Date: 20110428
Docket: IMM-5952-10
Citation: 2011 FC 500
Ottawa, Ontario, April 28, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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ZEFERINO JOSEPH PENA TORRES
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Mr. Pena
Torres has been an on-again, off-again, somewhat indifferent, student in Vancouver going back to 2002. He was
able to study here in virtue of a series of study permit authorizations, and
always applied for renewals from outside Canada. Last year, his applications were
refused twice over. This is the judicial review of the second refusal.
[2]
In her
refusal letter, the officer stated: “You have not satisfied me that you are an
intending temporary resident to Canada
as defined by Canada’s Immigration and Refugee
Protection Act.”
[3]
The
tribunal record includes Computer Assisted Immigration Processing System (CAIPS)
Notes. It is well-established that these Notes form part of the reasons for
decision.
[4]
The visa
officer considered that different members of Mr. Pena Torres’ family have
visited or reside in Canada, and in a draft of the
refusal letter she said: “Based on your academic performance you are not a bona
fide student.”
[5]
The visa
officer also signed an affidavit in which she said she based her decision on
the information on file, which included Mr. Pena Torres’ past academic history
and his family members’ history in Canada.
[6]
I find the
decision to be both capricious and procedurally unfair.
[7]
While not
an academic star, Mr. Pena Torres’ marks improved as time went by. His study
permit applications had been accepted while his marks were poor. It appears
illogical to characterize his academic performance as “poor” in the
circumstances.
[8]
As to his
family members, his younger brother is here, and has been here, on a study
permit and his mother has accompanied him on a visitor’s visa as she acts as
his guardian. There is no indication whatsoever that either has run afoul of
the immigration authorities.
[9]
The record
indicates that Mr. Pena Torres’ sister, and her husband, have applied for
refugee status. That is the “irregularity” listed. There is no indication in
the file as to the basis of the refugee claim.
[10]
In his
application, Mr. Pena Torres indicated that his sister was in Canada, and studying. There is no
evidence whatsoever to indicate that he was personally aware that his sister
had filed a refugee claim, which may or may not be bona fide.
[11]
Although
the cases I am about to mention can be distinguished, in the ensemble the
underlying principles expressed therein lead to the conclusion that judicial
review should be granted.
[12]
In Mancia
v Canada (Minister of Citizenship and Immigration), [1998] 3 FC 461, [1998]
FCJ No 565 (QL) (FCA), it was held that if a federal tribunal is to rely on
extrinsic evidence an opportunity must be given to the applicant to respond
thereto. The sister’s immigration record appears to be extrinsic.
[13]
In Canada (Minister of Citizenship and
Immigration) v Thanabalasingham, 2004 FCA 4, [2004] 3 FCR 572, the Court of Appeal was
dealing with 30-day detention reviews. Mr. Justice Rothstein, as he then was,
held that at subsequent reviews the Immigration Division must give clear and
compelling reasons for departing from previous decisions.
[14]
In Siddiqui
v Canada (Minister of Citizenship and Immigration), 2007 FC 6, [2007] FCJ
No 9 (QL), Mr. Justice Phelan was reviewing a decision of the Immigration and
Refugee Board which held that they were reasonable grounds to believe that a
particular group to which Mr. Siddiqui belonged was engaged in acts of
terrorism. This was a factual finding contrary to decisions of earlier board
members based on the same evidentiary record. It was held that the decision
breached the principles of fairness in that the decision did not address the
contrary earlier findings. This undermines the integrity of board decisions and
gives an aura of arbitrariness. I would say capriciousness.
[15]
What is
different here is that Mr. Pena Torres had interrupted his studies to assist
his grandfather who was ill. The plan is that he will be taking over the
management of his grandfather’s hotel. The other differences are that his last
marks were better than the ones submitted with earlier study applications,
which had been approved, and his sister’s immigration history, which I consider
to be extrinsic evidence.
[16]
The
judicial review of the second decision will be granted. The matter will be
referred back to another visa officer for re-determination in light of these
reasons.
[17]
At the
close of hearing, I stated I intended to grant the application. I gave the
Minister a delay in which to pose a serious question of general importance
which could support an appeal. He replied that there was no such question as
the decision is fact specific. I agree.
ORDER
FOR REASONS GIVEN;
THIS COURT ORDERS that:
1.
The
application for judicial review is granted.
2.
The matter
is referred back to another visa officer for re-determination.
3.
There is
no serious question of general importance to certify.
“Sean Harrington”
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