‘People are to be judged according to their own behaviour’ -Federal court judge

Immigration Matters with: Sukhram Ramkissoon

The Temporary Resident Visa problem


People are to be judged according to their own behaviour’ -Federal court judge

All too often I hear complaints from families in Canada  that their relatives abroad cannot join them for special occasions such as seasonal festivities, weddings or funerals. Why? Because they have been denied visitors’visas.

There are, of course, a few basic requirements in order to obtain a visitor’s visa – or Temporary Resident Visa  (TRC), as it is officially called. The applicant is required to:

  1. Have a valid travel document, such as a passport;
  2. Be in good health;
  3. Have no criminal record or immigration-related adverse history;.

4   Convince an immigration officer that  the applicant has ties – such as a job, home,                   financial assets or family – in  his/her home country.

These  requirements seem simple enough.

However, a visa does not give  a person the right to enter Canada. That person must still satisfy the officer at the port of entry that the  intended purpose of coming to Canada, is the said purpose for which the visa was issued.

But why are so many denied TRCs? Are these applicants treated fairly? Unfortunately, many  whose applications were turned down, do not have the resources to seek judicial review in the Federal Court.

But let us look at a case in the Federal Court in which an application  for a TRV was refused and the decision was challenged.

Matisha (not her real name) had applied for a TRV to attend her grand daughter’s wedding in Canada. She (Matisha) filed an application together with a letter from her grandson at an overseas visa office.  Her application was refused with the standard letter of refusal that “you have not met the requirements, you would not leave Canada at the end of your stay, and your ties in your country of residence balance against factors which might motivate you to stay in Canada.

There was also a note that the host did not provide documentation to support his income and assets and the family challenged this decision in the Federal Court.

In granting the judicial review, the judge stated “that it is important to examine the scope of discretion within which the factual findings were made” and  noted that “an indication of the scope of  discretion can be found in the objectives of the Act –  “to see that families are reunited in Canada”.

There is a policy decision made by the Minister of Immigration, Refugees and Citizenship Canada to encourage visa officers to be more flexible in issuing TRVs, including multiple entry visas, to parents and grand parents, those  who wish to visit but do not intend to immigrate to Canada and also to those who have applications for permanent residence.

In  refusing to  issue the visa, the officer had stated that Matisha’s son had remained in Canada without status and that  she might be willing to do the same and  the officer was not convinced that Matisha would leave upon the expiry of her period of visit. The judge found this to be patently unreasonable.

The fact that Matisha’s son was in Canada out of status cannot be used to impute similar conduct to her.  “People are to be judged according to their own behaviour, not on that of their family members,” stated the judge.

There was also a finding of generalization in refusing the visa, which was also considered to be patently unreasonable.

Thus, the application for judicial review was granted and it was ordered that the matter be re- determined by a different visa officer.

Clearly, persons such as Matisha should not have to undergo the expensive and time-consuming exercise of seeking judicial review of visa decisions when there are positive factors in their applications  It is hoped that visa officers will be more sensitive to cultural values and use their discretion in granting positive results, especially with respect to family reunification through  visits on special occasions.

SUKHRAM RAMKISSOON is a member of ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.

Immigration Guidelines

The following are Immigration Guidelines with respect to

Temporary Resident Visas (TRVs):

When considering if a visa is warranted, officers may consider a combination of any of the following documents as evidence of ability to support an intended visit. The list is not exhaustive but demonstrates various resource documents that may be presented:

♦ bank statement(s) or deposit book(s) of applicant (and spouse) that show accumulated savings;

♦ applicant’s (and spouse’s) letter of employment or employment book, providing name of employer, applicant’s position/occupation, date employment commenced and annual earnings;

♦ host’s or family member in Canada (and spouse’s) evidence of income: previous year Revenue Canada Notice of Assessment indicating annual income; or alternately, letter from employer(s) showing position, date employment commenced and annual earnings;

♦ evidence of size of family for host or family member in Canada (to equate earnings with size of family to ensure ability to support long-term visit)