Digests

Saito v. Canada (Minister of Citizenship and Immigration)

IMM-6742-03

2004 FC 1192, Shore J.

31/8/04

15 pp.

Judicial review of Immigration Officer's denial of visitor's visa extension--Japanese citizen arriving in Canada in 1989 on work/holiday visa--Living here in common-law relationship, has two Canadian-born children, one in third grade--Sought permanent residence from within Canada on humanitarian and compassionate (H&C) grounds but application rejected--Common-law partner, living here for 18 years, had permanent residence approved in principle but status not granted as found inadmissible--Inadmissibility decision returned for reconsideration--Applicant sought six-month visa extension pending resolution of partner's status-- (1) Whether affidavit of Program Specialist with immigration officer's notes attached as exhibit admissible--Affidavit, exhibit rejected--Affidavit deficient as affiant not author of notes--No indication as to when notes prepared--Affiant reaches legal conclusion as to what notes reveal--No place in an affidavit for such conclusion--Question whether notes should be taken as constituting officer's reasons as these notes not included in decision when first requested--No explanation for this in affidavit--Minister breached Federal Court Immigration and Refugee Protection Rules, r. 9 requiring tribunal to provide written reasons upon request or provide appropriate notice if no reasons or reasons not recorded-- Important applicant received reasons in timely manner so could launch judicial review application--Since applicant's case turning almost entirely on sufficiency of reasons, reasons needed at earliest possible date--Minister providing no reason for incorporating notes within reasons only at eleventh hour-- (2) Unnecessary to decide whether general duty to provide reasons to visitor's visa applicants as case unique--Duty to provide reasons to applicant--Content of duty of fairness flexible and can change from case to case--In instant case, importance to applicant greater than to average applicant-- Mere form letter insufficient--(3) As to whether best interests of children should have been considered, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 distinguished, as involving H&C application, not extension of a visitor's visa--Only thing officer required to consider under Immigration and Refugee Protection Regulations, s. 179 whether applicant has temporary purpose for visit; best interests of children not at issue--Unnecessary to determine whether decision, properly made, would be reasonable--Noteworthy applicant granted numerous visa extensions; repeated extensions creating expectation-- Application allowed--Federal Court Immigration and Refugee Protection Rules, SOR/93-22, rr. 1 (as am. by SOR/2002-232, s. 1), 9 (as am. idem, s. 15)--Immigration and Refugee Protection Regulations, SOR/2002-227, s. 179.