Folks making use of to go to, examine, or work in Canada have to point out that they intend to be bona fide non permanent residents that can depart the nation as soon as their visa / examine allow / work allow has expired. That is pursuant to s. 179(b) of Canada’s Immigration and Refugee Safety Laws, which states that:
179. An officer shall concern a short lived resident visa to a international nationwide if, following an examination, it’s established that the international nationwide
(b) will depart Canada by the top of the interval licensed for his or her keep underneath Division 2;
The next are examples of how IRPR s. 179 could also be utilized to particular person functions. They’re situations that IRCC offers visa officers for the needs of coaching.
As famous within the above coaching supplies, in figuring out whether or not an applicant has met the s. 179 requirement, a visa officer should contemplate quite a few components, together with monetary and private ties to the applicant’s nation of origin, previous immigration makes an attempt, overstaying in different international locations, and any prison previous. Certainly, anybody who has ever seen a short lived resident visa refusal might be aware of the next “check-list.”
CASE LAW
Your Historical past of Compliance
Whereas a historical past of non-compliance with immigration regulation is clearly a unfavourable issue, an officer’s lack of consideration of a postive journey historical past can render a choice unreasonable. In Singh v Canada (Citizenship and Immigration), 2017 FC 894, Chief Justice Paul Crampton famous in obiter that an applicant’s historical past of compliance with one other immigration system was opposite to an officer’s discovering that the applicant wouldn’t depart Canada on the finish of the licensed keep. He wrote:
Furthermore, to find that Mr. Singh was unlikely to return to India on the finish of his two 12 months keep in Canada, the officer failed to contemplate the importance of the truth that there was nothing to counsel that he had ever didn’t adjust to Singapore’s immigration legal guidelines, since he moved to that nation in 2009 (Momi, above, at paras 20 and 25). I don’t imply to counsel {that a} failure to contemplate this issue alone ought to present grounds for locating a choice to be unreasonable. Nevertheless, on the actual information of this case, this omission was one other shortcoming which, taken along with others, collectively, rendered the Determination unreasonable.
In Singh v. Canada (Citizenship and Immigration), 2020 FC 840, Madam Justice McVeigh famous that:
The Applicant labored for six years in Singapore earlier than accepting a suggestion to work in Vancouver. Nothing on the report means that he didn’t adjust to Singapore’s immigration legal guidelines. Whereas the officer’s failure to contemplate this issue isn’t alone enough to warrant a discovering that the choice is unreasonable, it helps the above conclusion that the officer’s resolution was made with out enough regard to the proof.
Your Journey Historical past
The Federal Courtroom has constantly held that an applicant’s lack of journey historical past on a piece allow utility must be handled as a impartial issue by way of the applicant’s chance of returning to his or her nation of citizenship: Ekpenyong v Canada (Citizenship and Immigration), 2019 FC 1245 at para 31, citing Ogunfowora v Canada (Citizenship and Immigration), 2007 FC 471 at para 42; Huang v Canada (Citizenship and Immigration), 2009 FC 135 at para 13; Adom v Canada (Citizenship and Immigration), 2019 FC 26 at para 15. The Courtroom has discovered it to be an error for a visa officer to make use of an applicant’s lack of earlier journey historical past as a unfavourable consider figuring out whether or not the applicant is not going to depart Canada after her employment: Ekpenyong at para 32.
Because the Federal Courtroom famous in Momi v. Canada, 2013 FC 162:
Whereas the applicant’s compliance with Australian immigration guidelines isn’t proof straight associated to the matter of complying with intervals of authorization in Canada, it does point out in my estimation that the applicant has revered immigration coverage prior to now, and there’s no additional proof on the contrary.
As properly, whereas earlier journey historical past could also be a great indicator as to the chance of compliance to immigration legal guidelines, an absence of journey is at greatest a impartial indicator, because the Federal Courtroom present in Momi v Canada (Minister of Citizenship & Immigration), 2013 FC 162. and as was affirmed in Adom v. Canada (Citizenship & Immigration), 2019 FC 26.
