Date: 20060511
Docket: IMM-5307-05
Citation: 2006 FC 573
BETWEEN:
MANJIT SINGH TOOR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of an Immigration Officer at the respondent's New Delhi High Commission (the officer) dated July 28, 2005, wherein the officer refused the applicant's application for a temporary residence visa.
[2] Manjit Singh Toor (the applicant) had been communicating with the Business Immigration and Investment Branch with regard to applying for permanent residence under the Manitoba Provincial Nominee Program.
[3] On June 30, 2005, the Business Immigration and Investment Branch sent the applicant a letter directing that he obtain a visitor visa in order to enable him to attend an interview in Canada.
[4] On July 28, 2005, for this purpose, the applicant applied for a temporary resident visa.
[5] On the same date, the application was refused.
* * * * * * * *
[6] The relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the IRPA) are as follows:
| 3. (1) The objectives of this Act with respect to immigration are
[...]
(f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces;
[...]
20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
[...]
(b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.
22. (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b) and is not inadmissible.
|
3. (1) En matière d'immigration, la présente loi a pour objet :
[...]
f) d'atteindre, par la prise de normes uniformes et l'application d'un traitement efficace, les objectifs fixés pour l'immigration par le gouvernement fédéral après consultation des provinces;
[...]
20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver :
[...]
b) pour devenir un résident temporaire, qu'il détient les visa ou autres documents requis par règlement et aura quitté le Canada à la fin de la période de séjour autorisée.
22. (1) Devient résident temporaire l'étranger dont l'agent constate qu'il a demandé ce statut, s'est déchargé des obligations prévues à l'alinéa 20(1)b) et n'est pas interdit de territoire.
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[7] The relevant provision of the Immigration and Refugee Protection Regulations, SOR/2002-227, reads:
| 179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national
(a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class;
(b) will leave Canada by the end of the period authorized for their stay under Division 2;
(c) holds a passport or other document that they may use to enter the country that issued it or another country;
(d) meets the requirements applicable to that class;
(e) is not inadmissible; and
(f) meets the requirements of section 30.
|
179. L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis :
a) l'étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants;
b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2;
c) il est titulaire d'un passeport ou autre document qui lui permet d'entrer dans le pays qui l'a délivré ou dans un autre pays;
d) il se conforme aux exigences applicables à cette catégorie;
e) il n'est pas interdit de territoire;
f) il satisfait aux exigences prévues à l'article 30.
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[8] Subsection 81(1) of the Federal Court Rules, 1998, SOR/98-106, states:
| 81. (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included.
|
81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s'ils sont présentés à l'appui d'une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l'appui.
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* * * * * * * *
[9] Ultimately, not being satisfied as to the bona fides of the application, the officer refused it for the following reasons:
I have reviewed all documents on file.
While I have noted the LTR from the province of Manitoba it appears that funds claimed and fund on it documents do demonstrate large inconsistencies which diminish applicant's credibility as a whole. Savings claimed cannot be verified and are presented on documents which lack credibility given their unusual fonts and lack of history.
Furthermore, applicant has no previous travel, only previous refusals from USAand New Zealand.
As a result, I am not satisfied that applicant meets requirements of a bona fides visitor.
Case refused.
* * * * * * * *
[10] The applicant submits that the fact that he had been invited to an interview by a provincial government gives some credibility to the application. In light of the facts, the applicant submits that it would have been proper for the decision-maker to give the applicant an opportunity to reply to his concerns, especially when it seems, at least initially, that the applicant potentially qualified for the Manitoba Program.
[11] The applicant further argues that while a quick refusal is administratively easier for the overseas visa post, it is contrary to Canada's overall immigration policy, particularly paragraph 3(1)(f) of the IRPA which is "to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces".
[12] However, the requirements for obtaining a temporary resident visa are set out in section 179 of the Immigration and Refugee Protection Regulations. A person is granted temporary resident status if the officer is satisfied that his/her stay in Canada is going to be temporary.
[13] The issuance of a temporary visa is a discretionary decision. The duty of an officer is to accord proper consideration to any application, but the officer is not required to issue a temporary visa unless the officer is satisfied the applicant fulfils the legislative requirements (De La Cruz v. Minister of Employment and Immigration (1989), 26 F.T.R. 285).
[14] In my opinion, the decision and the Computer Assisted Immigration Processing System (CAIPS) notes make it clear that the officer considered the applicant's circumstances and his evidence, including all of the material filed by the applicant, but which failed to adequately demonstrate that his stay in Canada was for a temporary purpose.
[15] The Department of Citizenship and Immigration Canada has prepared Guidelines on processing temporary resident applications. An officer is charged with determining whether an applicant's ties to his/her home country are sufficiently strong to ensure that he/she is motivated to return home after the visit to Canada. In the case at bar, the applicant failed to demonstrate with sufficient evidence that this was the case.
[16] In particular, as noted by the officer, the applicant presented no evidence of previous travels, only prior visa refusals from two other countries. He presented poor and inconsistent evidence of any financial stability that would motivate him to return to India following a visit to Canada.
[17] Previous jurisprudence indicates that the failure of a visa officer to bring to the attention of the applicant adverse conclusions that he or she may be drawing from documents submitted by the applicant does not amount to a reviewable error. As Justice Pelletier wrote in Poon v. Canada (M.C.I.), [2000] F.C.J. No. 1993 (T.D.) (QL):
[12] The obligation to confront an applicant with adverse conclusions applies when the conclusions arise from material not known to the applicant. Where the issue arises out of material provided by the applicant, there is no obligation to provide an opportunity for explanation since the provider of the material is taken to know of the contents of the material.
[18] It is therefore my opinion that there was no breach of procedural fairness in the case at bar.
[19] To the extent that the appreciation of the facts made by the officer is concerned, I am not satisfied, upon hearing counsel for the parties and reviewing the relevant evidence, that the officer's decision is based on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the material before the officer (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). In my opinion, it was open to the officer to doubt that the applicant was seeking to enter Canada for a temporary purpose and that he would leave Canada by the end of the period.
[20] For all the above reasons, the application for judicial review is dismissed.
"Yvon Pinard"
Ottawa, Ontario
May 11, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5307-05
STYLE OF CAUSE: MANJIT SINGH TOOR v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 1, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: May 11, 2006
APPEARANCES:
Ms. Wennie Lee FOR THE APPLICANT
Ms. Marina Stefanovic FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lee & Company FOR THE APPLICANT
Barristers & Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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