Summary: The author and his firm are handling a number of cases concerning dismissed criminal charges in the Philippines (Manila Visa Office). The applicants have provided court documents and statements showing that the charges have been dismissed but the visa officers are still asking for more evidence. Some refusals are based on the requirement to provide relevant evidence and some based on the finding of inadmissibility under s.36(2)(c) despite the court documents. Some visa officers may not believe the applicant or court documents and the refusals may be based on credibility issues. The starting point is whether the applicant committed the acts in question and a dismissal of charges should be evidence of no commission. The visa officers may be asking for unreasonable levels of documentation; redress may be found at the IAD or the Federal Court depending on the facts.
We are handling a number of cases all concerning dated and dismissed criminal charges. All of these refusals are from the Philippines (Manila Visa Office).
In these cases, the applicants have provided court documents that the charges have been dismissed. Most of these incidents occurred decades ago. After the Procedural Fairness Letter, the applicants try and obtain documents pertaining to the charges. This includes court certificates that the charges have been dismissed and they have also provided their own statements as to what happened (or didn't happen).
However, the visa officer still wants more (whether or not these other documents exist or not, after the passage of decades) and the application is refused.
Some officers will never be satisfied. That is simply the way of the world.
Some of the refusals are based on section 16(1) of the Act, which requires applicants to answer truthfully and "provide all relevant evidence and documents that the officer reasonably requires."
Some refusals are based on a finding that the applicant is criminally inadmissible under s.36(2)(c) -even though there are court documents indicating the charges have been dismissed. Nevertheless, some kind of equivalency is done to a offence in Canada.
The starting point is whether the applicant committed the acts in question. Here, the fact that the charges have been dismissed should be prima facie evidence that the person did not commit the offence. An Officer can still look beyond the dismissal but would need some foundation to do so.
Perhaps the officer's complaints of "insufficiency" are in reality findings of credibility. They simply do not believe the applicant -or simply do not believe the court documents.
"Kafka" references are over done but asking for Six Sigma level documents from a Third World/developing country from a quarter century ago for an offence that may never have resulted in a finding of criminal inadmissibility (IE deemed rehabilitation) is close.
It is, also, I suppose some aspect of the principle of judicial comity. We tend to show respect to the legal systems of other countries. If a country says that an individual has committed an offense, we usually take that seriously and either extradition or immigration enforcement proceedings can be initiated. It should cut both ways however -if a country/their legal system indicates that an offence has not occurred -we should take that seriously as well.
Unless these involve a family class application, these refusals need to be challenged at the Federal Court -where I am heading in the next few minutes.
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