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4 Real Cases Where One Mistake Ruined a Canada Visa Application · Border Banter: An Immigration Podcast

• 0:00
  SPEAKER_00: Mr.
• 0:00
  SPEAKER_00: Vasiliv submitted a bank statement showing 4.6 million rubles.
• 0:05
  SPEAKER_00: Digital verification suggested that the actual balance of the count was 600,000.
• 0:10
  SPEAKER_01: If the outcome is negative, then they're barred from coming to Canada for five.
• 0:13
  SPEAKER_00: He claimed he feared persecution in Nigeria due to his sexual orientation.
• 0:18
  SPEAKER_00: Now ultimately the prowl was refused without holding an oral hearing.
• 0:21
  SPEAKER_01: As long as the officer has shown their work, then most of the time the courts don't intervene.
• 0:33
  SPEAKER_00: Federal court does not create immigration laws.
• 0:35
  SPEAKER_00: They interpret and apply the laws enacted by Parliament.
• 0:39
  SPEAKER_00: However, the decisions clarify how legislation should be understood and applied in certain circumstances, which can significantly influence immigration policies and decision making.
• 0:50
  SPEAKER_00: In this episode, we're walking through some recent Federal Court cases and talking through what happened, what led us there, and what were the outcomes.
• 0:59
  SPEAKER_00: We're going to be covering a Russian couple who applied for a TRV to see their son and were refused on potentially fraudulent bank statements, but they had no idea what the real issue at hand was.
• 1:08
  SPEAKER_00: A study permit application was refused due to an influx of money landing in the bank account.
• 1:13
  SPEAKER_00: A gay Nigerian man's application was refused without being given the opportunity to assess his credibility at an oral hearing.
• 1:21
  SPEAKER_00: And an Afghan refugee sponsorship application was refused because the submission guidelines were not followed.
• 1:27
  SPEAKER_00: I'm Sonia, and I'll be joined today by Emory.
• 1:29
  SPEAKER_00: And we're immigration lawists here at Green Us Spiegel, Canada's largest immigration law firm.
• 1:34
  SPEAKER_00: And this is Borderbanker.
• 1:36
  SPEAKER_00: Okay, so the first case we're going to talk about is Vasi Liv versus Canada Citizenship and Immigration 2026 FC716.
• 1:45
  SPEAKER_00: So this case is really about two Russian citizens that are applying for a TRV to come see their son here in Canada.
• 1:53
  SPEAKER_00: The IRCC officer found that they had concerns with a potentially altered bank statement, which resulted in a finding of misrepresentation under Section 40 sub 1A of ERPA.
• 2:06
  SPEAKER_00: Some of the key facts of this case are the husband and wife are citizens of Russia and they're applying for TRVs to visit their son in Canada.
• 2:15
  SPEAKER_00: And in that application, as proof of financial support, Mr.
• 2:19
  SPEAKER_00: Vasiliv submitted a bank statement showing approximately 4.6 million rubles.
• 2:26
  SPEAKER_00: IRCC investigated the document and concluded that it had been altered.
• 2:30
  SPEAKER_00: According to the officer, digital verification suggested that the actual balance of the account was approximately 600,000 rubles.
• 2:38
  SPEAKER_00: IRCC sent out a procedural fairness letter stating only that the bank statements had been determined to be fraudulent.
• 2:46
  SPEAKER_00: So in response, the applicant denied the falsifications, explained that repeated compression of the documents to meet the upload size requirement of IRCC may have affected the equality of the document, resubmitted the statement, provided a more recent statement of the same account, and provided additional financial support for the visit.
• 3:08
  SPEAKER_00: The officer remained unsatisfied and found that the applicant was inimiscible for misrepresentation under Section 40 sub 1A, and by virtue his false application was also refused.
• 3:21
  SPEAKER_00: So now the central issue or question in this case is did IRCC provide sufficient notice on the specific misrepresentation concerns so the applicant had a meaningful opportunity to respond?
• 3:35
  SPEAKER_00: So, Emery, talk to me about this case.
• 3:38
  SPEAKER_00: How did it end up?
• 3:39
  SPEAKER_00: What happened?
• 3:41
  SPEAKER_01: The gist of the case is whether or not an officer providing a gist of the concerns to the applicant is enough notice for them to meaningfully participate in the process.
• 4:02
  SPEAKER_01: So that's something that we call procedural fairness, where if an IRCC officer has concerns over someone's admissibility or credibility, and in this case it's both, because they're saying that they have submitted fraudulent evidence that led to a misrepresentation finding, which carries a ban of five years from Canada.
• 4:32
  SPEAKER_01: So in situations like that, officers are required to put the applicant on notice and give them sufficient detail to meaningfully participate in the process.