Household Ties
In Thavaratnam v. Canada (Citizenship and Immigration), 2022 FC 967, the Federal Courtroom said that merely itemizing the place relations dwell after which stating that household ties are weak with out additional explanatation is unreasonable.
The Officer concludes that the Applicant’s ties to his nation of residence seem weak. Nevertheless, he doesn’t deal with the proof that the Applicant’s spouse and employment are in Sri Lanka, and that his spouse owns property there. The Respondent notes that the Applicant additionally has ties to Canada by way of his dad and mom and sister’s household. It argues that the Officer was entitled to put extra weight on that proof. Nevertheless, I don’t contemplate {that a} conclusion that the ties to Sri Lanka are “weak” by itself is affordable within the face of this conflicting proof. Some additional clarification is required.
The Courtroom reached an analogous willpower in Zoie v. Canada (Citizenship and Immigration), 2022 FC 1297:
As nearly all of the principal Applicant’s relations (and people of his partner) nonetheless reside in Iran, it was unreasonable for the Officer to easily seek advice from household pull components from Canada as a unfavourable issue, with out demonstrating consideration of the complete context that features familial pull components from Iran: Azam v Canada (Citizenship and Immigration), 2020 FC 115 at paras 55-56. If the Officer was of the view that there was inadequate proof on the ties to Iran, this could have been talked about within the Officer’s causes.
As properly, counsel’s hypothesis of a believable clarification can not treatment the inadequacy of the explanations for resolution.
Size of Proposed Keep
From Momi v. Canada, 2013 FC 162:
having a “everlasting job” in Canada doesn’t permit for an inference that the applicant will break the regulation and stay on this nation previous the expiry of the work allow. There isn’t any proof on the report that the applicant would have ties in Canada such that he could be tempted to remain for that motive alone. We should always guard towards connecting non permanent residence and changing into a everlasting resident (part 22 of the Act).
Your Immigration Standing
From Momi v. Canada, 2013 FC 162:
The truth that the applicant seeks to acquire the suitable visa from Canada as a result of his immigration scenario in Australia will turn into precarious would for my part militate in favour of contemplating the applicant as regulation abiding. As this Courtroom has held prior to now, earlier immigration encounters are good indicators of an applicant’s chance of future compliance (see Calaunan v Canada (Minister of Citizenship and Immigration), 2011 FC 1494 at para 28 and Murai v Canada (Minister of Citizenship and Immigration), 2006 FC 186).
I discover it obscure how the truth that the applicant seems to have stayed in Australia since 2009 is enough to conclude that if he had been awarded a short lived work allow, he wouldn’t return to India at its expiration. At greatest, not wishing to return to India following a stint in Australia by looking for to acquire a short lived work visa in Canada must be thought-about as impartial as as to if or not the applicant “will depart Canada by the top of the interval licensed for his or her keep
I’m struck by the next passage taken from the choice of Justice Mainville, then of this Courtroom, inGu v Canada (Minister of Citizenship and Immigration), 2010 FC 522:
[21] Second, the opposite reality which the officer attracts upon to conclude that the applicant is not going to depart Canada on the finish of the examine interval is her continued presence in Canada since March 2002 with both work or examine permits. That is unreasonable. A international nationwide who has remained in Canada underneath validly issued work or examine permits shouldn’t be penalized for having adopted the immigration laws of this nation. The straightforward reality the applicant has legally remained in Canada can not fairly assist a conclusion that she would select to go “underground” or attempt to keep in Canada with out authorization as soon as her examine allow expires.
Equally, in Singh v. Canada (Citizenship and Immigration), 2023 FC 1754, Justice Gleeson dominated that it’s unreasonable for a visa officer to refuse somebody on the idea that “based mostly on the applicant’s immigraiton standing outdoors their nation of nationality or ordinary residence, I’m not glad that they are going to depart Canada on the finish of their keep as a short lived resident.”
