Date: 20081103
Docket: IMM-2951-07
Citation: 2008
FC 1225
Calgary, Alberta, November 3, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
HOI
TRONG DAO and DUNG NGOC NGUYEN
Applicants
and
THE
MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application challenges a decision of a Visa Officer who refused each of
the Applicants’ application for a multiple entry visa to Canada from Viet Nam. At the time the applications were made
the Applicants’ two sons were in Canada
on Temporary Resident Visas and the Applicants wished to visit their eldest son
who was ill.
[2]
The
substance of the Visa Officer’s decision of May 22, 2007 reads as follows:
Both sons in CDa appear to have
history of MOCs and AFLs in Cda. Youngest son is on his 2nd
relnship after sponsorship was withdrawn in 1st one. Sprship just
received on his 2nd relnship. Eldest son divorced shortly after
gaining PR status.
AM not satisfied that these
applicants are credible and am not satisfied that they are bona fide temp
residents.
However, there is a possible
medical situation with eldest son. Will call and advise that one of them will
be allowed to go visit son on a TRP. They can choose which parent goes. Then
pay TRP fee and photo submission.
(Tribunal Record,
p. 2)
[3]
Counsel
for the Applicants argues that the decision is made in reviewable error because
it does not comply with Citizenship and Immigration Canada’s guidelines dated
February 24, 2006 for rendering a decision on a Temporary Resident Visa
application (OP11). The critical elements of OP11 relied upon to
substantiate this argument are as follows:
5. Departmental Policy
5.10
Canadian Human Rights Act and temporary resident examinations
[…]
Officers should document their
decision in their case notes, ensuring that the applicant was assessed as an
individual.
14.
Procedure: Refusals
[…]
Officers should ensure that case
notes in CAIPS are complete and accurate. They should:
·
outline the circumstances of the application;
·
outline the process followed in coming to or making the decision;
·
note the presence and identity of an interpreter, if applicable;
·
take into account any representations made by interested persons
(or counsel) and make note of the nature and content of these representations;
and
·
detail the reasons for the refusal. [Emphasis added]
I agree with this argument.
[4]
It is
apparent from the substance of the decision as quoted above that a grave
suspicion about the conduct of the applicants’ sons lead to a negative credibility
finding with respect to the applicants, which in turn, led to a rejection of
their applications. I find that, to be fair the Applicants and to comply with OP
11, it was necessary for the Visa Officer to specifically state the
evidentiary link between the suspicion of the sons and the bona fides of
the Applicants. The Visa Officer failed to document this required
decision-making step, and as a result, I find that the negative credibility
finding is made in reviewable error because it is unsupported by the evidence.
[5]
While it
is true that, for humanitarian and compassionate reasons, the Visa Officer was
prepared to grant a visa to one of the Applicants, this fact does not cleanse
the decision under review from manifest reviewable error.
ORDER
THIS COURT ORDERS that:
Accordingly, I set aside the decision under
review and refer the matter back for redetermination by a different visa
officer on the evidence which exists at the time of the redetermination.
There is no question to certify.
“Douglas
R. Campbell”
Email this Content