• 4:47
  SPEAKER_01: So explain themselves, um, tell their side of the story, and um generally make submissions on why they should not be found inadmissible.
• 4:59
  SPEAKER_01: There's kind of two lines of case law on that issue.
• 5:05
  SPEAKER_01: Um there's one uh group of case law that says as long as the applicant understands the quote unquote gist of the concern, um then that's enough notice uh for the sake of procedural fairness.
• 5:25
  SPEAKER_01: There's another um line of jurisprudence that says the decision maker, the officer, needs to give sufficient detail about what those concerns are so that the applicant can address those directly.
• 5:46
  SPEAKER_01: Um this decision um adds to that second line of jurisprudence.
• 5:54
  SPEAKER_01: So the procedural fairness that was provided to the applicants here just said we have a bank statement from you that is fraudulent.
• 6:02
  SPEAKER_01: That's it.
• 6:03
  SPEAKER_01: There's no explanation of how they came to that conclusion, what's fraudulent about it, what evidence did they rely upon, and so forth.
• 6:12
  SPEAKER_01: So all the applicant had to go on was I may have submitted something that is fraudulent.
• 6:19
  SPEAKER_01: And the court said, that's not enough, that's not enough detail.
• 6:24
  SPEAKER_01: The applicant does not understand what the concern is.
• 6:28
  SPEAKER_01: Um, and even though uh you know the the gist is that there's a concern over the uh potentially fraudulent document, um there there isn't enough detail for the applicant to meaningfully um engage with the concern.
• 6:46
  SPEAKER_01: How much detail is enough detail is a question of fact and circumstance.
• 6:54
  SPEAKER_01: Um, so that will change uh depending on what the concern is, what the person is applying for.
• 7:01
  SPEAKER_01: Um but in general, in the context of the misrepresentation investigation, um the threshold is fairly high in terms of uh how much detail an officer should provide, because it ultimately affects the person's admissibility to Canada, um, which is which is a big deal.
• 7:24
  SPEAKER_01: And again, in the case, in case of misrepresentation uh investigations, if the outcome is negative from a perspective of the applicant, then they're barred from coming to Canada for five years.
• 7:34
  SPEAKER_01: So it's a big deal.
• 7:35
  SPEAKER_00: And that's a really serious consequence, right?
• 7:37
  SPEAKER_00: And like in a case like this, like you know, the applicant has no idea what they're going in as.
• 7:43
  SPEAKER_00: He takes a position that, you know, it could have been, it seems maybe it's altered because I did a compression, right?
• 7:50
  SPEAKER_00: And the whole problem was the amount of money in the bank account.
• 7:53
  SPEAKER_00: So the opportunity wasn't given to address that, which ends up being a very serious issue.
• 7:58
  SPEAKER_01: Yeah, the applicant uh had to go in blind here, um, and uh to you know guess at what could have been the issue.
• 8:13
  SPEAKER_01: And um, and yeah, that that's kind of at the heart of procedural fairness.
• 8:18
  SPEAKER_00: Um we see it all the time, right?
• 8:20
  SPEAKER_00: We see these letters come in all the time.
• 8:22
  SPEAKER_00: And we as represent, even if it's a case that we did, we're like, I have no idea what they're going in at, right?
• 8:27
  SPEAKER_00: And you do have the option to say, hey, can you provide more you know context?
• 8:32
  SPEAKER_00: You know, we're we're responding to your letter as best as we can, but please provide more context so we can actually address this in a fulsome manner.
• 8:41
  SPEAKER_01: Yeah, from a practitioner's perspective, I think it's very important to when we're responding to the procedural fairness letters, um, to engage with the issue of whether or not there is sufficient procedural fairness.
• 8:57
  SPEAKER_01: And if there's um and if the procedural fairness letter is lacking, um then to raise that as part of the response.
• 9:10
  SPEAKER_01: And you know, in in industry terms, we call that JR proofing, um, which is to say uh you present the strong enough response um with all the legal arguments and evidence in it, um, so that if you have to challenge the decision at uh the federal court, um, then you have a good evidentiary basis to do that.
• 9:32
  SPEAKER_00: And that's a very good point to make.
• 9:33
  SPEAKER_00: Like, you know, when you're going to federal court, it's not a denobile hearing.
• 9:36
  SPEAKER_00: You don't get to introduce new evidence, right?
• 9:38
  SPEAKER_00: That, oh, now I know what they're really looking at.
• 9:40
  SPEAKER_00: So when I'm going to federal court, I'll put in the you know missing pieces.
• 9:43
  SPEAKER_00: You can't do that.
• 9:44
  SPEAKER_00: It is based on what's already there, right?
• 9:47
  SPEAKER_00: So it changes, it's not like going to a tribunal and saying, hey, this is a de novo hearing.
