Docket: IMM-208-15
Citation:
2015 FC 1210
Ottawa, Ontario, October 26, 2015
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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MOHINDER SINGH
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review under
s.72 (1) of the Immigration and Refugee Protection Act [IRPA] of a
decision by an officer of Citizenship and Immigration Canada [CIC] at the High
Commission of Canada in New Delhi, India, rejecting an application for a
Temporary Resident Visa [TRV].
I.
Facts
[2]
Mr. Mohinder Singh is a citizen of India, where
he lives with his wife and son. He is a business owner.
[3]
In June 2014, he applied for a TRV to visit
Canada for one month to attend his niece’s son’s Dastar Bandi ceremony. Dastar
Bandi is the Sikh ceremony in which the first turban is tied on by an elder
relation or another Sikh elder.
[4]
This trip held special significance to the applicant,
as he had acted as the principal father figure in his niece’s life since the
death of her father when she was eight years old. He had not seen his niece or
her family since they had moved to Canada seven or eight years prior.
[5]
Mr. Singh’s application was denied. His niece
and her husband decided to postpone the ceremony. The applicant reapplied, and
was once again denied a visa on June 23, 2014. The applicant brought an
application for judicial review of that decision. The case was discontinued
when the Minister consented to have the file re-examined on October 2, 2014.
[6]
On November 26, 2014, the applicant’s TRV was
refused for a third time. The officer rejected the visa application on the
grounds that he was not satisfied that the applicant would leave Canada at the
end of his visit and that he was not satisfied that the applicant had
sufficient funds to carry out his stated purpose in going to Canada and to
maintain himself in Canada and effect his departure.
[7]
The officer’s main concern related to the applicant’s
assets. The officer found that the applicant’s revenue hovered between $4,000
CAD and $5,000 CAD in the past three years and that one of his business accounts
had a negative balance, while the other had a low balance. He concluded that
the applicant did not have the financial means to support his family in India
and take care of his expenses in Canada.
II.
Issues
[8]
This matter raises the following issues:
1.
Did the officer err in failing to consider
relevant material?
2.
Did the officer violate the rules of procedural
fairness by not giving the applicant an opportunity to address his concerns
regarding his application?
III.
Analysis
[9]
The applicant submits that that the CIC officer
failed to consider relevant material in assessing the visa application. First,
the officer noted that it was not clear as to whether the ceremony had passed.
However, the submission letter clearly indicated that it had been postponed to
an undetermined date. The officer also failed to consider the applicant’s
assets. Moreover, it was a mistake for the officer to dismiss the accountant’s
report as self-serving as all documents favourable to an applicant would be
self-serving (Taborda v Canada (Minister of Citizenship and Immigration),
2013 FC 957. I agree with the applicant for the following reasons.
[10]
Together, ss. 20(1)(b) of IRPA and s.179
of the Immigration and Refugee Protection Regulations, SOR/2002-227
impose one main obligation on a foreign national seeking to enter Canada: to
establish, on a balance of probabilities, that they will leave Canada at the
end of the authorized period. If this is established to the satisfaction of the
visa officer, then he shall issue a TRV.
[11]
Although the visa officer also indicates the
purpose of the visit and the lack of travel history as reasons for denying the applicant’s
TRV, it is clear that his main concern resides in the applicant’s financial
situation. In arriving at his conclusion, the officer refers to the applicant’s
business his Income Tax Returns from 2011-2014, his bank accounts for his
business and the establishment of his family in Canada. He also notes the
report on the applicant’s total assets/net worth, but gives it little weight
because it is self-serving and the information is not verifiable. The officer
does not take into account the personal bank account of the applicant, which
clearly indicates significant personal savings.
[12]
Jurisprudence has repeatedly informed CIC
officers that they may not disregard evidence or give it a low probative value
merely because the evidence is found to be self-serving (LOTM v Canada
(Minister of Citizenship & Immigration),2013 FC 957, at para.27-29,
citing SMD v Canada (Minister of Citizenship & Immigration), 2010 FC
319, Ugalde v Canada (Minister of Public Safety & Emergency
Preparedness), 2011 FC 458, and Ahmed v Canada (Minister of Citizenship
& Immigration), 2004 FC 226). An applicant will necessarily produce
evidence that is beneficial to their case. In all the cases cited by the respondent
to refute this point, there were significant other reasons to dismiss the
evidence. In the case at bar, the officer simply notes that it is “self-serving and unverifiable” without further
explanation.
[13]
I find the characterization of the report as “unverifiable” problematic. The report was prepared by
a reliable, independent third party, a firm of chartered accountants, which
stamped and initialed each page. It appears that the information contained
within the report had in fact been verified by various government officials in
India. The officer had no reason to doubt the legitimacy of the information,
and erred in dismissing the report.
[14]
This error is compounded by the absence of
reference to the applicant’s personal bank statements. The applicant’s personal
bank account statement lists a balance of 2 512 743, 06 rupees, which converts
to approximately $50,707.15 CAD (Bank of Canada Currency Converter,
22-09-2015). This squarely contradicts the officer’s assertions that the applicant
does not have enough money to travel to Canada for one month and still support
a family of three in India. It is therefore my opinion that the officer made a
finding regarding the applicant’s finances without regard to the material at
hand.
[15]
Further, the officer was concerned that the
purpose for the visit had passed, and that the applicant had no prior travel
history outside India. However, in Agidi v Canada (Minister of Citizenship
and Immigration, 2013 FC 691, a (compelling) reason to visit Canada is not
required in order to issue a TRV. The purpose of the visit is one of several
factors that will be considered by the officer in reaching its decision.
[16]
As to the travel history, the officer does not
indicate in his reasons as to why this brings a negative inference that the applicant
will not leave Canada at the end of his authorized stay. However, in Lacchar
v Canada (Minister of Citizenship & Immigration) (January 9, 2012),
IMM-3042-11(F.C.) the Court found that a lack of travel history as a
negative factor was unreasonable. While previous travel history may be a good
indicator as to the likelihood of compliance to immigration laws, an absence of
travel is at best a neutral indicator (Momi v Canada (Minister of
Citizenship & Immigration) 2013 FC 162.
[17]
I find that the officer erred in failing to
consider relevant material, and made erroneous finding of facts with regards to
the applicant’s financial ties to India. These errors are sufficient to
determine the outcome of this judicial review.
[18]
Consequently, the application for judicial
review is allowed and the matter is referred back for redetermination before a
differently constituted panel in accordance with these reasons.
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