by Sukhram Ramkissoon

Every year tens of thousands of foreign nationals who have close family ties or friends in Canada, submit visitor visa applications.  A visitor visa is also known as a Temporary Resident Visa (TRV)which allows persons to enter Canada for a vacation or other reasons. Not all countries require their citizens to obtain a visa to enter Canada, however they may be subject to an Electronic Travel Authorization (e-TA).

If a TRV is required, all applicants must satisfy the visa officer that their stay in Canada will be temporary.  According to the Immigration and Refugee Protection Act (IRPA), an officer shall issue a TRV to a foreign national if, following an examination, it is established that the foreign national:

• has applied in accordance with the law for a temporary residence visa as a member of the visitor, worker, or student class
• will leave Canada by the end of the period authorized for their stay

IRPA also allows visa officers to reject applications on suspicion that an applicant might try to stay in Canada beyond their temporary stay. When an application is rejected, no detailed reasons need to be given, and the applicant is notified by a simple “form letter” with a check mark stating the supposed grounds for refusal.

There are no appeal rights to challenge the negative decision, however, an applicant has the right to seek judicial review in the Federal Court of Canada.

Let us look at a recent positive Federal Court decision, which was given on behalf of a Guyanese family regarding a TRV refusal.

For the purposes of this article, I will refer to the mother of the household as the “Applicant” and her accompanying daughter as the “Daughter.”  They are both citizens of Guyana and they applied for a TRV, which was refused on the basis that they would not leave Canada at the end of their stay and the decision focused on the Applicant’s circumstances.

The Applicant applied to visit her boyfriend, who is the father of her daughter.  She wanted to visit Canada for one week and was going to stay in Niagara Falls, Ontario. The Applicant’s boyfriend is a permanent resident of Canada. The Applicant and her daughter applied on two previous occasions, and these applications were denied.

In refusing their application, the officer noted

• not satisfied with strong pull factor to Canada
• Applicant has demonstrated sufficient ties to Guyana to compel their return
• Applicant has travelled to the United States in the past and remained 6 months demonstrating an ability to remain outside of Guyana

The Officer’s refusal letter stated they were not satisfied the Applicant would leave Canada at the end of the proposed stay based on:

• travel history
• family ties in Canada and in the country of residence
• purpose of the visit
• current employment situation
• personal assets and financial status.

In the Federal Court of Canada judicial review, the judge analyzed the case law and relevant facts, stating that “while there is a presumption that a decision maker has reviewed all the evidence, it is a rebuttable presumption – especially in circumstances of cursory or conclusionary reasons. The reasons need not be extensive but there must be a rationale or a line to the rationale.”

The learned judge also stated, in summary:

• The Officer seems to have found that the Applicant was prepared to abandon her job in Guyana, her widowed father, and her friends in favour of her Canadian resident boyfriend
• The Officer does not explain why she reached that conclusion. The refusal letter cites conclusions without explaining the reasons. Simply stating that the Applicant’s travel history or her current employment or the purpose of the visit led to the conclusion without explaining why those circumstances led to the conclusion is not sufficient
• It is not obvious why the Applicant’s travel history, which shows no overstays or immigration difficulties, would lead to a negative conclusion. The same can be said for each of the factors listed in the refusal letter
• There is no necessary rational connection between the Officer’s conclusions and the notes and refusal letter.

For the above reasons, the judge granted the application, emphasizing that the officer should have issued the TRV. In their decision, it was found that the Applicant is entitled to file a new TRV application, which is not to be decided by either the officer on this file or any of the officers who denied previous TRV applications. In addition, the previous denials are not to be considered relevant to any subsequent TRV filed by the Applicant.

Good luck to the Applicant and her daughter.

SUKHRAM RAMKISSOON is a member of ICCRC and specialises in Immigration Matters at No. 3069 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789   5756.