• 9:51
  SPEAKER_00: Now I can enter in evidence.
• 9:52
  SPEAKER_00: Now I know where everybody's thinking, where every everything lies.
• 9:56
  SPEAKER_00: So ultimately, at the end of the day, judicial review is granted in this situation.
• 10:00
  SPEAKER_00: And what we've said before, and is very important to always remember just because you're winning at federal court doesn't mean that you decision is positive now.
• 10:09
  SPEAKER_00: It's a the refusal is set aside and the matters return to be redetermined by a different officer.
• 10:16
  SPEAKER_01: Yeah, I mean, that maybe one point is yeah.
• 10:20
  SPEAKER_01: So the generally 99% of the time the outcome of a judicial review uh win means it gets sent back to uh the decision maker to be reopened and redetermined, which means it's open to the administrative tribunal to reviews it again.
• 10:40
  SPEAKER_00: Okay, so the next case I want to talk about is Azadi versus Canada Citizenship and Immigration 2026 FC 760.
• 10:47
  SPEAKER_00: So basically, in this case, the applicant is a citizen of Iran, applied for a study permit to complete grade 12 here in Canada at a private Ontario high school that he had already been attending for grade 11 and 10, but remotely from abroad.
• 11:02
  SPEAKER_00: The visa officer refused the application, finding that the applicant had not satisfied the officer that he would leave Canada at the end of his authorized stay.
• 11:10
  SPEAKER_00: The applicant seeked judicial review, arguing that the decision was unreasonable.
• 11:15
  SPEAKER_00: So some of the key facts to take away from this case is one, the applicant had been studying for the same Ontario high school remotely for grade 10 and 11.
• 11:24
  SPEAKER_00: He applied for a study permit to be admitted for grade 12 in Canada.
• 11:29
  SPEAKER_00: In support of the application, he stated that studying in Canada would help him develop personal and professional skills and improve future opportunities in Iran.
• 11:37
  SPEAKER_00: The visa officer was not persuaded that attending school in Canada was necessary or reasonable, particularly since the applicant had already been attending the same school virtually.
• 11:47
  SPEAKER_00: The officer also was concerned about the applicant's financial situation.
• 11:51
  SPEAKER_00: Although the applicant's mother had provided a bank statement that was showing approximately$85,000 Canadian in available funds, a lot of these funds, or a significant portion of these funds, had been deposited shortly after IRCC had asked for proof of finances.
• 12:07
  SPEAKER_00: The applicant did try to explain the transferred funds and had said they had previously moved a short-term investment that was later canceled.
• 12:16
  SPEAKER_00: So here, the center question before the court was was the visa officer's decision to refuse the study permit unreasonable?
• 12:25
  SPEAKER_00: And going into more Pacifics, there's two questions.
• 12:29
  SPEAKER_00: Was it reasonable for the officer to conclude that the applicant's purpose of studying in Canada was not justified or sufficiently justified?
• 12:38
  SPEAKER_00: And was it reasonable for the officer to conclude that the applicant had not adequately demonstrated the financial capacity to support a year of studies in Canada?
• 12:48
  SPEAKER_01: So I like this case because um even though it was dismissed, um it's a good overview of what temporary residence is in Canada, um, and what officers are looking for when they um process these temporary residence applications.
• 13:14
  SPEAKER_01: So by temporary residence, we mean visitor visas, study permits, work permits.
• 13:19
  SPEAKER_01: Um, so some of those uh the issues are they kind of get to the heart of um what a temporary residence application is.
• 13:32
  SPEAKER_01: In general, what officers want to see is why do you need to be here physically?
• 13:40
  SPEAKER_01: And can you support yourself?
• 13:45
  SPEAKER_01: And will you leave at the end of your stay?
• 13:48
  SPEAKER_01: Um and the why do you have to be here physically piece of it um has been coming up more and more in recent years.
• 14:02
  SPEAKER_01: Um pretty much since the pandemic, when a lot of things can be done remotely now.
• 14:10
  SPEAKER_01: Um one of the main issues with this case was the fact that the student who was a child who was going to high school, um had completed grades 10 and 11 remotely from their home country.
• 14:27
  SPEAKER_01: And so they wanted to come to Canada to complete grade 12.
• 14:32
  SPEAKER_01: Um and the court agreed with the visa officer there when they said, well, if you could complete grade 10 and 11 uh remotely from overseas, why not do grade 12 remotely too?
• 14:49
  SPEAKER_01: And why do you have to be here for that?
• 14:52
  SPEAKER_01: Um, so the court said that that was uh a reasonable uh finding, and it's a good reminder for us as well.
