Saha v. Canada (Minister of Citizenship and Immigration), 2003 FC 1325

Date: 20031110

Docket: IMM-5350-01

Citation: 2003 FC 1325

BETWEEN:

                                                                 SHANTONU SAHA

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

von FINCKENSTEIN J:

[1]                 The applicant is a 22 year-old man from New Delhi, India. His maternal aunt is a Canadian citizen. In the spring of 2001, he was accepted to a Canadian college to study English for the academic year of 2001-2002. His aunt agreed to provide for his living expenses while in Canada. He paid the college its full tuition of $10, 055.00 and applied for a student visa at the Canadian High Commission in New Delhi.

[2]                 The applicant made three unsuccessful applications for a student visa in 2001. They were denied on June 13th, October 8th and October 23rd. The latter is the subject of these proceedings.

The Decision

[3]         The visa officer who considered the applicant's third application was Ms. Soyoung Park.

[4]                 In a form letter dated October 23, 2001 Ms. Park rejected the third application for the following reason:

You have not demonstrated that you are seeking admission for a temporary purpose as... (y)ou were not able to adequately clarify inconsistencies raised in your application and therefore could not satisfy the visa officer that your stated reasons for visiting Canada were genuine.

[5]                 However, in an affidavit sworn on February 5th, 2002, Ms. Park stated that she had found the applicant's claim that he wished to go to Canada to learn English not to be credible because:

12.            After reviewing all of the evidence, I was not satisfied that the Applicant had credible reasons for studying in Canada. I considered various factors in coming to my decision to refuse his application, including the Applicant's English language skills as demonstrated in his ability to conduct his previous interview in English, his lack of effort in improving his English skills in widely available courses in India, and the Applicant's responses to why he wanted to study English in Canada.

13.            Ultimately, the Applicant failed to satisfy me that he would have pursued the study of English in Canada and that he would leave Canada after his studies.

The Issues

[6]         The applicant raises three issues however for the reasons set out below we only need to consider the first.

            Issue 1.          Did the visa officer err by failing to provide full reasons as to why she had refused the application?

Analysis

[7]         The applicant argues that the application was rejected for the reason stated in the CAIPS notes and not for the reasons stated in Ms. Park's letter of October 23^rd 2001. I would go further. In my view, Ms. Park's affidavit makes it clear that the visa was rejected because she did not accept his reasons for coming to Canada; i.e. the need to perfect his English. Yet there is nothing in the letter of October 23rd by which the applicant could ascertain that is the reason. The letter merely speaks of "inconsistencies raised" by the application. It is not an inconsistency that is the issue here; rather, the visa officer did not accept the fact that the applicant needed to come to Canada to perfect his English. The form letter that was sent to the applicant allows the officer to check box 10 entitled 'Other' and then to insert a reason why the application is being refused. That could have been done here. A sentence such as " you have failed to demonstrate why you need to come to Canada to improve your English language skills" would have sufficed. Without such an explanation the applicant is at a loss to know what he has to do to comply with the visa application rules.                         

Finding

[8]         The failure to state the proper reason for rejection of the visa amount to a violation of procedural fairness and is a ground for review under s. 18.1(4)(b) of the Federal Court Act, R.S.C. 1985 c. F-7. As Hugessen J. held in Mehterian v. Canada (M.E.I.), 1992 F.C.J. No. 545, in respect of the need to provide sufficient reasons:

If this obligation is to be met, the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary.

[9]                 Consequently this application is allowed. The order of the Visa officer of October 23rd, 2001 is set aside and the matter is being referred to another visa officer for reconsideration.

"K. von Finckenstein"   

                                                                                                       JUDGE                     

Ottawa, Ontario

November 10, 2003

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                                     IMM-5350-01

STYLE OF CAUSE:                                                     SHANTONU SAHA

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                                             TORONTO, ONTARIO

DATE OF HEARING:                                                               NOVEMBER 6, 2003

REASONS FOR ORDER :                                        von FINCKENSTEIN J.

DATED:                                                                                       NOVEMBER 10, 2003

APPEARANCES:

Ms. Preevanda K. Sapru                                                               FOR APPLICANT

Mr. Michael Butterfield                                                     FOR RESPONDENT

SOLICITORS OF RECORD:

Ms. Preevanda K. Sapru

Barrister and Solicitor

Toronto, Ontario                                                                           FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada                                             FOR RESPONDENT