Your Household Ties in Canada and in Your Nation of Residence
A number of Federal Courtroom of Canada choices are skeptical of the notion that somebody having household ties in Canada is ncessarily a unfavourable issue. In Tharsini v. Canada, 2012 FC 1518 the Federal Courtroom said:
The officer concluded the applicant had solely weak household ties to Sri Lanka. As there isn’t a elaboration on this discovering, one can solely assume the officer concluded the ties are weak resulting from solely a single member of the family being in that nation. Nevertheless, to guage household ties solely based mostly on the amount of relations is to disregard the related issue of the power of the child-parent bond (see Guo v Canada (Minister of Citizenship and Immigration), 2001 FCT 1353 at paragraph 15, [2001] FCJ No 1851). The officer could have had authentic causes for doubting the power of that bond on this case. The report is silent, making it very tough for this Courtroom to see this discovering as cheap.
Whereas the household tie was just one a part of the proof thought-about by the officer on the difficulty of intention to depart Canada, it clearly was central to that willpower and I can not discern how the officer would have determined absent that discovering.
See additionally Shakeri v. Canada (Citizenship and Immigration).
As properly, from Raymundo v. Canada (Citizenship and Immigration):
The second concern considerations the Officer’s failure to contemplate the Applicant’s household ties within the Philippines in reaching the Determination. That is notably egregious because the Officer claimed to be unhappy that the Applicant demonstrated robust socio-economic ties to that nation whereas there was proof on file that the Applicant’s spouse and younger baby would stay within the Philippines in the course of the Applicant’s research in Canada. In failing to have interaction with these information in any means, notably in failing to evaluate whether or not the Applicant would return to his spouse and son within the Philippines, the Officer ignored some essential information in making his resolution.
The same resolution was reached in Rodriguez Martinez v. Canada (Citizenship and Immigration), the place Justice McHaffie dominated:
Within the current case, the one side of the officer’s notes related to their conclusion that the Candidates’ lack “robust socio financial ties” with Cuba was the notice “household life financial savings of 3k, household earnings of 300$ month-to-month.” This notice incorporates no evaluation of those components or why they assist a conclusion that the Candidates wouldn’t depart Canada: Patel at paras 21–22; Asong Alem v Canada (Citizenship and Immigration), 2010 FC 148 at paras 14–15. Because the Respondent suggests, one would possibly perceive the notice to specific a priority concerning the household’s wealth, and thus their financial incentive to return to Cuba, though it will take a beneficiant studying and a good diploma of inference to take action. Regardless, even with a beneficiant studying, the officer’s causes don’t analyze, contemplate or seek advice from materials proof concerning the Candidates’ financial ties to Cuba (notably the truth that all three personal actual property there), or any proof concerning their social ties (notably shut relations, together with those that draw on their assist). The proof concerning their ties to and institution in Cuba are supportive, although not determinative, of a discovering that the household would return to Cuba to renew their life there following their go to to Canada.
In Bteich v. Canada (Citizenship and Immigration), 2019 FC 1230, Justice Shore said:
On this case at hand, the Applicant has robust ties in Canada with well-established and legally established members of his household. This Courtroom agrees with the Applicant’s submissions as summarized under at paragraphs 12 to fifteen: the Officer mustn’t have drawn unfavourable inferences from the Applicant’s household ties in Canada. If something, the Officer ought to have thought-about the monetary assist the Applicant’s household offers as a optimistic issue. On the very least, the Officer ought to have justified his/her reasoning: it’s unreasonable to deduce that Applicant will stay within the nation illegally just because he has robust household ties in Canada.
Lastly, if somebody has lived in a rustic their complete life, it might be unreasonable for an officer to find out that their ties are weak. Because the Federal Courtroom famous in Jalili v. Canada (Citizenship and Immigration), 2018 FC 1267:
In my opinion, the Determination suffers from the difficulties addressed in that jurisprudence. The Determination turns considerably on the Officer’s conclusion that Ms. Jalili has weak monetary and private ties to Afghanistan. Nevertheless, in relation to her private ties, Ms. Jalili emphasizes that she has lived in Afghanistan all through her life and at the moment lives together with her two daughters and three grandchildren, for whom she has had duty as a caregiver for near a decade, these kids now being ages eight, six and two. Ms. Jalili’s function as her grandchildren’s caregiver is supported by the letter from her daughters submitted together with her TRV utility. In opposition to that backdrop, it’s obscure the idea for the Officer’s conclusion that Ms. Jalili has weak private ties to Afghanistan. This isn’t to say that the character of her ties to Afghanistan mandated any specific end in her TRV utility. Nevertheless, as they level to a conclusion opposite to that of the Officer, the absence within the Determination of any reference to, or evaluation of, the character of Ms. Jalili’s household relationships and caregiver function in Afghanistan helps the inference that these particulars had been ignored.
