Date: 20100823
Docket: IMM-5594-09
Citation: 2010 FC 835
Toronto, Ontario, August 23,
2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ONKAR
SINGH SODHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Onkar
Singh Sodhi seeks judicial review of the decision of a visa officer refusing
his application for a student visa. Mr. Sodhi asserts that the officer erred
in making findings that were not supported by the evidence. He also says that
he was treated unfairly as he was not provided with an opportunity to address
the visa officer’s concerns prior to a decision being made in relation to his
application.
[2]
For
the reasons that follow, I am not persuaded that the officer erred as alleged.
Consequently, the application will be dismissed.
Background
[3]
Mr.
Sodhi is a citizen of India. At the age of 11, he
was adopted by his aunt and uncle, who are both Canadian citizens. Over the
ensuing years, his new parents made several unsuccessful attempts to obtain
permanent residency for him in Canada. Their sponsorship applications were refused on the basis
that the parental relationship was not considered to be genuine.
[4]
In
1998, 2000 and 2002, Mr. Sodhi applied for visas to allow him to study in Canada. In 2002, he was
granted a temporary resident permit which allowed him to pursue studies at Algonquin College in Ottawa. He graduated from an
ESL program at Algonquin
College in December of 2003.
[5]
Mr.
Sodhi’s visa expired in February of 2004, and he was refused an extension on
May 18, 2004. He did not, however, leave Canada at that time, and a report on inadmissibility
and an exclusion order were subsequently issued against him. Although he
stated that he had no fear of returning to India, Mr. Sodhi nevertheless applied for a
pre-removal risk assessment, which was negative. He left Canada on January 29, 2005.
[6]
What
happened after Mr. Sodhi left Canada in January of 2005 is in dispute. He says that between
2005 and 2007, he was studying in India at an institution called “Manav
Rachna”, which, he says, is affiliated with Algonquin College.
[7]
It
is undisputed that Mr. Sodhi was in India in June of 2009, where he applied for
a new Canadian student visa, as he had been accepted into a three-year advanced
diploma program at Algonquin College in Ottawa.
The Visa
Officer’s Decision
[8]
The
visa officer refused Mr. Sodhi’s application as the officer was not satisfied
that he would leave Canada after the authorized
period.
[9]
From
a review of the CAIPS notes, it appears that the officer was concerned by Mr.
Sodhi’s past attempts to settle in Canada, his history of non-compliance, and his strong
family ties to Canada coupled with his apparent lack of any family ties to India.
[10]
The
officer also observed that although Mr. Sodhi left Canada in January of 2005, an Algonquin College transcript
provided by him contained marks for courses taken between January of 2005 and
the spring of 2007. This led the officer to believe that Mr. Sodhi had
re-entered Canada without authorization,
in violation of IRPA.
Did the
Officer Err by Making Findings that were not Supported by the Evidence?
[11]
Mr.
Sodhi’s first argument is that the officer erred in finding that he must have
re-entered Canada illegally after January
of 2005, a finding that he says is not supported by the evidence.
[12]
Mr.
Sodhi’s visa application form indicates that he was attending the “Manav
Rachna” institution in India between August of 2005
and June of 2007. He states that this institution is “affiliated to Algonquin”.
[13]
In
the course of the assessment process, Mr. Sodhi was asked to provide proof of
his studies “while in Canada”. It was in response
to this request that Mr. Sodhi provided copies of his Algonquin College transcripts, together
with diplomas that he received from Algonquin.
[14]
The
transcripts show Mr. Sodhi as being in attendance at Algonquin College between 2003
and 2005. There is a gap in his course record in 2005, reflecting his return
to India in January of that year.
The transcript resumes in the autumn of 2005, and records the results that he
obtained in courses taken in 2005, 2006 and 2007. Nothing on the face of the
transcript suggests that any of these courses were actually taken in India, at an entirely different
institution.
[15]
Similarly,
the diploma provided by Mr. Sodhi is an “Ontario College Diploma” issued by Algonquin College in Ottawa in 2007. Once again,
there is nothing on the face of the document to suggest that any of the course
work was completed at a different institution in a different country.
[16]
Furthermore,
the Algonquin College transcript and
diploma were provided by Mr. Sodhi in response to a request for proof of his
studies in Canada. No explanation has
been provided as to why Mr. Sodhi would provide records relating to studies in India in response to this
request.
[17]
In
light of the evidence provided by Mr. Sodhi himself, it was reasonably open to
the officer to conclude that Mr. Sodhi had resumed his studies in Canada in the autumn of 2005. Given
that he did not have a visa allowing him to do so, the officer’s conclusion
that he must have re-entered Canada illegally was also reasonable.
Was Mr. Sodhi
Treated Unfairly?
[18]
Mr.
Sodhi also argues that he was treated unfairly by not being provided with an
opportunity to address the visa officer’s concerns as to where he had attended
school prior to a decision being made in relation to his application.
[19]
It
is well established in the jurisprudence that where a visa officer relies on
evidence received
from sources other than the applicant, the applicant must be made aware of the
information in the possession of the officer, and must be afforded an
opportunity to respond to it: see, for example, Muliadi v. Canada (Minister
of Employment and Immigration), [1986] 2 F.C. 205, 66 N.R. 8 at para. 14
(F.C.A.); Simmons v. Canada (Minister of Public Safety and Emergency
Preparedness),
2006 FC 1123, 151 A.C.W.S. (3d) 503 at para. 7. This is not, however, the
situation here.
[20]
In
this case, all of the evidence relied upon by the officer was received from Mr.
Sodhi himself. The records that he provided showed Mr. Sodhi to have been in
attendance at Algonquin College in Ottawa during the period in
question. The officer was entitled to take this evidence at face value.
[21]
At
the end of the day, the burden was on Mr. Sodhi to satisfy the officer that he
would leave Canada at the end of his
studies. This he failed to do.
Conclusion
[22]
For
these reasons, the application for judicial review is dismissed.
Certification
[23]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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