Digests

Novak v. Canada (Minister of Citizenship and Immigration)

IMM-445-03

2004 FC 243, Mactavish J.

17/2/04

12 pp.

Applicant 14 years old when arriving in Canada from Ukraine on student visa in 1997--Came to study at Yeshiva Reishis Chachma, part of Torah Research Academy in Toronto--Student authorization inadvertently allowed to expire on August 31, 2001--In January 2003, more than 15 months after filing application to have student authorization reinstated, applicant learning request refused--Now seeking judicial review of refusal decision, alleging unidentified visa officer erred in law in way in which reinstatement request handled--No indication in file refusal decision ever communicated to applicant--(1) Clear reasons for decisions made in relation to visa applications must be provided to applicants--Failure to state proper reasons for rejection of visa application violation of procedural fairness, and ground for review--Impossible to determine from records of Citizenship and Immigration Canada (CIC) how many decisions made with respect to reinstatement request herein, when decisions made and by whom--No decision in fact made with respect to applicant's application prior to January 2003--However, in event decision made by someone on or before April 25, 2002, failure of CIC to advise applicant of decision, coupled with complete failure to provide even most rudimentary reasons for decision, meaning decision should be set aside on this basis alone--(2) Visa officer based refusal on applicant's failure to provide copy of aeroplane ticket or proof of support--Given that application form for extension of stay was completed in 2001, completely unreasonable to require aeroplane ticket be provided for trip to take place three years hence--Perverse exercise of discretion on part of visa officer to refuse applicant's reinstatement application because he did not provide copy of airline ticket--Visa officer also erred by not considering evidence with respect to applicant's financial resources--Finally Immigration and Refugee Protection Regulations, s. 182 deals expressly with applications for restoration of student authorization where such applications brought within 90 days of expiry of student's previous authorization--S. 182 states "officer shall restore status" if student meets initial requirements for stay and has not failed to comply with any other conditions imposed--Not discretionary language--Applicant complied with conditions imposed by CIC--Application allowed--Immigration and Refugee Protection Regulations, SOR/2002-227, s. 182.