Your Present Employment Scenario
In Dhanoa v. Canada, for instance, the Federal Courtroom famous that:
The thought that [the applicant] would abandon his spouse and kids to be able to reap the benefits of higher socioeconomic alternatives right here is distasteful. It’s somewhat sanctimonious to counsel that our society is extra of a draw for him than India, the place he could be within the bosom of his household, just because he would have 30 items of silver in his pocket. As per Timothy 6:10 “for the love of cash is the foundation of all evil.”
In Cao v. Canada, affirmed in Singh v. Canada (Citizenship and Immigration), 2022 FC 1144, a 27-year previous citizen of the Folks’s Republic of China who was provided a job as a cook dinner at a Chinese language restaurant in Quebec. The visa officer refused his utility as he was not glad that the applicant was a real customer who would depart Canada upon the expiry of his work allow. The officer based mostly this resolution the applicant’s inadequate monetary ties to China, his modest wage, and restricted development alternatives in China. Justice Martineau discovered the Officer’s rejection on the idea of s. 179 of the IRPR to be fully unreasonable. He famous that the rejection of the work allow utility as a result of the applicant would earn more money in Canada than in China relied on the very issue which might induce somebody to come back right here quickly within the first place as the primary motive for protecting that particular person out.
Monetary Ties
In addressing monetary ties it is very important notice that if somebody in an utility is wealthier than the final inhabitants they need to not assume that officers will know this. Because the Federal Courtroom of Canada famous in Anand v. Canada (Citizenship and Immigration), 2019 FC 372, comparative proof have to be put in direction of an officer. As properly, as Madam Justice Go famous in Singh v. Canada (Citizenship and Immigration), 2022 FC 1486, it’s essential to be clear as to doable financial ties that can’t be assumed. In that case, Madam Justice Go decided that it was cheap for a visa officer to not know that somebody could be inheriting a household farm as a result of this was not clearly said within the utility.
Ample Funds
Candidates who’ve household companies and are counting on funds within the enterprise ought to clarify their possession stake and entry to funds within the enterprise. In Saif v. Canada (Citizenship and Immigration), 2021 FC 680, Justice Southcott said that an applicant having a joint checking account with a enterprise was inadequate proof of entry to funds, and that an officer was cheap in writing the next:
… Applicant is the vice-president of a household enterprise, Saif Eshaq Zai Ltd. Enterprise license submitted. Letter from president of the corporate signifies that applicant has shares within the firm nonetheless proportion of shares isn’t declared. Firm financial institution statements reviewed together with: Financial institution statements from Azizi financial institution with Afghan funds exhibiting quite a few money deposits in addition to deposits from unknown named people. Financial institution statements from Ghazanfar Financial institution with US funds exhibiting massive deposit of $200,000 US. Financial institution assertion from Ghazanfar Financial institution with Euro funds exhibiting “switch” or financial institution switch” with massive transactions of 100,000 Euro and 150,000 Euro. I acknowledge that there are firm funds nonetheless it’s unclear what funds, if any, can be found to the applicant for the aim of journey to Canada as proof of belongings submitted doesn’t clearly show applicant’s private belongings or funds resembling private financial institution statements, earnings earned, proportion of firm shares, private property and so on. …
In Steitie v. Canada (Citizenship and Immigration), 2024 FC 946, Justice Diner dominated that if neither the visa workplace directions nor IRCC Steerage on an LMIA exemption code require an applicant to supply proof of financial savings or belongings, then an officer who has considerations about an applicant’s monetary standing should make a transparent request for such paperwork.
In Kaleka v. Canada (Citizenship and Immigration), 2024 FC 1457, Justice Zinn dominated the place an applicant doesn’t present financial institution statements, and as a substitute only a financial institution assertion, procedural equity doesn’t require that the applicant be supplied with a possibility to supply statements. It’s because financial institution statements present a complete view of funds over time.
