Date:
20121025
Docket:
IMM-2197-12
Citation:
2012 FC 1242
Ottawa, Ontario,
October 25, 2012
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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PARIVASH MANSOURI
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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
I. INTRODUCTION
[1]
The
Applicant asks for judicial review of a decision by an Immigration Officer
refusing to reconsider the points allocated to the “Relative in Canada” element
on her skilled worker’s visa application. The essence of the problem is that
the Applicant was short four points which would otherwise qualify her for her
visa. Five points would have been awarded if the Visa Officer had accepted the
Applicant’s evidence that she had a brother in Canada.
II. BACKGROUND
[2]
The
Applicant, a citizen of Iran, applied for her visa. In her application she gave
details of her brother residing in Canada. There is an issue as to whether
there were supporting documents filed with the application.
[3]
The
Visa Officer awarded her 63 of the necessary 67 points required for a visa and
awarded no points in respect of a relative in Canada on the grounds that there
were no substantiating documents regarding the Applicant’s brother.
[4]
An
immigration consultant assisted the Applicant in her visa filing. Within three
days of the negative decision, the consultant requested reconsideration of the
decision and submitted the documents verifying the place of residence of the
Applicant’s brother using a copy of his passport, pay stubs, car insurance and
telephone bills as evidence of residency.
[5]
The
Visa Officer refused the reconsideration in the following terse terms:
I have reviewed your client’s application and
I am satisfied that it was processed in a procedurally and administratively
fair manner and that there are no grounds to re-open the application.
[Emphasis in the
original decision]
III. ANALYSIS
[6]
In
Kurukkal v Canada (Minister of Citizenship and Immigration), 2010 FCA
230, 2010 CarswellNat 3298, the Federal Court of Appeal confirmed that in
appropriate circumstances an administrative decision-maker has the discretion
to reconsider his or her decision.
[7]
In
Grigaliunas v Canada (Minister of Citizenship and Immigration), 2012 FC
87, 2012 CarswellNat 306, this Court applied the reasonableness standard of
review to the decision to reconsider. It was noted that there is no obligation
to reconsider and that a visa officer’s decision is entitled to deference. I
accept those comments as a generally accurate reflection of the standard of
review.
[8]
However,
I find the obiter of Justice Zinn in Marr v Canada (Minister of Citizenship and Immigration), 2011 FC 367, 2011 CarswellNat 949 at
paragraph 57, compelling. There, the learned judge said that on the basis of
fairness and common sense, a visa officer should reconsider a file if, within
days of a negative decision, new evidence that confirms a material fact is
presented.
[9]
The
Visa Officer essentially concluded that because she had been fair, there were
no grounds to re-open. That comment suggests that she would only re-open if she
concluded that she had been unfair – generally an unlikely acknowledgement. The
Visa Officer saw her discretion too narrowly.
[10]
A
visa officer should not shy away from common sense and practicality – they are
often components of fairness and reasonableness. There may be good reason,
including (but in no way limited to) fairness to more diligent applicants or
efficiency and effectiveness of the system which could be relevant in deciding
not to reconsider an original decision but none were stated here.
[11]
A
visa officer need not write a treatise on fairness to justify a refusal to
re-open but here the Visa Officer viewed her discretion to be too narrow.
[12]
In
finding for the Applicant, I add that it was a close call. The Applicant (or
her consultant) did not assist her cause by first suggesting the initial
details were sufficient, then suggesting that the documents had been filed
originally, and then suggesting that they had been misled because the
requirement for details was new (such that had they known, the documents would
have been filed originally).
[13]
Regrettably,
the time spent including judicial time and the expense incurred on both sides
dwarfs the time and effort to re-open and decide on the adequacy of the
documents filed immediately after the negative decision. At least going to
Court and receiving the Order to be issued is likely to be faster for the
Applicant than going to the back of the queue to start the visa process again.
IV. CONCLUSION
[14]
Therefore,
the Court will grant the judicial review and remit the matter to a different
officer who will accept the original points awarded and will consider the
evidence of the “Relative in Canada” component in assessing the final points to
be awarded.
[15]
There
is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted and the matter is to be remitted to a different officer who is to
accept the original points awarded and is to consider the evidence of the
“Relative in Canada” component in assessing the final points to be awarded.
“Michael L. Phelan”
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