• 15:03
  SPEAKER_01: Whenever we're helping someone apply for it, can be a study permit, it can be a work permit, visitor visa.
• 15:09
  SPEAKER_01: Why do you need to physically be here?
• 15:12
  SPEAKER_01: Um, especially if you can do everything that you want to do remotely.
• 15:17
  SPEAKER_01: Um and the other good reminder is they may the student applicant, they may were very well have had a good reason to come to Canada to finish grade 12.
• 15:34
  SPEAKER_01: Um, but that needs to be before the officer.
• 15:38
  SPEAKER_01: Um, so the officer is only working with what's submitted in the application.
• 15:46
  SPEAKER_01: Um and they don't need to go come back to you and ask.
• 15:50
  SPEAKER_00: I think that's a good point to bring up, though.
• 15:52
  SPEAKER_00: Like, you know, in the previous case, we spoke about there's a procedural fairness letter.
• 15:57
  SPEAKER_00: They came and asked.
• 16:00
  SPEAKER_01: So generally, on issues um that relate to the person's eligibility for what they're applying for, um, the responsibility is on the applicant to submit a complete application um that covers all the possible questions that you might get on the eligibility um piece of it.
• 16:22
  SPEAKER_01: Um and the dominant case law is if it's a question about eligibility, then the applicant should know already what's being expected because it's in the legislation, it's in it's on the website, um, it's on the application forums, the document checklist, whatever.
• 16:43
  SPEAKER_01: Um, so they know what the requirement is, and it's on them to be able to meet that requirement.
• 16:50
  SPEAKER_01: Officers sometimes they're nice, they come back to you and ask, um, hey, can you submit uh this document?
• 16:57
  SPEAKER_01: Um, but they don't have to.
• 16:59
  SPEAKER_01: Um, and not that that was an issue in this case, I don't think that was argued here.
• 17:04
  SPEAKER_01: Um, but uh yeah, it's uh uh it's a good reminder of making sure that we we answer the question that's on the officer's mind, which is why do you have to be here?
• 17:18
  SPEAKER_01: Um and then the other piece of it um was the finances.
• 17:24
  SPEAKER_01: Um and uh yes, typically when there is a large deposit made into someone's bank account, um, it creates issues um because then the officers tend to think that oh, they're kind of trying to uh pad their bank account to make sure that they to make it look like they have um more money than they maybe have access to.
• 17:55
  SPEAKER_01: Um and uh again, it comes down to explaining what those large deposits are.
• 18:02
  SPEAKER_01: Um, but even when they are explained, um, it might not be enough.
• 18:07
  SPEAKER_01: The officer might think, well, okay, so you know there's uh I think it was kind of like an investment account that got um uh cashed out or something and got put into the the bank statement, then there they can say, okay, they're they don't have a steady stream of income to be able to sustain themselves while they're here in Canada without working.
• 18:33
  SPEAKER_01: Um, and that is a concern because when you're applying for a study permit, um there are restrictions on working with without having to get a work permit.
• 18:44
  SPEAKER_01: Um, so officers want to see you know, will you work without authorization or not?
• 18:49
  SPEAKER_01: Or what's your what's the likelihood that you'll work without authorization?
• 18:52
  SPEAKER_00: I think that's a very good point you make, Emory, though like the steady stream of income or money coming in, right?
• 18:59
  SPEAKER_00: You could have a huge lump sum sitting there, but it may still not satisfy the officer, right?
• 19:04
  SPEAKER_00: And then when you have lump sums coming there, it is on you to explain how they came there.
• 19:09
  SPEAKER_00: And I always say, and I mean, you know, sometimes I think I might be taking it really far, but um, trace the money, right?
• 19:18
  SPEAKER_00: If you say it came from a certain source, show that source, show that transfer, show that canceled investment.
• 19:25
  SPEAKER_00: So there's no questions in the officer's mind.
• 19:29
  SPEAKER_00: And we've spoken about this before.
• 19:30
  SPEAKER_00: They don't have a lot of time to look at these files.
• 19:33
  SPEAKER_00: So you have to make it easy for them to figure this out.
• 19:36
  SPEAKER_00: And I can guarantee you, a lot of them don't have a finance background, right?
• 19:40
  SPEAKER_00: So you, it's up to you as an applicant to make sure whatever you're putting there is clear, concise, and easy to read.
• 19:47
  SPEAKER_00: And that also goes into why you need to come to Canada in Great Fall when you've been studying virtually.
• 19:53
  SPEAKER_00: There could be very legitimate reasons, but they weren't put in front of the officer.
• 20:00
  SPEAKER_01: The other concern with the finances when there is a large lump sum um from uh like a long-term investment account, for example, um that get gets withdrawn from, um then it weakens in the officer's perspective, uh, the tie that the person have uh has uh to their home country.
