Date: 20091117
Docket: IMM-2176-09
Citation: 2009 FC 1176
Montréal, Quebec, November 17, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
GRACIELA SERRUDO
SEMPERTEGUI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Immediately
following the hearing I said that I would grant judicial review and outlined
the reasons. Here they are in a somewhat expanded form.
[2]
Ms.
Sempertegui is a Bolivian national. She is in her twenties, unmarried and has no
children, factors which played a role in the visa officer’s decision to refuse
to issue a temporary resident visa to allow her to take French courses in
Montréal.
[3]
Some seven
or eight years ago, she was befriended by a Canadian woman who was in Bolivia on an educational assignment.
In late 2006 that woman’s brother and his wife needed live-in assistance for
their three young children. Ms. Sempertegui was contacted and applied in early
2007 to come to Canada as a live-in caregiver. Her
application for a work permit was refused because she was short of the one-year
related work requirement set out in the regulations.
[4]
This
problem was overcome by the fall of 2008 and so a second application for a work
permit was filed. In that instance she was rejected because she failed the
language test, in her case French.
[5]
This
judicial review arises from a third application by Ms. Sempertegui, this time
an application for a student permit in order to study French, with the admitted
long term goal that if she is successful she will reapply for a work permit as
a live-in caregiver.
[6]
The visa
officer gave two reasons for her refusal. First, she was not satisfied that the
applicant had the financial wherewithal and, second, she was not satisfied that
Ms. Sempertegui would leave Canada once her temporary resident
visa expired. These two reasons were canvassed in considerable detail by the
parties at the application for leave stage. It was only after leave was granted
when the officer was required to produce the tribunal record that she realized
that she had made a mistake. Apparently, there is a template which sets out five
reasons why such an application may be refused. The visa officer only intended
to give one reason, that being that she was not satisfied that Ms. Sempertegui would
leave Canada on the expiry of her study
permit. If nothing else, this shows a lack of attention to detail.
[7]
Indeed,
the officer’s notes suggest that there may have been another reason. The
officer was suspicious that Ms. Sempertegui would work here illegally while she
was taking her French courses. Since the template also has an “other reasons”
box, one must wonder if it was the officer’s intention to list illegal work as
an additional reason for refusing to issue a visa.
[8]
Other than
the fact that Ms. Sempertegui is a single woman in her 20s, no other reason was
given to fuel the suspicion that she would not leave when her visa expired.
While she may well have a dual intention, s. 22(2) of the Immigration and
Refugee Protection Act specifically provides that that is no reason to
reject an application.
[9]
It is true
that the burden is upon the applicant to satisfy the officer, but there are
some officers who simply will not be satisfied, no matter what. Ms. Sempertegui
has a widowed father and two sisters living in Bolivia. No mention was made of that in the
CAIPS notes. The visa officer’s suspicions were not based on reasonable
inferences drawn from the known facts, and so the decision is unreasonable.
[10]
Her ties
to Bolivia were not plumbed. Nor was the
fact that it has been amply demonstrated that Ms. Sempertegui, along with her sponsors,
play by the rules. There is no objective basis for the decision.
ORDER
THIS COURT ORDERS that:
1. The judicial review is
granted.
2. The matter is referred back to
a new officer for redetermination.
3. There is no serious question
of general importance to certify.
“Sean Harrington”
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