You Omit Information at your Peril

Flickr photo by kcolwell

It is important that applications be as thorough as possible in their applications.  The Federal Court has consistently said that the onus is on visa applicants have one shot to put their best foot forward.

In Owusu v Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal put the principle differently, but in a way that is just as clear.  It stated that applicants have the onus of establishing the facts on which their claim rests, and that they omit pertinent information from their written submissions at their peril.

Gonzalez Vazquez v. Canada (Citizenship and Immigration) is a perfect example of how important that it is to be as thorough as possible.  There, an applicant wanted to convey in an Application to Immigrate to Canada for Humanitarian & Compassionate Considerations how detrimental removal would have been to her children.  To this effect, she had the child’s teacher write a letter.  The letter stated that:

[T]he same value is not placed on “safe and caring” schools, and children are often in danger of being harassed by others, or having their belongings stolen.  Would their children be a target?  It seems likely, since they have only known Canadian culture, and barely speak Spanish.

The immigration officer in rejecting the application considered this statement in the context in which it was made; the context that their inability to communicate in Spanish was likely to lead to harassment and their being targeted.  The officer read it as an anti-bullying argument. Apparently, the applicant had wanted to convey that the language issue would have an adverse impact on the childrens’ ability to have proper access to and reasonable success at school.  However, the letter did not clearly state this.

As the Federal Court noted, the applicants failed to raise the possible impact the children’s language deficiency in Spanish might have on their schooling and thus the officer was not required to consider it.  The Court also stated

Perhaps this was an oversight by the applicants or their counsel, or perhaps it was not mentioned because their fluency in Spanish is not as lacking as the one teacher believes.  In any event, the officer had to render a decision on the basis of the submissions and evidence placed before her by the applicants.

Applicants are entitled to rely on the submissions made by applicants and need not explore other possible issues that were not clearly and directly raised by them in their applications.  The message to individuals submitting applications is clear: be as thorough and concise as possible.

It is also important to note that applicants should not invite immigration officers to conduct further investigations by providing the contact information of potential references.  In Hui v. Canada, 2011 FC 1098, an applicant had presented to an immigration officer a list of numerous character references, and invited the officer to contact them.  He did not provide any actual reference letters to accompany the contact information.  Justice Barnes stated:

It was Mr. Hui’s obligation to present the strongest possible corroborating evidence.  Instead of marshalling meaningful evidence, he attempted to shift the evidentiary burden to the Visa Officer to conduct further enquiries.  Although it was perhaps not the most prudent statement for the Visa Officer to discount in advance the reliability of the sources Mr. Hui had identified, the fact remains that Mr. Hui had the obligation to produce that evidence.  He had no legal right to impose an investigative burden on the Visa Officer and the Visa Officer cannot be faulted for declining Mr. Hui’s invitation.

A fettering argument might have arisen if Mr. Hui had produced any significant corroborating evidence which was then rejected in a perfunctory way.

 

 


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