2009 FC 1234
December 3, 2009
Principle Established: Visa officers must be clear when using standard form letters of refusal.
The applicant has been studying in Canada as an international student between 2004 and 2006. She took a break for approximately two years and then returned to Canada in May 2008 to pursue her studies. She applied for Canadian permanent residence deeming herself eligible under the Federal Skilled Worker class of International Students who have resided in Canada for at least one year. Her application was refused because starting from May 2008, she had less than one year.
The applicant wanted to know if the requirement of one-year legal residence in Canada could be interpreted as including time spent in Canada in the past (2004-2006).
The judge believed the law to be clear in stating that the one-year residency needed to be immediately prior to the application, not before.
The second issue raised was the standard refusal letter from the Visa Office, which was confusing. The Judge opined that the unfortunate use of form letters in responding to applicants where multiple facts situations are involved could easily lead to misunderstanding. The true reason for not processing an application should not be written in such an ambiguous manner that it’s almost impossible to understand without further inquiry. That was not a proper way to proceed and was neither correct nor reasonable.
However, the case was dismissed because it failed on the question of remedy. The applicant was invited to submit
2009 FC 1312
December 23, 2009
Principle Established: Consideration should be given to the reason for a request for extension.
The applicant applied for a permanent resident visa as a federal skilled worker. He was given 90 days to provide IELTS test results. During the 90 days, the applicant was unable to secure a seat for the exam and made a request to the visa office for a 60 day extension. The Visa Office received his request for extension after the 90 days period and thereafter refused his application.
The issue is whether the visa office should have considered the request for extension of time.
The Court found that the refusal to grant an extension of time was unreasonable. The Visa Officer should have exerted his discretion to grant an extension considering the reason for the delay and that the applicant had provided proof he got registered for the next available test.
The application for judicial review was allowed and the visa officer’s decision set aside