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Case Comments: Summarization of some recent court rulings

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Visa officer must advise of specific concerns: In the recent case of Hussain v. Canada (Minister of Citizenship & Immigration), the applicant, a citizen of India, had applied for a Canadian permanent resident visa under the Skilled Worker category.

The applicant’s intended occupation in Canada was that of “Executive Secretary” and at his selection interview, the visa officer questioned the applicant as to his employment duties in order to determine whether they constituted the experience necessary to qualify as an “Executive Secretary” pursuant to the immigration regulations in force at the time of the application.

The visa officer refused the application on the grounds that the applicant did not have the experience required to qualify as an “Executive Secretary,” but rather only as a “Secretary.” The effect of this determination was that the applicant received a lesser number of “points” as a “Secretary,” thereby not attaining the minimum “points” required to succeed in his application.

The applicant appealed the decision of the visa officer and, at the trial, one obviously important issue was the difference between the occupations of “Executive Secretary” and “Secretary,” and under which occupation the previous employment experience of the applicant fell. Closely related to this issue was the question as to whether the visa officer had provided the applicant with a “fair” opportunity to convince the visa officer that his work experience did, in fact, qualify him as an “Executive Secretary.”

In ruling in favour of the applicant, the judge held that the visa officer had misapplied the work experience criteria required to qualify as an “Executive Secretary.” More significantly, however, the judge also ruled that the visa officer did not communicate to the applicant her concerns that the applicant’s experience would only qualify him as a “Secretary”, as opposed to an “Executive Secretary.” The judge held that by not affording the applicant a reasonable opportunity to clarify and expand on the nature of his duties, the visa officer had failed to satisfy the duty of procedural fairness owed to the applicant.

Furthermore, the judge ruled that the visa officer could not claim to have satisfied this duty of fairness by simply asking the applicant, at the end of the interview, whether the applicant had “anything else to add.” The applicant must be advised of the specific concerns of the visa officer, otherwise the applicant will not have a reasonable opportunity to disabuse the visa officer of these concerns.

Given that the determination as to whether the applicant qualified as a “Secretary” or “Executive Secretary” was very fact-specific, the visa officer clearly owed the applicant a reasonable opportunity to present a factual account of the applicant’s experience. Had the visa officer expressed her specific concerns, the applicant could have at least had a reasonable opportunity to convince the visa officer otherwise.

Determining Residence for Citizenship Purposes: In the recent case of Ni Chih Wei v. Canada (Minister of Citizenship & Immigration), the appellant and his family landed in Quebec in August 1993, where the family has been living ever since. The appellant’s wife and children subsequently became Canadian citizens, but because of the appellant’s overseas business obligations, Canadian citizenship was denied him.

The appellant appealed this denial, arguing that his import-export business required him to travel abroad – mainly to Taiwan. Although the appellant was required to spend the majority of his time outside of Canada, the court nonetheless held that he should be granted Canadian citizenship.

In coming to its decision, the Court reaffirmed the well-established principle that residency in Canada for the purposes of citizenship does not imply full-time physical presence. Furthermore, the place of residence is not where a person works but rather where he or she returns to after work. In this case, the appellant had clearly and definitively established a home in Canada, constantly returning there after his trips abroad, with the transparent intention of maintaining permanent roots in Canada.

The Court held that the most eloquent of the indicia of residency is the permanent establishment of a person and his family in Canada. Such a person should not be deprived of citizenship merely because he is obliged to earn his livelihood and that of his family by doing business overseas.