• 20:22
  SPEAKER_01: Um because as we were saying earlier, one of the main questions is will you leave at the end of your stay?
• 20:32
  SPEAKER_01: Um and officers it or it's within the officers' uh rights to think, well, okay, so if they are um withdrawing from long-term investment accounts, then they're kind of winding down their life back home.
• 20:50
  SPEAKER_01: Um, so they don't have much to return to.
• 20:53
  SPEAKER_01: And uh they which means they don't have a lot of motivation to go back to their home country.
• 20:59
  SPEAKER_01: Um and that becomes a negative factor in the global assessment of the whole application.
• 21:07
  SPEAKER_01: Um, with temporary residence applications, um, most of the time there isn't just one thing um that makes or breaks um an application.
• 21:18
  SPEAKER_01: And in the context of judicial reviews, as long as the officer has shown their work, uh so to speak, so they um gave good enough reasons that the court can follow and it makes sense, um then most of the time the courts don't intervene.
• 21:42
  SPEAKER_00: Yeah, I mean, there's deference given to the officers.
• 21:46
  SPEAKER_00: Um, and there are times when you know there isn't a clear path how the officer came to that decision.
• 21:52
  SPEAKER_00: And when we're doing these kind of cases and we're getting the rule now, we're looking for that.
• 21:56
  SPEAKER_00: Like, hey, how did the officer come to this decision?
• 21:58
  SPEAKER_00: Does it make sense?
• 22:00
  SPEAKER_00: Where was the connection?
• 22:01
  SPEAKER_00: Was the connection lost somewhere?
• 22:02
  SPEAKER_00: And if there's no connection, then you know you have a better chance at judicial review.
• 22:08
  SPEAKER_00: Now, if it is very clearly outlined, and the officer went by point by point at their issues, it becomes much harder.
• 22:14
  SPEAKER_00: The next case I want to talk about is Benson versus Canada 2026, FC839.
• 22:20
  SPEAKER_00: So this case actually involves a Nigerian citizen who sought protection in Canada, claiming that he would face persecution in Nigeria because of his sexual orientation.
• 22:30
  SPEAKER_00: His pre-removal risk assessment, his PRA application was denied without an oral hearing, and he applied for judicial review.
• 22:38
  SPEAKER_00: So the key facts of this case are the applicant arrived here in Canada in December 2024 and was subject to an exclusion order, making him ineligible to have a refugee claim heard by the refugee protection division.
• 22:51
  SPEAKER_00: Instead, his protection was assessed through the Prague.
• 22:54
  SPEAKER_00: He claimed he feared persecution in Nigeria due to his sexual orientation.
• 22:59
  SPEAKER_00: And in support of his Prah application, he had submitted identity, personal identity documents, affidavits from family members, brother, aunts, Canadian cousins, confirming his sexual orientation.
• 23:11
  SPEAKER_00: There was written submissions from counsel, and there was a personal narrative explaining his experiences and fears given his sexual orientation in Nigeria.
• 23:22
  SPEAKER_00: Now, ultimately, the pro was refused, and it was refused without holding an oral hearing.
• 23:27
  SPEAKER_00: The officer had found that the evidence was vague, lacking in details regarding his relationship with same-sex partners, timeline of events, alleged police raids, and interactions with authorities.
• 23:39
  SPEAKER_00: So the officer did not make any findings regarding whether the applicant was gay and did not assess the country conditions evidencing concerning risks faced by the LGBTQ persons in Nigeria.
• 23:50
  SPEAKER_00: So after the refusal, remover arrangements were initiated.
• 23:55
  SPEAKER_00: The applicant later did fail to report for removal, leading the minister to argue that his judicial review application should be dismissed because he came to court with unclean hands.
• 24:06
  SPEAKER_00: So the court was considering three principal issues here.
• 24:10
  SPEAKER_00: Should the application be dismissed because the applicant failed to report for removal, the clean hands issue.
• 24:17
  SPEAKER_00: Was the pro process unfair because there was no oral hearing held?
• 24:23
  SPEAKER_00: And was the pro decision unreasonable?
• 24:26
  SPEAKER_00: So Emory, walk me through this.
• 24:34
  SPEAKER_01: The court allowed the application for judicial review.
• 24:40
  SPEAKER_01: And it this is an interesting one because it uh doesn't happen very often.
• 24:47
  SPEAKER_01: The bulk of the decision deals with the government's um submissions on whether the applicant had quote unquote clean hands.
• 25:04
  SPEAKER_01: And what the government wanted was that the judicial review not even be heard on its own merits.
• 25:14
  SPEAKER_01: Um, so that the the court does not even get into whether or not the decision was procedurally fair or was or if it was reasonable.
