Date: 20040217
Docket: IMM-445-03
Citation: 2004 FC 243
BETWEEN:
GENADIY NOVAK
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
MACTAVISH J.
[1] Genadiy Novak was fourteen years old when he came to Canada from Ukraine on a student visa on June 8, 1997. He came to Canada to study at Yeshiva Reishis Chachma, which is part of the Torah Research Academy in Toronto. The Academy teaches young men from the former Soviet Union about Judaism.
[2] The administrative arrangements for student authorizations were handled by the Academy's secretary, and Mr. Novak's student authorization was successfully extended on at least one occasion. Unfortunately, the secretary was ill in the summer of 2001, and Mr. Novak's student authorization was inadvertently allowed to expire on August 31, 2001.
[3] Mr. Novak and the Academy became aware of the oversight shortly thereafter, and an application to extend Mr. Novak's visa was submitted to Citizenship and Immigration Canada (CIC) on September 25, 2001, some 25 days after the visa had expired. What happened to Mr. Novak's reinstatement application after it was submitted to CIC is not at all clear. Indeed, Mr. Novak's counsel was accurate in describing the file as "a mess".
[4] It appears from the file that Mr. Novak's application may have been considered by only one CIC representative, or by as many as four different individuals. It appears that anywhere from one to four separate decisions could have been made in relation to the application. What is clear, however, is that in January of 2003, more than fifteen months after he filed his application to have his student authorization reinstated, Mr. Novak became aware that his request had been refused. He now seeks to have the refusal decision set aside, alleging that an unidentified visa officer erred in law in the way in which the reinstatement request was handled.
BACKGROUND
[5] On September 25, 2001, Mr. Novak filed his application to extend his stay in Canada with CIC. On the application form, he explains the reasons why his student authorization had been allowed to expire. Mr. Novak was asked to provide information with respect to his means of support, to which he responded that he was in Canada on a scholarship. The application was accompanied by payment of a $125 fee, which was evidently the processing fee for having a student authorization extended in cases where it had not yet expired.
[6] By letter dated October 16, 2001, CIC advised Mr. Novak that the fee for a reinstatement application was $200, rather than $125. He was asked to pay the additional amount, and to provide CIC with a letter from his educational institution outlining the course of study that he was pursuing, as well as the start date and estimated completion date for the program.
[7] On October 23, 2001, Mr. Novak sent the additional fee to CIC, along with a letter confirming that he was a student in good standing at the Academy, where he was enrolled in religious studies. CIC was advised that Mr. Novak had commenced his studies in October of 1997, and was scheduled to complete the program in June of 2004. The covering letter from the Academy requested that Mr. Novak's student authorization be reinstated for a period of three years, to allow him to complete his studies.
[8] By letter dated November 15, 2001, Mr. Novak was advised that his application had been transferred to the CIC Centre in Etobicoke for processing and that CIC would be contacting him in due course with further instructions. The letter further instructed Mr. Novak not to contact the CIC Centre regarding the status of his case.
[9] Mr. Novak heard nothing further from CIC for over a year with respect to his reinstatement request. In December of 2002, he was contacted by CIC, and was told to attend an interview at the Etobicoke branch of CIC to determine whether he should be authorized to remain in Canada.
[10] Mr. Novak attended at CIC's offices on January 9, 2003, accompanied by David D'Ancona, the President of the Torah Research Academy. It appears from the record that the interview was conducted by a woman by the name of "S. Bland". It appears that Ms. Bland advised Mr. Novak that a report had been made against him under paragraph 27(2)(e) of the old Immigration Act. Such a report is made when a person who has who entered Canada as a visitor remains in Canada after that person has ceased to be a visitor. According to Mr. Novak's affidavit, Ms. Bland advised him that he had two choices: he could leave Canada voluntarily, or he could file refugee claim.
[11] Mr. D'Ancona explained to Ms. Bland that the delay in requesting an extension to Mr. Novak's student authorization had not been Mr. Novak's fault. As well, he explained that Mr. Novak had filled out the requested forms and paid the necessary fees some fifteen months earlier, and that they had heard nothing since that time with respect to his application.
