he was in regular con- tact with lawyer who could have contacted Canadian High Commission on his behalf and report criminal charges. Of- ficer's conclusion that family had consciously chosen not to tell Canadian immigration au- thorities about foreign nation- al's criminal charges until after parents were landed in Canada and foreign national's criminal trial had been concluded was one that was reasonably open to officer. Foreign national had no right to have term of his ex- pired permanent resident visa extended. Rather, onus was on foreign nationals to show that circumstances warranted exer- cise of visa officer's discretion. Foreign nationals failed to dis- charge that onus. Bajwa v. Canada (Minister of Citizenship and Immigration) (May. 9, 2014, F.C., Anne L. Mactavish J., File No. IMM- 1165-13) 240 A.C.W.S. (3d) 158. ONTARIO CIVIL DECISIONS Administrative Law BIAS Judge's comments indi- cated partiality to evidence given by police officers Applicant brought application for declaration that certain moneys that she had advanced CASELAW