We recently had three separate temporary resident visa refusals that illuminate the banality of indifference through which overseas visa offices routinely refuse visa applications. The differences between the applications and the similarities in the refusals illuminates the problems overseas applicants face when applying to come to Canada:
(1) Our client invested as a majority shareholder in a Canadian company. He was a longtime business owner who was going to own and operate the business as he had expertise in the businesses' subject matter and the Canadian partners were essentially silent partners in the business. Bank accounts were provided showing the applicant had a high level of savings, traveled to Europe regularly on a Schengen visa always returning to his home country, and the business was incorporated, had leased space and invested in fixed assets for the business to get off the ground in Canada. The application was refused because the Officer was unconvinced the Applicant could withdraw funds from his overseas bank account to fund the Canadian venture. We are now challenging the decision in Federal Court;
(2) Our client applied for a temporary resident visa to visit her boyfriend in Canada five months ago. The processing times for visas from that processing centre is 23 days. We followed up with the Visa Office monthly for four months. We did not receive a response. Finally, based on our client's instructions we demanded, to the Program Manager, that a decision be made on the application by September 5, 2017. Our demand occurred yesterday. Today, we received a negative decision which does not accord with the evidence before the Officer. For instance, the Officer indicated purpose of travel to be an issue. Purpose of travel was provided. The Applicant was coming to Canada with a return ticket to visit her boyfriend. This explanation and evidence was disregarded or not believed. If the latter was the case then procedural fairness would have demanded the Officer present this concern to the Applicant and allow a chance for reply prior to a refusal. This did not happen. Very likely this refusal will be challenged to the Federal Court as well;
(3) Our client applied for a study permit several months ago to study in the upcoming Fall semester in Canada. He had traveled to Canada before and returned to his home country. He owned property in his home country. He had traveled to other Western countries and always returned. The application was refused on the basis that the Applicant had taken a semester off school three years ago. We have been instructed to challenge this refusal to Federal Court as well as the refusal did not link the earlier break from school with any analysis as to why the Applicant was not a genuine student at this point.
There is of course an inherent in how visa applications are treated from certain countries rather than others. And of course we are not advocating for a system where every application is approved. There are stronger and weaker applications. More suspicious versus more credible applications. That being said, the above three examples are instructive. The decisions are arbitrary, not tied to any evidence relating to temporary intent, and evidence a capriciousness to the decision making that is infuriating for practitioners and applicants alike. The point we want to make is that it should be just as infuriating to Canadian taxpayers. Most of these decisions are made by locally engaged staff in the the relevant visa offices who are not Canadian citizens or permanent residents. They are of course paid by Canadian taxpayers. The challenges to the Federal Court will be paid for, in terms of Department of Justice costs, judges salaries and court time, by Canadian taxpayers.
So to summarize, Canadian taxpayers are supporting locally engaged staff, to make bizarre, incoherent and incorrect decisions which then cost Canadian taxpayers more money to defend. This is the definition of waste.
A modest proposal to reform the system:
-Cut back on locally engaged staff who are making these decisions. They are unnecessary when almost all temporary resident visa applications are filed online;
-Move all decisions to a central processing centre in Canada to support Canadian jobs;
-Provide the centre objective and binding criteria to allow or refuse temporary resident visa applications. The criteria can be kept internal to avoid individuals concocting evidence to meet the criteria. If an applicant meets the requisite number of criteria then allow the visa. If they do not meet the number, refuse the visa. The system demands some level of certainty and consistency. The current legislation and guidelines is simply too malleable allowing an Officer to "justify" any decision only to have the application returned back when the deficiencies of their decision is exposed in a costly, for client and taxpayer, Federal Court process;
-For a refused visa application, have dedicated regional senior officers whose specific remit is to review refused applications based on the criteria. If the criteria is met and the Officer erred, these senior officers can simply issue the visa. If not then they refuse it and the Applicant takes their much reduced chances at Federal Court.
The insanity of the current system has been allowed for too long. Reason and common sense should take root otherwise the Applicants, their families, the Courts and the taxpayer all lose. The only winner in the current system: lawyers, who are tasked with challenging these deficient decisions at a high cost and with a high success rate. We don't want the lawyers to win, do we?
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