[12] Upon receiving this information, Ms. Bland left to consult with her supervisor. On her return to the interview room, she reiterated that Mr. Novak had only the two options that she had previously identified. Given his desire to stay in Canada to complete his studies, Mr. Novak opted to make a refugee claim. There is no information before me with respect to the status of that claim.
[13] CIC's records contain a reference to a negative decision having been made with respect to Mr. Novak's reinstatement application some time in or before April of 2002. The record does not contain a copy of the decision itself, however, nor are any reasons for the decision contained in the file. It is common ground that at no time was Mr. Novak ever made aware that a decision had been made with respect to his application.
[14] CIC's records also contain the January 9, 2003 notes of one B. Lloyd, who appears to be the supervisor consulted by Ms. Bland that day. The Lloyd notes observe that although there was no decision on file, an overstay report had been prepared with respect to Mr. Novak. After reviewing the history of the matter, the notes state:
Based on info allegation stands. Will have H. Brooks revisit [student authorization] request however sticky on file notes not approved.
[15] It further appears from CIC's records that "H. Brooks" did review Mr. Novak's application on January 13, 2003. The notes made by H. Brooks appear in the space on Mr. Novak's reinstatement form reserved for CIC's disposition of the application. The notes say:
Subject out of status since 1/9/01. Requesting re-instatement. No proof of support or copy of airline ticket submitted. Re-instatement refused. It is noted that a 27 report was written 25/4/02 and no refusal letter was sent to client re the re-instatement request. Refusal of re-instatement remains the same.
There is nothing in the file to indicate that this decision was ever communicated to Mr. Novak.
ISSUES
[16] The issues raised by this application are:
A. Did the Officer err in law by failing to provide reasons for his or her decision to deny the application for reinstatement and an extension of Mr. Novak's student authorization?
B. Did the Officer err in law by exercising his or her discretion in a manner that was contrary to law?
STANDARD OF REVIEW
[17] As the Supreme Court of Canada noted in Baker v. Canada (MCI), [1999] 2 S.C.R. 817, the standard of review for discretionary decisions of visa officers is reasonableness simpliciter.
ANALYSIS
A. Did the Officer err in law by failing to provide reasons for his or her decision to deny the application for reinstatement and an extension of Mr. Novak's student authorization?
[18] It is well-established that clear reasons for decisions made in relation to visa applications must be provided to applicants. Saha v. Canada (MCI) 2003 F.C. 1325. A failure to state proper reasons for the rejection of a visa application is a violation of procedural fairness, and a ground for review under s. 18.1(4)(b) of the Federal Court Act, R.S.C. 1985 c. F-7.
[19] One of the difficulties with this case is that it is impossible to determine from CIC's records how many decisions were made with respect to Mr. Novak's reinstatement request, when those decisions were made, and by who. Although there was some suggestion that the respondent was unclear as to which decision was under review in this case, this is hardly Mr. Novak's fault, given the state of the record. In any event, this argument was not pursued at the hearing of the application, and there is no suggestion that the respondent was prejudiced in any way by any lack of clarity with respect to Mr. Novak's judicial review application. Indeed, all of the events that could possibly have amounted to decisions were fully addressed in argument.
[20] On the basis of the record before me, I am not persuaded that a decision was in fact made with respect to Mr. Novak's application at any time prior to January of 2003. However, in the event that a decision was made by someone on or before April 25, 2002, the failure of CIC to advise Mr. Novak of the decision, coupled with the complete failure to provide even the most rudimentary of reasons for the decision means that the decision should be set aside on this basis alone.
[21] It appears from the record that the purpose of the interview with Ms. Bland was likely to deal with the Section 27 report. In the circumstances, however, it is entirely understandable that Mr. Novak assumed that the meeting was intended to address his reinstatement application. Mr. Novak's evidence is that he was told by Ms. Bland on January 9, 2003 that nothing could be done with respect to his reinstatement request. Once again, to the extent that a decision may have been made by Ms. Bland that day in relation to the reinstatement request, Ms. Bland's notes of the meeting do not disclose any reasons for that decision, and therefore, if there was a decision made, it cannot stand.
[22] It is also unclear whether B. Lloyd made a decision with respect to Mr. Novak's reinstatement application on January 9, 2003. Although the notes express an intention to have H. Brooks revisit Mr. Novak's student authorization request, after reviewing the chronology of events, the notes also say "Based on info the decision stands". It is impossible to discern from this what B. Lloyd's reasons may have been for refusing the reinstatement request. As a consequence, these reasons are inadequate to support any decision that B. Lloyd may have made.
