Issue 43 Vol II, July 15, 2007

L A W  &  J U S T I C E

What if Visitor Visa for Canada is Refused?

Getting visitors’ visa for Canada besides being a hazardous taste is quite a muddle some also.  What if you apply complying with all the requirements given in the checklist, provided to you along with the form, appending all the supporting documents, your application is rejected and you are given a preprinted letter with certain objection tick marked. Senior advocate and commentator on public affairs Joginder Singh Toor who is currently in Toronto discusses in detail the plight of persons seeking visitors’ visa and the draconian Canadian laws.

The visa officer could trick anyone of these;
“You have not satisfied me that you would leave Canada at the end of your stay as a temporary resident”
“Your family ties in Canada and your country of residence”
“Your personal assets and financial status, your purpose of visit”
“Your travel history”, “you are a member of an inadmissible class”
“Your host has no sufficient funds et al.”
The visa officer would also tick mark “you have not satisfied me that you meet the requirement of regulation 179; that you will leave Canada at the end of the temporary period of your stay.”

The note at the end will read “The application is closed and the decision is FINAL.”  No appeal lies against it.  A new application is considered if the situation has changed or new information is given satisfying the visa officer other wise.

What if the new application is also rejected?  Not once or twice but four times like that of Ms. Pannaben Shashi Vadan Patel. She was introduced by her aunt in Canada, to a Canadian citizen Mr. Uttam Bhai Patel who married her in India,  they lived together for a month, she was sponsored by the husband who, withdrew the sponsorship before it matured, rather applied for divorce in Canada.  Ms Patel applied for visitor visa to contest the divorce proceeding in Canada was refused visa four times. The divorce proceeding ended against her. She moved the Canadian Human Rights Commission.  Her application was dismissed, the purpose having become moot. She moved the Federal Court for a judicial review. The Federal Court Act empowers the Federal Court to issue prerogative writs in exercise of powers vested in it under section 18, like powers exercised by high courts in India under Article 226 of the constitution of India; to set aside administrative order passed by tribunals and officers.

        Two legal questions of wide importance emanated:

1. Could the application be filed by the person who sponsored the visitor?

2. Was he or she an aggrieved person instead of the person whose application was rejected?

3. Was it discrimination on the basis of social status? The Federal Court’s decisions is of vital importance which has observed as follows:

“The expressed purpose of the Immigration Act of reuniting close relatives does not aim to benefit only the immigration applicant. It is as much a benefit to the assisting or sponsoring relative to be re-united with family from their home country in their new country, Canada. Any act or omission which impedes the ability of an assisting relative to take a role in the application process infringes on the rights and benefits accorded to the assisting relative under the Immigration Act. If the act or omission is found to be discrimination, the assisting relative in Canada would be as much the victim as the applicant.”

“Thus, even in the case of the denial of visitors’ visas, it is by no means impossible that the complainants in Canada who were seeking to be visited by relatives from abroad should not themselves be victims of discriminatory practices directed against such relatives. A simple example will illustrate the point: could it seriously be argued that a Canadian citizen who required a visit from a sibling for the purposes of obtaining a lifesaving organ transplant was not victimized by the refusal, on prohibited grounds, of a visitor’s visa to that sibling.

“Furthermore, the motivations of the visa officers are completely irrelevant to the investigation (Ontario Human Rights Commission v. Simpsons Sears, [1985] 2 S.C.R. 536, and Symes v. Canada, [1993] 4 S.C.R. 695), as is their understanding of Indian culture and society.  By focusing on these irrelevant considerations, the investigator failed to assess properly whether the refusals of Ms. Patel’s applications for visitor visas were discriminatory.”
Regulations179 of the Immigration and Refugee Protection Act empowers an officer to issue a temporary resident visa a foreign national if he/she
a)    Has applied in accordance with regulation
b)    Will leave Canada by the end of the period authorized
c)    Holds a passport or their document authorizing entry
d)    Meets the requirement applicable to that class
e)    Is not inadmissible
f)     Meets the requirements of section 30
The Regulation 179 does not provide any guidelines for the visa officer. The rejection order contains a printed column that “In arriving at my conclusion that you don’t meet the requirement of regulation 179, I have considered the following facts and again printed columns are tick marked such as “Your travel history, your links in Canada and India, You will not return etc”. The quasi-judicial authority exercising administrative statutory powers are supposed to exercise their discretion judicially and not arbitrarily.

The Supreme Court of Canada considered the whole issue in Baker vs. Canada (Minister of Citizenship and Immigration) as to the scope of powers of visa officer in deciding the application and powers of Federal Court in Judicial Review. In this case the woman with Canadian born children was ordered to be deported. She applied for stay in Canada in the interest of Canadian born children, which was rejected. The Federal Court dismissed the review application but recommended a question of law to be determined by the Supreme Court of Canada to the obligation of the federal immigration authorities to take into consideration children’s best interests’ in accordance with international conventions even if Canadian immigration have no corresponding provisions.

The Supreme Court of Canada held that “the duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3)  the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself.”

“Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker. This duty applies to all immigration officers who play a role in the making of decisions. Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference.

The Supreme Court also held that it is appropriate in certain circumstances, including when the decision has important significance for the individual , or where there is statutory right of appeal, the duty of procedural fairness would require a written explanation /reasons  for a decision.

Rejection of  application for visitors’ visa even on mass scale  without giving written explanation, ignoring the documents , but just tick marking a prior printed sterio typed order  has given rise to  apprehension in many minds  that the law laid down by the highest court of  Canada is not  being meticulously followed.

Jogindersigh_toor@yahoo.com

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