Dockets: IMM-2759-16
IMM-2760-16
Citation:
2017 FC 61
Toronto, Ontario, January 18, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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ROGELIO LAMUG
GUILLERMO
CHRISTINE
NAIOME ALAPAY GUILLERMO
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Applicants
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicants, father and daughter, are
citizens of the Philippines. They filed to visit their respective wife and
mother of the Applicants, who is a live-in caregiver for an employer and his
well-established family.
[2]
As the Visa Officer, who assessed the Applicants’
application, was not satisfied that the Applicants would want to return to the
Philippines but rather would wish to remain in Canada with their wife and
mother respectively; and, find opportunities herein, the Visa Officer denied
the Applicants’ request.
[3]
The Applicants have submitted to the Court that
the Visa Officer’s decision was unreasonable due to the evidence presented to
the officer; they, therefore, request that the Court set aside the officer’s
decision for this application to be considered anew by a different officer.
[4]
Subsequent to a review of the file and its
evidence, the Court considers that indeed the decision of the Visa Officer is
unreasonable.
[5]
It is noted by the Court as the evidence clearly
demonstrates that the employer of the wife and mother in Canada wanted to
surprise their employee for consistent loyal service to the family; and,
therein stems the invitation for a family visit with financial support for the
visit by the employer.
[6]
In addition, the invitation was planned during
the Christmas break from school of the daughter.
[7]
It is duly noted by the Court that evidence
presented to the Visa Officer included a demonstration of ties to the
Philippines, property ownership and specific elements of attachment to their
country of citizenship.
[8]
Visits to close family members are understandable;
and, are the very reason for the granting of such temporary visas (reference is
made to Khatoon v Canada (Citizenship and Immigration), 2008 FC 276 at
paragraph 7).
[9]
A visa for such purposes is not to be summarily
dismissed. Although reasons for a decision may be most succinct, they must
nevertheless be reasonable as per the Supreme Court’s reasoning in respect of
its standard of review reiterated in Dunsmuir v New Brunswick, [2008] 1
S C R 190 [Dunsmuir]. As stated by Justice Michael L. Phelan in Nabin
v Canada (Minister of Citizenship and Immigration), 2008 FC 200 at
paragraph 7 and 8:
[7] The case law in this Court is
consistent; the burden of establishing entitlement to a visa rests on an
applicant. This burden includes the responsibility to produce all relevant
information which may assist the application. There is no general requirement
that visa officers engage in a form of dialogue as to the completeness or
adequacy of materials filed.
[8] The exception to the absence of any
obligation on a visa officer to give notice of concerns about filed materials
is where there are concerns about the credibility, accuracy or genuineness of the
information submitted or extrinsic evidence arises with respect to that
information (see Olorunshola v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1056 (CanLII), paras. 30-37).
[10]
Thus reasons, although brief, by an immigration
officer, must nevertheless be transparent and intelligible, in respect of the
facts and the law to be reasonable as handed down by the Supreme Court, both in
Dunsmuir and Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 at paragraph 14.
[11]
Therefore, due to all of the above, the decision
is unreasonable; as a result, the judicial review is granted. The matter is to
be returned to a different visa officer for consideration anew.
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