• 25:24
  SPEAKER_01: Um don't even discuss that because the government said um the applicant failed to show up for his removal.
• 25:36
  SPEAKER_01: Um and that is why they said they didn't come to the court with clean hands.
• 25:43
  SPEAKER_01: Um that is to say, they did not comply with their obligations under uh under the law.
• 25:51
  SPEAKER_01: Um and the court said, no, no, that's not uh concern here, because one, the clean hands doctrine typically uh means that the person should not get the remedy they're seeking, um, after there's been a determination on whether or not their uh you know the decision was uh reasonable or not or fair.
• 26:22
  SPEAKER_01: Um it doesn't mean that the case should not even be heard at all.
• 26:28
  SPEAKER_01: Um and the other point that the court made was um the how the applicant had unclean hands had nothing to do with the application before the court.
• 26:47
  SPEAKER_01: So what the court is reviewing is the proceed, um, the pre-removal risk assessment, um, which is when an officer looks at uh whether or not the person would face any sort of risk of persecution or risk to their life, or um, you know, there's there's a danger um to their safety if they had to go back home.
• 27:14
  SPEAKER_01: That has nothing to do with whether or not he appeared for his removal proceedings.
• 27:22
  SPEAKER_01: Um so ultimately the court said, no, we will hear this case, we will um review it on its own merits.
• 27:33
  SPEAKER_01: Uh the clean hands doctrine does not apply here.
• 27:37
  SPEAKER_01: We still have to um look at whether or not the decision was procedurally fair, um, which they said it wasn't because there were credibility concerns, and uh credibility concerns should have led to an oral hearing.
• 27:54
  SPEAKER_01: So most of the time, pre-removal risk assessments are only um assessed on the paper record, so on the documents that um get submitted.
• 28:06
  SPEAKER_01: If there is a credibility concern, generally the officer is supposed to hold a hearing to go over those credibility concerns.
• 28:16
  SPEAKER_01: That wasn't done.
• 28:18
  SPEAKER_01: Um and uh on the reasonableness piece, so on how the officer um assessed the evidence that was in front of them, um, the court found that they didn't engage with the applicant's sexual the evidence about his sexual orientation, which is which was the basis of um the risk that they are potentially facing if they had to go back to Nigeria.
• 28:46
  SPEAKER_01: Um so on those two points, like on the substance of the uh decision, there's I don't I wouldn't say there's anything new or groundbreaking there, but on the issue of the clean hands doctrine and then how it applies when it applies, most of all, um the it was a good reminder of uh you know when it's applicable.
• 29:14
  SPEAKER_01: I think there was a good line in the decision that said something along the lines of like two wrongs don't make a right, um, which is to say just because the applicant does not did not show up for uh his removal doesn't mean the government should be off the hook for rendering an unreasonable and procedural and unfair fraud decision.
• 29:39
  SPEAKER_00: Yeah, so it's like very clear.
• 29:40
  SPEAKER_00: If there's no direct connection with the applicant's failure to report for removal and the fairness and legality of the Pra, you can't connect those two.
• 29:50
  SPEAKER_00: So it's unclean hats.
• 29:51
  SPEAKER_01: Yeah, so uh sometimes um we we see this come up, but the there is a connection.
• 29:58
  SPEAKER_01: So uh for example, if the court is reviewing a um I don't know, a detention review, for example, um, where uh you know they're deciding whether or not the person should remain in immigration hold, um, or not, um whether or not the person uh evaded removal beforehand is is a relevant question there.
• 30:29
  SPEAKER_01: Um or in the context of uh stay motion is another example.
• 30:36
  SPEAKER_01: So again, um we're deciding whether a person's removal from Canada should be paused.
• 30:43
  SPEAKER_01: Um that again becomes an issue um in the kind of the balancing assessment.
• 30:52
  SPEAKER_00: Um but I mean that that in and lines up with like the legality.
• 30:57
  SPEAKER_00: Can we hold this person in detention based on them potentially being a flight risk, right?
• 31:03
  SPEAKER_00: Um that really goes to the crux of the assessment being done.
• 31:07
  SPEAKER_00: Um, and then your past immigration history comes to haunt you, right?
• 31:12
  SPEAKER_00: Yeah, yeah.
• 31:14
  SPEAKER_01: Um, and yeah, the other uh reason uh kind of going back to, and this is maybe lawyers nerding out a little bit, but it was significant for me that the government did not want the judicial review to go through in the first place.
• 31:35
  SPEAKER_01: Um so they weren't arguing that, okay, the decision was we accept that the decision was unfair or unreasonable, um, but it should still stand because of unclean hands or whatever.
• 31:51
  SPEAKER_01: It was that don't even look at whether or not it was um unreasonable or unfair.
