Santos v. Canada (Minister of Citizenship and Immigration), 2002 FCT 494

Date: 20020430

Docket: IMM-4990-00

Neutral citation: 2002 FCT 494

BETWEEN:

                                                         NATALIA DUQUE SANTOS

                                                                                                                                                       Applicant

                                                                                 and

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

LUTFY A.C.J.

[1]                 The visa officer's refusal to issue a student visa to the applicant, a 25-year old citizen of Colombia, must be set aside for at least three reasons.

[2]                 First, the form refusal letter is so general in its terms as to have no meaning for the applicant. The applicant was told to return to the Canadian Embassy in Bogota in the early afternoon of the same day she submitted her application for student authorization. When she returned at the appointed time, she was given an undated and unsigned refusal letter which stated [translation from Spanish]:

We regret to inform you that your student/visitor visa application has been rejected.

Currently, there is a large problem within Canada due to a great quantity of people who have received both student and visitor's visas and then do not wish to leave Canada as they had indicated. This situation makes it very difficult to make a decision in regards to your application. The visa officer who reviewed your application took into account all the documents and declarations presented as support for your application but was unable to give you the visa in accordance with the law and with present circumstances.

Please take into account that no single document can guarantee you that a visa will be issued. In each case the visa officer must be absolutely convinced that you are not a future immigrant in order to be able to issue you with a student/visitor visa, after having carefully reviewed your socio-economic situation and your general family background, as well as previous travels and the reasons for which you wish to travel to Canada.

We understand that the negative decision vis-a-vis your application will come as a great disappointment but at the same time we regret to inform you that this is a final decision.

Cordially,

The Embassy

The only specific reference to this applicant in the refusal letter was the notation of her file number.

[3]                 In Xu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1184 (T.D.), Justice Gibson described the circumstances in which a form letter could probably be used by a visa officer (at paragraph 8): "This may be contrasted with a situation where a form letter, or form paragraphs, are stored in memory and are instantly recoverable to be incorporated with other commentary, no matter how brief, which clearly reflects the tenor of an interview ..." [emphasis added].

[4]                 This principle, in my view, should apply even where the decision is made without an interview. The refusal letter should make reference, "no matter how brief", to the particular circumstances of the application which is the subject matter of the decision. The refusal letter in this proceeding is generic in its terms and devoid of any reference to the information provided by the applicant in her application. Nor does the refusal letter indicate the reason for the negative decision. The visa officer properly acknowledged during cross-examination that the refusal letter is inappropriate in its terms and has been replaced by a new standard form.

[5]                 Second, the only reason for the negative decision referred to in the CAIPS notes is insufficient funding for the applicant's Canadian studies, a finding which was made without regard to the material before the officer and one which he abandoned on cross-examination.

[6]                 The CAIPS notes were short:

TO STAY WITH SISTER AND BROTHER-IN-LAW, TO TAKE CULINARY MGNT, PD BY SISTER (20K TOTAL) FOR 2 YRS, COLFUTURO TO LOAN SOME MONEY AS WELL, LOW INCOME ON CDN FAMILY, I DON'T SEE HOW THEY'LL AFFORD 20K OVER 2 YRS. REFUSED.

In fact, the applicant's burden was to establish adequate financial resources for her first year of her course of study. The respondent concedes that the material filed by the applicant established sufficient funding for the period in question. The visa officer erred by concluding otherwise.

[7]                 Third, the respondent defended the visa officer's refusal on the basis of the last substantive statement in his affidavit:

The Applicant has no dependants in Colombia, no income, no assets and no job to return to. She has family ties in Canada. These factors, considered together with the provisions of the Immigration Act and Regulations, did not satisfy me that Ms. Duque Santos was not intending to stay in Canada illegally at the end of her studies.

[8]                 There are a number of reasons not to attach much weight to this statement in the visa officer's affidavit as the ground for his refusal. During his cross-examination, the visa officer answered that the place of residence of the applicant's family members was not "... information that I felt I required for the decision." There is no reference in the CAIPS notes, which were written when the decision was made, to family ties as a reason for the refusal. Counsel's argument that the words "present circumstances" and "general family background" in the refusal letter are an indication of the visa officer's concern for the applicant's non-return to Colombia is not convincing. The visa officer included in his affidavit four paragraphs concerning insufficient funding, a position he abandoned on cross-examination. On the record before me, I am not satisfied that the applicant's family situation in Colombia and Canada was the reason for the refusal when the decision was made.

[9]                 Accordingly, this application for judicial review will be granted and the matter will be referred for redetermination by a difference immigration officer. Neither party suggested the certification of a serious question.

                                                                                                                                                    "Allan Lutfy"                         

                                                                                                                                                            A.C.J.

Ottawa, Ontario

April 30, 2002