Date: 20031211
Docket: IMM-2548-03
Citation: 2003 FC 1446
Ottawa, Ontario, this 11th day of December, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
SUKHMANDER SINGH DHILLON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Sukhmander Dhillon has tried three times to obtain a visa that would allow him to visit his ailing mother in Vancouver for one month. (She suffered a stroke in 2002.) He lives in India. Each time, his application was rejected because he had failed to persuade a visa officer that he would return to India when his visa expired. On his third application, to no avail, he supplied a considerable amount of information showing the strength of his ties to India. Finally, he sought judicial review in this Court. Citing a number of problems with the way his third application was handled, he asks me to order another visa officer to review his file - for the fourth time.
[2] I find that at least one of the grounds Mr. Dhillon raised has merit and, therefore, I will grant his request. I need not consider the other arguments.
[3] The visa officer who considered Mr. Dhillon's third application said the following in his official notes:
Reviewed application. Applicant has two previous refusals. Applicant's mother, father and brother live in Canada. I am not satisfied that applicant has sufficient ties to India and that he will leave Canada at the end of his authorized stay. Application refused.
[4] Apparently, another officer had screened Mr. Dhillon's application and also made notes:
Doc's submitted by counsel. Review docs but appreas (sic) not BF [bona fide] visitor as per prev. refusals. App. is farmer. Seperated (sic). Going to see ailing mother in CDA. Parents and one brother in CDA. One sister in India. App's savings worth 66K. Sponsorship from sister (as per appln. form, App's only sister is in India and one brother in CDA). Ltr from doctor for mother's ill health. Copy of sister's proof of CDN citizenship.
[5] Obviously, Mr. Dhillon's application did receive some consideration by the Canadian High Commission in New Delhi. However, I am not satisfied that the evidence Mr. Dhillon put before the visa officer to show his ties to India was actually evaluated. None of it was referred to in the notes.
[6] Mr. Dhillon's two previous applications were turned down because a visa officer found that he had "no ties in India". Mr. Dhillon went to considerable effort to address that concern in his third application. He supplied documents showing details of his prosperous farming operation, including proof of title to his land and house, financial statements and savings records. He described his responsibility as sole care-giver to his elderly grandmother and his other family connections in India. He relayed his sister's willingness to post a significant monetary guarantee to ensure his departure at the end of his visa, along with documentation showing she had the financial resources to do so.
[7] This evidence still may not have been enough. It is not for me to say. However, the visa officer's reasons for turning Mr. Dhillon down do not mention or respond to any of the evidence of his ties to India or the likelihood of his timely return there. It must be remembered that Mr. Dhillon was addressing a very specific concern expressed to him by previous visa officers. Given that his application had been rejected twice for failure to show adequate ties to India, I believe the visa officer had a duty at least to consider and respond to the new evidence. If the evidence was still inadequate, Mr. Dhillon should have been told why.
[8] In my view, the officer either failed to consider the relevant evidence or failed to explain adequately the basis on which Mr. Dhillon's application was refused. In either case, the decision is flawed to a degree warranting the Court's intervention.
[9] This application for judicial review is allowed. Mr. Dhillon asked for his costs, but I find no special circumstances that would warrant such an award.
[10] Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed without costs;
2. Mr. Dhillon's application shall be reconsidered by a different visa officer;
3. Neither party proposed a question of general importance to certify and none is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2548-03
STYLE OF CAUSE: SUKHMANDER SINGH DHILLON v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: DECEMBER 3, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
APPEARANCES BY:
Mr. Darryl Larson FOR THE APPLICANT
Ms. Helen Park FOR THE RESPONDENT
SOLICITORS OF RECORD:
Larson Boulton Sohn Stockholder
Barrister and Solicitor
6th Floor, Princess Building, Box 26
609West Hastings Street
Vancouver, British Columbia
V6B 4W4 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT