Docket: IMM-393-16
Citation:
2016 FC 947
Ottawa, Ontario, August 18, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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CHARVEY ZERNA
AGUILAR
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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]
Ms. Aguilar’s application for a study permit was
refused by a visa officer in Manila who provided her with a form letter
checking boxes which read:
You have not satisfied me that you would
leave Canada at the end of your stay. In reaching this decision, I have
considered several factors, including:
Employment prospects in country of residence
Current employment situation
[2]
The visa officer’s notes to file explain,
somewhat, the basis for the officer’s decision. In relevant part, the notes
read:
Subj she had been employed as caregiver
since May 2011 but did not provide evidence of employment, income or personal
savings.
[3]
Although the officer had other concerns, the
lack of this information appears to have been the most significant factor in
the negative decision.
[4]
I find that the decision fails to fall within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law:” Dunsmuir v New Brunswick,
2008 SCC 9 at para 47. The problem with the officer’s decision lies with the
facts – and specifically the employment information.
[5]
The officer filed an affidavit in this
application in which he attests that the Applicant “did
not provide evidence of employment, income and personal savings.” I
note that evidence of personal savings was irrelevant as the Applicant’s aunt
and uncle had provided evidence that they were paying her tuition and providing
financial support to her when in Canada.
[6]
Counsel for the Respondent conceded that the
officer’s statement must have been based on the officer’s notes from the time
the decision was made, because, as was candidly acknowledged, the Certified
Tribunal Record [CTR] contains none of the information filed with the
application. It contains only the paper application itself and a list of
documents supplied. The file was culled by the Respondent after the decision
was made.
[7]
Because the record was culled it is not possible
to confirm or deny the officer’s statement. However, there is evidence in the
CTR that the Applicant did submit the documents; namely, the Document checklist
at page 17 of the CTR submitted with her application and which provides
instructions to “Complete and place this checklist on
top of your application.” The Applicant has a check mark opposite each
item she was required to submit, including “Letters
from your current and past employers dated within 2 months of the application
indicating: Position; earnings; years of employment.”
[8]
There is no dispute that the Applicant did
submit documents listed in all of the 11 other items she checked (even though
none are in the CTR). Why would she have checked but have failed to submit one
of the items checked? Perhaps she overlooked it, or perhaps the officer
overlooked it. On this basis alone, and given the Respondent’s action of
culling the file, I would have allowed the application.
[9]
The Applicant filed an affidavit of her aunt in
Canada who, with her husband, is paying for the Applicant’s tuition and support
while in Canada. She attests that she “is a party to
this matter and fully conversant with the facts hereinafter deposed to.” At
paragraph 7 she attests:
Contrary to the assertion by the visa
officer that she, “did not provide evidence of employment, income or personal
savings.” I am advised and verily believe that my niece submitted proof of
employment and income with her application to the Embassy. Attached herein and
marked as “Exhibit C” to this my Affidavit is a copy of her Certificate of
Employment and pay slip from Allied Home Services she submitted to the Embassy.
The referenced Exhibit is a Certificate of
Employment dated November 27, 2015 - 3 days before the application filing date
of December 1, 2015, and her pay slip for the period November 1-30 2015.
[10]
The Respondent submits that this affidavit
evidence ought not to be accepted because they were not before the
decision-maker and because the aunt fails to say who informed her of the facts
to which she attests. These were the only grounds of objection raised.
[11]
The first objection is without merit. If this
submission were accepted one could never provide evidence that a document which
the officer says he did not have was in fact before him.
[12]
The second objection has merit. The Applicant
submits that it is evident from the record and the circumstances of her being
supported in Canada by her aunt that it was she who provided the information to
her. That may be so; however, the specific objection made goes to weight, not
to admissibility.
[13]
The evidence of the checklist submitted with the
application and the weight given to the aunt’s affidavit establish on a balance
of probabilities that the “missing” documents
were provided. Accordingly, the officer’s decision must be set aside.
[14]
Because the application record was culled, the
Applicant will be given the opportunity to resubmit the documents she filed and
any new documents or information in support of her application, which shall be
determined by a different visa officer.
[15]
I repeat what I said to counsel during the
hearing – I find it irresponsible of the Respondent to cull files so quickly.
Culling ought only to happen after the time for filing of an application for
leave and judicial review has expired. This case would not likely have come
before the Court if the cull had not taken place.
[16]
No question for certification was proposed.
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