Nwokocha v. Canada (Citizenship and Immigration), 2007 FC 404

Date: 20070417

Docket: IMM-2617-06

Citation: 2007 FC 404

Toronto, Ontario, April 17, 2007

PRESENT:     The Honourable Mr. Justice Hughes

BETWEEN:

SOMTO FRANCES NWOKOCHA

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               This is an Application by a Nigerian adult who was refused a visa to enter Canada ostensibly for the purpose of attending a one year course in human resources offered by a Community College in Toronto.

[2]               The reasons offered by the visa officer for refusal are cryptic, two boxes were checked off on a form letter sent to the applicant indicating that the officer was not satisfied that the applicant would leave Canada at the end of the authorized period for the stay and that the officer was not satisfied that the applicant was a bona fide student.  The CAIPS notes provided state:

“not satisfied that PA is a genuine student.  Doubt intentions and doubt return to Nigeria.  Refused.  PA has a Bachelor Degree for 3 years and now wished to take a 1 year Diploma Program.  Just looking for a way out of Nigeria.”

[3]               Applicant’s counsel argues that the applicant was not afforded an opportunity to be advised as the concerns that the visa offer may have had and to address these concerns in some way.  Applicant’s counsel cites Jang v. Canada (MCI) 2001 F.C.A. 312 at para.13 for the proposition that a visa officer must advise an applicant of a negative assessment and provide a fair opportunity of correcting or contradicting it before making the required decision.  In that case, concerns had been raised by medical professionals retained by the government as to the health condition of at least one of the applicants.  This is different from the case at present in that the government in Jang had itself obtained evidence concerning the applicants.  Here we are presented with a situation where all that has been done is an assessment by a visa officer of materials presented only by the applicant the government did not generate evidence of its own.

[4]               The law respecting the situation here is set out in such cases as Dhillon v. Canada (MCI), [1998] F.C.J. No. 574 where Justice Rothstein, as he then was, said at paragraph 3. 

The applicant says that the visa officer had an obligation to interview the applicant or at least give the applicant an opportunity to clarify the evidence about her experience so that the applicant might then have convinced the visa officer that the experience she did have was relevant to the occupation of domestic cook.  However, persons seeking to come into Canada have the burden of proving their application and must produce the relevant information which may assist that application.  See for example:  Harjariwala v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d).  However, there is no obligation that is imposed upon visa officers by law to do so.  There was no duty on the visa officer to give the applicant a further opportunity to clarify or explain the evidence that had been submitted.

[5]               The rationale for such provisions is stated in Khan v. Canada (MCI), 2001 F.C.A. 345 by Evans, J.A. for the Court at paragraph 32.

Finally, when setting the content of the duty of fairness appropriate for the determination of visa applications, the Court must guard against imposing a level of procedural formality that, given the volume of applications that visa officers are required to process, would unduly encumber efficient administration.  The public interest in containing administrative costs and in not hindering expeditious decision-making must be weighed against the benefits of participation in the process by the person directly affected.

[6]               Here the applicant has, on the material presented by her, failed to persuade the visa officer.  The applicant is not precluded from submitting a new application in which the concerns of the officer could be addressed.  For instance, the applicant could state unequivocally that she will leave Canada once her one year course of study is complete.  It would be more appropriate for a fresh application to be filed than to order a review of the old application that may simply be confined to the old record.

[7]               Therefore, the application will be dismissed without costs.  No party requested certification of a question and none will be certified.

ORDER

            For the reasons given,

THIS COURT ORDERS that:

1. The application is dismissed.
2. No question is certified.
3. No Order as to costs.

“Roger T. Hughes”

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-2617-06

STYLE OF CAUSE:                          SOMTO FRANCES NWOKOCHA v.

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      April 16, 2007

REASONS FOR ORDER

AND ORDER:                                   HUGHES J.

DATED:                                             April 17, 2007

APPEARANCES:

Simeon A. Oyelade                                                                  FOR THE APPLICANT

David Cranton                                                                          FOR THE RESPONDENT

SOLICITORS OF RECORD:

Simeon A. Oyelade

Barrister & Solicitor                                                                  FOR THE APPLICANT

Toronto, Ontario

John H. Sims, Q.C.

Deputy Attorney General of Canada                                         FOR THE RESPONDENT

Toronto, Ontario