Restricted Employment Prospects
Because the Federal Courtroom famous in Ekpenyong v. Canada (Immigration, Refugees and Citizenship), 2019 FC 1245, it’s unreasonable to state that somebody has restricted employment prospects if they’re already employed with out offering extra data. As properly, stating somebody’s wage as a unfavourable with out offering a sign as as to if that wage is definitely low for the realm will likely be unreasonable. Lastly, though the prospect of higher job alternatives in Canada is an element to contemplate, the truth that somebody is coming from a rustic with a considerably decrease lifestyle than Canada mustn’t preclude them from acquiring a visa.
Addressing Newfoundland v. Nurses
The Supreme Courtroom of Canada resolution in Newfoundland Nurses has tremendously difficult issues. By eliminating the “adequacy of causes” check as a stand-alone floor for judicial assessment, the Supreme Courtroom of Canada has in impact signalled to Citizenship and Immigration Canada that it may well refuse choices based mostly on boilerplate, minimal causes, figuring out that reviewing judges should contemplate whether or not the choice was cheap based mostly on the report as a complete.
Justice Zinn has offered some steering in the way to method such circumstances in Agidi v. Canada, 2013 FC 691, the place he wrote:
The applicant within the written submissions argues that the officer breached the obligation of equity by failing to supply satisfactory causes for his resolution, and in addition that the choice is unreasonable. The respondent is fast to level out, appropriately, that “adequacy of causes” is now not a stand-alone floor of judicial assessment, in gentle of the Supreme Courtroom’s resolution inNewfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland and Labrador Nurses’ Union] at para 14. I agree; nonetheless, the choice rendered should nonetheless be cheap by way of “the existence of justification, transparency and intelligibility throughout the decision-making course of [and] whether or not the choice falls inside a spread of doable, acceptable outcomes that are defensible in respect of the information and regulation:” Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
…
Within the absence of any actual causes within the CTR as to why the officer reached his conclusion that the applicant had not glad him that the applicant wouldn’t depart Canada on the finish of her supposed three week keep, this resolution is unreasonable and have to be put aside. Though this Courtroom ought to first look to complement earlier than subverting the officer’s causes and will look to the report to take action (Newfoundland and Labrador Nurses’ Union, above, at para 12), a assessment of the report nearly solely reveals components – these canvassed instantly above – that strongly assist the other conclusion to that reached by the officer; particularly she has been invited by a Canadian pal to go to and vacation together with her for 3 weeks (and the pal offers an affidavit to the impact), and she or he leaves behind in Nigeria a job, a husband, two minor kids, and property. How on these information can it fairly be stated that she has failed to determine on the stability of possibilities that she’s going to depart Canada on the conclusion of her go to?
Together with Declarations
When submitting visa functions, it might be useful to incorporate a declaration from the applicant stating that he/she understands the character of non permanent entry, and that he/she is not going to overstay. Because the Federal Courtroom famous in Zhang v. Canada (Citizenship and Immigration), 2014 FC 499:
It’s obvious that the visa officer has additionally failed to contemplate some other causes raised by the applicant to assist her declare that she would return to the PRC. For instance, her examine plan states that her fiancé lives in China, he owns his personal enterprise there and he has bought an house in her identify. The applicant’s declaration explains that her fiancé isn’t concerned with residing overseas however that her examine “can also be one a part of the preparation for our future profession; subsequently I cannot keep in Canada for long run” (see para VI of the declaration, Applicant’s Document [AR] at 28). The declaration additionally states that the applicant plans to have a household in China and to deal with her dad and mom there and that she understands the repercussions of failing to depart Canada (at paras VII and IX, AR at 28-29). As said in Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 941 at para 13 [Cao], “[t]he resolution to submit the applicant’s declaration isn’t a banal gesture. The declaration is a transparent assertion that the applicant perceive the implications of overstaying his welcome in Canada, and for that reason, it is not going to occur.”
