Date: 20000817
Docket: IMM-4749-99
BETWEEN:
PARAMESWARY SIVANATHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered Orally from the Bench
on 14 August 2000 at Vancouver, BC)
PELLETIER, J.
These are reasons which I gave orally at the conclusion of the hearing which have been edited for grammar and readability.
[1] The Applicant is a 39 year old woman whose husband disappeared in 1991 during the Sri Lankan civil war.
[2] In 1993, she applied for a visa to immigrate to Canada as an assisted relative. Following her application, she was interviewed twice to see if she qualified for the Special Measures program within which she had applied. She told the interviewers that she survived on money her husband left her and money which her brothers in Canada sent her.
[3] In June 1994 she was asked for proof that her brothers were willing to support her which she provided in July of 1994, in the form of an undertaking signed by one of her brothers.
[4] In August of 1994 she was recommended for acceptance under the Special Measures program. The CAIPS notes show that a departmental officer suggested that Minister's permits be issued to deal with the problem of the admission of missing husband.
[5] Instead, in May 1995, some 9 months later, the Applicant was asked to provide a death certificate to satisfy a requirement that in the mind of at least one departmental officer had already been resolved.
[6] It took the Applicant until June of 1996 to hand deliver the original death certificate to Canada Immigration. In August of 1996 she was asked to provide another one as the original had apparently been misplaced. She was able to replace it in August 1996.
[7] In September of 1996 the Immigration officer doubted the validity of the certificate and it was sent back to the Sri Lankan officials for verification.
[8] I pause to note that in requesting the death certificate, the Immigration Officer specifically referred the applicant to the Evidence Ordinance of Sri Lanka suggesting that the Applicant could apply to district court to obtain a death certificate as her husband had been missing for one year.
[9] In sending the certificate off for verification, the second Immigration Officer noted that if her husband was "unknown/abducted and killed" the certificate should have come from Missing Persons Commission. That officer had the file before him and should have known why the Applicant proceeded as she did. His intervention delayed the Applicant's application for two years.
[10] In October of 1998 Immigration acknowledged confirmation that the certificate was valid. Apparently the confirmation was received in June of 1998 but it was mislaid.
[11] The Applicant was now asked to fill in new forms and to provide her brothers' income tax returns, which she did.
[12] She was advised in March of 1999 that her interview would take place in June 1999. The Interview took place and lasted 15 minutes.
[13] The issue was whether adequate arrangements had been made for her care and support. The Applicant had never said that she would be self-supporting and had always said that she would require and receive assistance from her brothers. She was never asked what arrangements had been made for her care and support. The Visa Officer concluded that the brothers income was too low and that they had others to support.
[14] They had been supporting her, though to what extend is not known, and they had undertaken to continue doing so, through the extent of that commitment is not know either.
[15] While the onus is always on the Applicant to satisfy the Visa Officer, the Visa Officer is not free to fail to ask the only material relevant question - what arrangements have been made for your care and support - and then to decide it against the Applicant. The basis of the Applicant's application was that she would receive assistance. It was a failure of the duty of fairness to make her wait 6 years for an interview and then to dismiss her application out of hand without asking her the only question which mattered.
ORDER
It is hereby ordered that:
The Application for judicial review is granted. The decision of the visa officer dated August 19, 1999 is set aside and the matter is remitted for reconsideration by another visa officer. The reconsideration of the Applicant's application shall be completed and a decision rendered within 120 days of the date of this Order unless an extension is granted by any judge of this court.
(Sgd.) "J.D. Denis Pelletier"
Judge
April 17, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Parameswary Sivanathan |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: August 14, 2000 |
REASONS FOR REASONS FOR ORDER AND ORDER OF PELLETIER, J.
APPEARANCES:
| Mr. Alistair Boulton For the Applicant |
| Mr. Mark Sheardown For the Respondent |
SOLICITORS OF RECORD:
Larson Boulton Sohn Stockholder
Barristers & Solicitors
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
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