Docket:
IMM-9254-12
Citation: 2013 FC 1058
Ottawa, Ontario, October
22, 2013
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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OSAHENI ITOTA
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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 JUDGMENT AND JUDGMENT
[1]
This is the judicial review of a Visa Officer’s
decision to deny a student visa on the supposed grounds that the Applicant, a
citizen of Nigeria, was not a bona fide student. The reasons are
contained in the Foss Notes, where the Visa Officer wrote:
•
the relationship between the sponsor (an uncle)
and the Applicant was not established;
•
the sponsor’s bank statement does not reflect
income; and
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funds presented are adequate but not satisfied
that funds will be available for expenses.
[2]
The Visa Officer does note that a letter from
the sponsor’s employer was on plain paper. That letter provides the sponsor’s
income. It is unclear what the Visa Officer made of the letter or whether it
was disregarded because it was on plain paper.
[3]
This case also raised the bizarre and
unacceptable practice of the High Commission of keeping virtually none of the
documents filed for a visa application. The documents are returned to the
Applicant. In this case, the Certified Tribunal Record did not contain all the
documents upon which the decision was made. It is no excuse to say that the
documents are not in the government’s possession.
[4]
On that ground alone, the Applicant is entitled
to relief because the record on which the decision is based is not complete.
Courts are frequently required to accord deference to decision makers; they are
even obligated under Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador, 2011 SCC 62, [2011] 3 S.C.R. 708, to consider whether the record
could sustain the decision. That test becomes difficult, if not impossible, to
apply when the decision maker cannot establish the record upon which a decision
is based.
[5]
In the present case, the Applicant was able to
reproduce what was filed and the parties accepted that the Applicant’s Record
contained all the material filed with the visa office.
[6]
Having reviewed the record, it is impossible to
discern on what basis the Visa Officer concluded that the funds would not be
available for the Applicant’s expenses.
[7]
While visa officers need not write extensive
reasons for a decision, the Court must be able to determine how a particular
conclusion was reached.
[8]
The Applicant had filed all the documents which
are initially called for by the visa process. If there is an insufficiency in
the evidence, it is not clear what it was.
[9]
The Respondent’s own OP 12 recognizes that
officers have a discretion in requesting documents from students. OP 12 further
recognizes that in circumstances where there is a high risk of indigent and
non-bona fide applicants, a visa officer may require substantial history
of funds and supplementary individual or family financial and employment
documentation.
[10]
In this case, given the record, if the Visa
Officer had doubts, he or she was required on the principle of procedural
fairness to advise the Applicant of what further documents were required.
[11]
Therefore, this judicial review is granted, and
the decision is quashed. The application is to be determined by a different
officer based upon the record as supplemented at the option of the Applicant or
in response to any reasonable requirement of the deciding officer.
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