• 31:59
  SPEAKER_01: Um, so they put in a motion to kind of stop the hearing, and um the court had uh they weren't having it, which was uh you know a welcome decision.
• 32:12
  SPEAKER_00: So the next case we do want to talk about is Wahhab versus Canada, Citizenship and Immigration 2026, FC 694.
• 32:19
  SPEAKER_00: So some of the key facts in this case is in October 2022, Canada introduced a temporary public policy to facilitate sponsorships for certain Afghan refugees.
• 32:28
  SPEAKER_00: The policy allowed eligible applicants to apply to the group of I sponsorships without submitting an RSD document.
• 32:34
  SPEAKER_00: The program was kept at 3,000 individuals and would close once capacity was met or by October 17, 2023.
• 32:42
  SPEAKER_00: Mr.
• 32:43
  SPEAKER_00: Hove submitted his application on December 5th, 2022, intending to apply under this temporary policy.
• 32:49
  SPEAKER_00: His application did not include the RST document.
• 32:52
  SPEAKER_00: IRCC later returned the application as incomplete because it lacked the mandatory documents, which was the RST document required for the regular overseas refugee sponsorship applications.
• 33:04
  SPEAKER_00: Mr.
• 33:04
  SPEAKER_00: Wahab argued that his application clearly referred to the public policy.
• 33:10
  SPEAKER_00: The officer failed to consider the public policy, and the officer should have allowed him to address any concerns before returning the application.
• 33:19
  SPEAKER_00: Evidence before the court showed that the temporary policy had reached its cap on December 1st, 2022.
• 33:25
  SPEAKER_00: So effectively it was closed as of December 1st, 2022.
• 33:29
  SPEAKER_00: Keeping in mind his application received December 5th, 2022.
• 33:34
  SPEAKER_00: So four days before his application was received, the CAP was met.
• 33:40
  SPEAKER_00: The record also contained no evidence that Mr.
• 33:43
  SPEAKER_00: Wahhab complied with the temporary policy's specific submission instructions, including the required email subject line identifying the application as to be made under the temporary policy.
• 33:55
  SPEAKER_00: So the three main issues in this case were was it reasonable for IRCC to process the application as a regular sponsorship obligation rather than under the temporary policy?
• 34:08
  SPEAKER_00: Second, was the decision procedurally unfair because Mr.
• 34:12
  SPEAKER_00: Whab was not given an opportunity to correct the alleged deficiency?
• 34:17
  SPEAKER_00: And then three, even if there was an error, would granting judicial review be futile because the temporary policy program was already full?
• 34:26
  SPEAKER_01: This case is a cautionary tale to make sure you follow the instructions to the letter when you're submitting an application.
• 34:42
  SPEAKER_01: Just to give a little bit of a background, um in general, when someone is sponsoring a refugee from overseas uh to be resettled in Canada, um, there has to be a document that says this person is a refugee.
• 35:03
  SPEAKER_01: Um so that's called the refugee status document um or refugee status determination document.
• 35:11
  SPEAKER_01: Um and back in 2022, um sort of in the fall of 2022, in light of everything that was going on in Afghanistan, um, the government had a very, very, very limited program of that was capped at only 3,000 applicants that allowed refugee resettlement applications for Afghan refugees um without that refugee document.
• 35:38
  SPEAKER_01: Um and all the other requirements were the same.
• 35:41
  SPEAKER_01: It's just that they um weight that one piece of it.
• 35:46
  SPEAKER_01: Um and there was a very specific way to apply, which was to um essentially send the application package in an email to IRCC's dedicated office, and it had to have a certain subject line um format.
• 36:02
  SPEAKER_01: Um and yeah, it had to be submitted uh either by a certain date or before the program filled up, which you didn't know when it was gonna fill up because there's so few spots and so many applicants.
• 36:21
  SPEAKER_00: The most dangerous type of application to you.
• 36:24
  SPEAKER_01: Yeah.
• 36:25
  SPEAKER_01: Um the and I uh we we submitted a few of them back in the day, and it was a uh whirlwind.
• 36:35
  SPEAKER_01: Um it was mayhem.
• 36:38
  SPEAKER_01: We had to get the application in on the day that the program opened, and then start praying that it was one of the 3,000 that they were going to process.
• 36:51
  SPEAKER_00: And that's a really good point because you look this policy was supposed to be around for a year, right?
• 36:58
  SPEAKER_00: So you have the indication, oh, well, I'll have a year, I'll slowly get my stuff together, you know.
• 37:02
  SPEAKER_00: I got it, or I'm busy right now.
• 37:05
  SPEAKER_00: But reality is a lot of these programs open and close really quick.
• 37:11
  SPEAKER_00: We have programs that open and close on the same day within hours because there is that demand.