[23] This leaves the decision of "H. Brooks" of January 13, 2003, which takes me to the second issue raised by Mr. Novak.
B. Did the Officer err in law by exercising his or her discretion in a manner that was contrary to law?
[24] Mr. Novak submits that the extension and reinstatement process exists expressly to address circumstances like his. In particular, section 182 of The Immigration and Refugee Protection Regulations, SOR/2002-227 states:
182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay and has not failed to comply with any other conditions imposed. [emphasis added]
[25] The Officer's decision reflects an improper exercise of discretion, Mr. Novak says. Although H. Brooks bases the refusal on Mr. Novak's failure to provide a copy of his aeroplane ticket or proof of support, CIC never asked him for this information. In the October 16, 2001 letter, CIC asked Mr. Novak to complete the appropriate form, and provide a $200 fee, as well as a letter from his school. He did this within 90 days of the expiration of his student authorization. It is a perverse exercise of discretion for the Respondent to refuse the application for failing to provide documentation it did not even request.
[26] Boxes 11 and 12 of the application form request information about the applicant's level of financial support in Canada as well as his or her departure plans. It was incumbent on Mr. Novak, the respondent says, to submit the relevant documents to support his application.
[27] I have reviewed the form used for applications to have a stay in Canada extended. Boxes 11 and 12 of the form do not require the submission of any specific documents. Box 11 asks about the applicant's departure plans. Mr. Novak indicated that he proposed to leave Canada in June of 2004. Given that the form was completed in 2001, it would be completely unreasonable to require that an aeroplane ticket be provided for a trip that was to take place three years hence. Perhaps it is for this reason that the checklist that CIC provides for use in connection with this form does not require proof of a valid return ticket for student applicants, although it does require that other classes of applicants provide such evidence.
[28] As a result, I am satisfied that it was a perverse exercise of discretion on the part of H. Brooks to refuse Mr. Novak's reinstatement application because he did not provide a copy of an airline ticket.
[29] Similarly, I am satisfied that contrary to the statement in H. Brooks' reasons, there was evidence before the officer with respect to Mr. Novak's financial resources. Mr. Novak indicates on the application form that he is in receipt of a scholarship. CIC was provided with evidence that Mr. Novak was a student in good standing at the Torah Research Academy. At the January 9, 2003 meeting, CIC was provided with a copy of a letter from Art Eggleton, the Member of Parliament for York Centre, wherein Mr. Eggleton advises that the Torah Research Academy sponsors students from the former Soviet Union to study in Canada. Also in the file was a letter from the Toronto Dominion Bank confirming the significant financial resources of the school. While it was open to H. Brooks to accept or reject this evidence, it was an error not to give it any consideration.
[30] To conclude, section 182 of The Immigration and Refugee Protection Regulations deals expressly with applications for the restoration of student authorizations where such applications are brought within 90 days of the expiry of the student's previous authorization. This section states that "an officer shall restore status" if the student meets the initial requirements for their stay and has not failed to comply with any other conditions imposed. This is not discretionary language. Mr. Novak complied with the conditions imposed on him by CIC. For the reasons given, I am satisfied that the decision of H. Brooks to deny his reinstatement request was perverse, and should be set aside.
CERTIFICATION
[31] Neither party has suggested a question for certification, and accordingly none will be certified.
O R D E R
1. The application for judicial review is allowed and the matter is remitted to a different officer for redetermination.
2. No serious question of general importance is certified.
"Anne L. Mactavish"
Judge
OTTAWA
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20040217
Docket: IMM-445-03
BETWEEN:
GENADIY NOVAK
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-445-03
STYLE OF CAUSE:
GENADIY NOVAK v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 11, 2004
ORDER AND REASONS FOR ORDER:
Mactavish J.
DATED: February 17, 2004
APPEARANCES:
SOLICITORS OF RECORD:
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Mr. Yehuda Levinson
Levinson & Associates
Toronto, Ontario
|
FOR THE APPLICANT
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Department of Justice
Toronto, Ontario
|
FOR THE RESPONDENT
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