DISCLAIMER:
The following has been prepared by Colin R. Singer, Attorney At Law, for the intended reference by interested individuals and is not intended to create an attorney-client communication. This writing may be reproduced for the personal non commercial use of interested individuals on the express or implied condition that the contents herein are neither edited, modified nor altered in whole or in part, directly or indirectly without the express written consent of the author herein.
(Canadian Immigration and Employment Law)

Since June 2002, when Canada’s immigration laws were amended to provide refused applicants for permanent residence with a right of appeal to the Federal Court of Appeal, with permission (known as “Leave”), the number of immigration related appeal cases before the Federal Court has been drastically reduced. In immigration matters, leave applications to the Federal Court are hard to obtain. Previously, this right of appeal did not require permission and consequently, refused immigration applicants had an easier access to a process of review of unfavourable decisions for permanent residence.

Canada’s immigration authorities lobbied hard to implement this barrier to appeal and now we can understand the practical effects of this current requirement. Visa officers, who are over burdened with growing case loads, routinely deny applicants the opportunity to address “concerns” with their applications. The applicant is presumed to know the law.

Recently, Canada immigration lawyer Colin R. Singer successfully sued the Minister of Citizenship and Immigration on behalf of a refused applicant for permanent residence. In the Federal Court decision of Shaker v. Minister of Citizenship and Immigration, IMM-3927-05, rendered on February 10, 2006, the court ruled that the visa officer breached a duty of procedural fairness when she did not clarify the ambiguity caused by the officer’s request to produce undertakings some of which the applicant had already produced. The Court also ruled that the assessment of the applicant’s employment experience and language abilities were unreasonable in light of the evidence before her.

The applicant had submitted six manuscript pages demonstrating his proficiency in English as well as two letters of employment outlining his duties. The visa officer chose to ignore this evidence and allotted the applicant a score of zero for language and zero for experience.

The case hinged on a letter from the attorney requesting a clarification as to what remained outstanding. The officer simply ignored the request for clarification and refused the application based on the evidence before her.

“Under the new leave rules before the Federal Court, it is becoming increasingly difficult for the voice of an applicant to be heard, even when it is evident that mistakes are being made. Strong applications submitted by highly qualified individuals are being routinely refused due to elementary and obvious errors being committed by an officer or by overlooked submissions” explains Singer.

According to Singer, visa officers, who have growing case loads comprising of applications for permanent residence and temporary entry applications to Canada for work and study, no longer fear that their name will be highlighted by the judicial review process. ”In most instances, the test to gain access to the Federal Court is very high and even if an applicant suffered an injustice, there might not be a right of appeal under the current rules”, he warns.

“Now, more than ever, a properly constituted application, with effective representation from legal counsel, can make all the difference in preserving an applicants’ future rights”, says Singer. ”The paper trail set by a trained attorney plays an important role in the ultimate success of an application to Canada under the current rules and thankfully, in this particular case, it was the deciding factor to set the decision aside”, he explains.

Applicants seeking entry to Canada should take careful note of this decision which can be found on the Federal Court web site as well as in the attached documentation: Shaker v. Minister of Citizenship and Immigration, 2006 FC 185.