As properly, the truth that an announcement could also be self serving doesn’t imply that an officer can disregard it, as an applicant will essentially produce proof that’s useful to their case. . This has been affirmed in a number of circumstances, together with LOTM v Canada (Minister of Citizenship & Immigration), 2013 FC 957, at para.27-29, citing SMD v Canada (Minister of Citizenship & Immigration), 2010 FC 319, Ugalde v Canada (Minister of Public Security & Emergency Preparedness), 2011 FC 458, and Ahmed v Canada (Minister of Citizenship & Immigration), 2004 FC 226), and Singh v. Canada (Citizenship and Immigration), 2015 FC 1210.
Objective of Go to
In Agidi v Canada (Minister of Citizenship and Immigration, 2013 FC 691, the Federal Courtroom discovered {that a} (compelling) motive to go to Canada isn’t required to be able to concern a TRV.
In Guillermo v. Canada (Citizenship and Immigration), 2017 FC 61, the Federal Courtroom affirmed that visits to shut relations are a suitable objective of go to.
Scenario in Nation of Origin
The jurisprudence is combined concerning whether or not a visa officer can refuse an utility largely based mostly on the scenario in an individual’s nation of origin. In Demyati v. Canada (Citizenship and Immigration), Justice Roy said:
What seems to have been a very powerful issue within the refusal was the truth that the applicant is a Syrian nationwide who has been residing outdoors of Syria for many of his life. The choice-maker appears to have concluded that given the scenario in his nation of origin, he wouldn’t be inclined to return to his nation of nationality if his residence standing within the United Arab Emirates had been to vary. Given the report as it’s earlier than the Courtroom, this seems to be extra like a hunch based mostly on hypothesis than a justification supported by some proof. If that might represent some type of justification, this might lack transparency and intelligibility and not using a extra full articulation.
Youngsters Visiting Alone
Pursuant to the Federal Courtroom of Canada’s resolution in Sangchai v. Canada (Citizenship and Immigration), 2019 FC 376, visa officers should make sure that they don’t apply the identical requirements in assessing the assorted guidelines components when assessing customer visa functions for kids. For instance, it will be unreasonable for an officer to low cost the proof of college enrollment on the bottom that it could possibly be cancelled at any time as this could possibly be true of any applicant attending an academic establishment of their house nation.
The Test Containers
In Afuah v. Canada (Citizenship and Immigration), 2021 FC 596, Justice McHaffie famous that the letter obtained by a visa or allow applicant is the one foundation they’re given to clarify why they’ve been refused the flexibility to journey to Canada. Whereas efficiencies are gained in high-volume decision-making by way of type letters and check-boxes, this doesn’t imply that these letters and containers could be ignored because of this. They continue to be the explanations given for the choice, and if they don’t seem to be justified, clear, and intelligible, they don’t seem to be cheap.
Non-Private Elements
Sadly, there could also be different components that aren’t related to the person who can influence whether or not a visa will likely be refused. As demonstrated within the picture under, a visa officer coaching information states that borderline circumstances from Liaoning, Guangdong, Hebei, Fujian, and Henan would possible be refused, just because the candidates are from areas of excessive danger. Whereas one hopes that this isn’t the case, it’s tough to fully discard coaching manuals which include directions like this.
The Objective of [the Applicant’s] go to to Canada is inconsistent with a short lived keep
It is a widespread line in customer visa refusals. In Naderiboroujeni v. Canada (Citizenship and Immigration), 2024 FC 684, Justice Manson dominated that with out additional clarification it’s unreasonable.
A Ultimate Observe
It is very important notice that even when some components of a choice are cheap if a number of components are unreaosnable then the choice as a complete could possibly be rendered unreasonable. Because the Federal Courtroom of Canada famous in Peiro v. Canada (Citizenship and Immigration), 2019 FC 1146:
Contemplating these three components, the Officer’s resolution seems unreasonable. Whereas the function of this Courtroom on judicial assessment is to not reweigh the proof, two of the three causes given by the Officer usually are not cheap, based mostly on the report.
The explanations don’t permit this Courtroom to know why the choice was made with respect to the Officer’s resolution referring to household ties or financial motives to stay in Canada. I can solely conclude that the Officer misconstrued the proof as a complete in assessing the Applicant’s utility.