The Federal Court of Canada has recently released two rulings: Enright v. Canada (Minister of Citizenship and Immigration), 2011 FC 1258, dealing with the Immigration Appeal Division’s (IAD) approach to assessing the evidence of a sponsorship relationship in a family class application; and Ali v. Canada (Minister of Citizenship and Immigration), 2011 FC 1247, which deals with the principles to be followed by visa officers in assessing applications for permanent residence in the Federal Skilled Worker (FSW) class.
Enright v. Canada(Minister of Citizenship and Immigration)
In Enright, the Federal Court confirmed that, while the Immigration Appeal Division (IAD) is not bound by a specific test in determining the genuineness of the relationship between a sponsor and sponsoree in the family class, it cannot ignore relevant and important evidence provided by them or fail to explain why it is not acceptable. As put by the Court, citing an earlier decision: “[T]he more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact ‘without regard to the evidence.’”
In this case, the Court determined that the evidence ignored or misconstrued by the IAD was important since it was relevant to establishing the authenticity of the relationship between the sponsor and sponsoree. The Court accordingly held that the IAD’s decision was unreasonable and ordered the IAD to conduct a new hearing.
Ali v. Canada (Minister of Citizenship and Immigration)
In Ali, the Federal Court reaffirmed the following principles which apply in the context of an application for permanent residence in the FSW class:
- The assessment of an application in the FSW class is an exercise of discretion that should be given a high degree of deference by the Court.
- The duty of fairness in this context is low; however, FSW applicants do have the procedural right to be provided with proper information as to the criteria used and the documentation required to properly assess their applications.
- The onus is on the FSW applicant to file an application with all relevant supporting documentation and to provide sufficient credible evidence in support of the application. The applicant must put his or her “best case forward.”
- As a general rule, where a concern arises directly from the requirements of the legislation or regulations, visa officers are not under a duty to provide an opportunity for the applicant to address those concerns.
- Where the concern relates to the credibility, accuracy or genuineness of information submitted by the applicant in support of his/her application, or some other matter not arising directly from the requirements in the legislation or regulations, the officer has a duty to inform the applicant of the concern and provide him or her with an opportunity to address it.
- The visa officer’s duty in this regard will be fulfilled if he or she adopts an appropriate line of questioning or makes reasonable inquiries that give the applicant the opportunity to respond to the concerns.
In this case, the Court noted that the visa officer’s concerns about the applicant’s claimed education related to issues of credibility as well as the reliability of the documentation submitted. Accordingly, the Court held that the visa officer had a duty to inform the applicant of her concerns and provide him with an opportunity to address those concerns. On the facts of the case, the Court held that officer had fulfilled her duty in this regard.
For further information with respect to the Federal Court’s rulings in the above cases or on the requirements and process in applying for permanent residence as a FSW or family class member, please contact the immigration law specialists at Green and Spiegel LLP.