• 37:17
  SPEAKER_01: With this one, I think they announced it um two weeks before that they were going to open it.
• 37:23
  SPEAKER_01: So we had two weeks to put together a whole refugee claim, um, which is uh quite involved.
• 37:32
  SPEAKER_01: Um luckily we managed to, luckily, our clients managed to get in.
• 37:37
  SPEAKER_01: But again, there's a fair amount of luck involved.
• 37:41
  SPEAKER_01: Um but to sort of increase that luck, you have to make sure that especially with these types of temporary policies that are capped, that are time limited, um, that you are following um the instructions to the letter.
• 37:59
  SPEAKER_01: Um because part of the reason why this one got didn't get processed under that temporary public policy was it wasn't submitted um the the right way.
• 38:12
  SPEAKER_01: They didn't email it, they didn't use that specific subject line template.
• 38:17
  SPEAKER_01: Um so what ended up happening was the officer treated it as a regular refugee sponsorship application, which means it required um a refugee status determination document.
• 38:34
  SPEAKER_01: Um, and the court agreed that that that's a reasonable finding.
• 38:40
  SPEAKER_01: And it didn't matter that you know, even if you're saying up and down the application, this we want this to be processed under this public policy.
• 38:51
  SPEAKER_01: If you're not submitting it according to the public policy, then it is open to an officer to say, okay, yeah, it doesn't qualify for it.
• 38:58
  SPEAKER_01: We're going to treat this under the regular stream, doesn't have all the documentation for the regular stream.
• 39:03
  SPEAKER_01: So I think it it wasn't even taken into processing.
• 39:08
  SPEAKER_00: Yeah, and I think like that's a good point to make.
• 39:10
  SPEAKER_00: Like in this case, you know, it was outlined that this is the policy that they want to be a part of, I believe, in the submission letters in various parts.
• 39:20
  SPEAKER_00: But the entire application, once it was completed, wasn't submitted in the avenue that it was outlined to be submitted as per this public policy.
• 39:30
  SPEAKER_00: And you can imagine probably why that is, because they have certain channels of how to filter these applications.
• 39:38
  SPEAKER_00: And how are they ever going to keep a quota up to tabs if they're just going in the regular way, right?
• 39:45
  SPEAKER_00: Um so unfortunately for this individual, that did happen to him.
• 39:52
  SPEAKER_00: But on the flip side, even if the quota said, okay, you know, maybe there is some leniency, the quota was met.
• 39:59
  SPEAKER_01: The quota was met.
• 40:01
  SPEAKER_01: And with that particular program, it again it's extra unfortunate because they probably didn't know the quota was met when they applied, um, because it wasn't publicly shared.
• 40:15
  SPEAKER_01: Um, so uh I think it said the quota was met on December 1st, the application was submitted on December 5th.
• 40:25
  SPEAKER_01: It is entirely possible that the applicant had no idea that the quota was met on December 5th.
• 40:32
  SPEAKER_01: Um, but again, from the perspective of IRCC and the courts, um, they decided that yeah, their hands were tied, even if we could fix this.
• 40:43
  SPEAKER_00: Um it it it was it was outside of the yeah, it kind of gives me PPSD from like the TR to PR pathway program to the parental programs or the caregiver programs, which they tend to have opened on you know the stat holiday of January 2nd, the last couple of years, right?
• 41:00
  SPEAKER_00: And you're like, I'm there, I don't know if I made it.
• 41:04
  SPEAKER_00: Now is a way, especially with the parentals, right?
• 41:06
  SPEAKER_00: They had closed it for a couple of years and then the program and you submit it, and you're like, I have no idea if we made for months, yeah.
• 41:15
  SPEAKER_01: No, for months.
• 41:16
  SPEAKER_01: You have no idea if your application is being processed or not.
• 41:19
  SPEAKER_01: It's very nerve-wracking for everyone involved.
• 41:21
  SPEAKER_00: Yeah.
• 41:21
  SPEAKER_00: And I think the biggest cautionary tail here is don't sit on it.
• 41:25
  SPEAKER_01: Don't sit on it, make sure you follow the instructions.
• 41:28
  SPEAKER_00: Yeah.
• 41:28
  SPEAKER_00: Federal court decisions are fast.
• 41:31
  SPEAKER_00: Decisions come out without notice, and they don't always make the headlines.
• 41:35
  SPEAKER_00: If anything we covered today is relevant to your situation, don't wait.
• 41:40
  SPEAKER_00: Go for consultation following the link below, and we'll discuss your potential options available to you.
• 41:45
  SPEAKER_00: If this episode was helpful, subscribe and don't miss the next one.
• 41:49
  SPEAKER_00: We'll see you soon.