Date: 19990226
Docket: IMM-4808-98
BETWEEN:
SRISUDA MONTATONG
Applicant
- and -
MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] This is an application for judicial review of a decision of a visa officer, dated
August 28, 1998, wherein the applicant"s application for a visitor"s visa was denied. The evidence given to the visa officer by the applicant in support of her application was clear, detailed, and apparently forthright. From it, the following facts were accepted.
[2] The applicant is a 40 year old Thai woman from Bangkok. She applied for a visitor"s visa for a one month period for the purpose of coming to Canada to visit Mr. Mangalji, her married boyfriend. The applicant met Mr. Mangalji approximately seven years ago when she was working as a restaurant manager. Mr. Mangalji frequented the restaurant and a relationship developed. He told the applicant to quit her job and that he would support her, as his mistress, which he has continued to do to the present day. Mr. Mangalji travelled on business quite frequently and, if he was not in Thailand, he would often have the applicant accompany him on his travels. Because of his age and health, Mr. Mangalji is no longer willing to travel frequently to Thailand. Still wishing to see the applicant, he has invited her to come to Canada to visit him.
[3] As her reasons for denying the applicant a visitor's visa, the visa officer in her affidavit says this:
| 4. ...At the interview, she advised me that she was unmarried with no children and unemployed. The Applicant further advised that she operates a small laundry service out of her home which earns her approximately 6,000 Thai Baht ($240 CDN) per month. Her Canadian boyfriend, Mr. Sadru Mangalji had been supporting her, emotionally and financially, for the past seven years. He sends her 50,000 Baht ($2,000 CDN) per month for her family"s upkeep. The applicant asserted that her relationship with Mr. Mangalji was comparable to husband and wife when he visited Thailand, and they have travelled together as a couple to various countries in the past. She claimed that her boyfriend was no longer willing to travel frequently to Thailand because of his age and health. It was his wish that she go to Canada. While in Canada she would stay in a hotel near Mr. Mangalji"s house, which he shares with his wife and children, and entertain him when he could get away to visit her. |
. . .
| 6. In assessing the application it was noted that the relationship between the Applicant and Mr. Mangalji would appear to be very strong. Mr. Mangalji resides in Canada with his wife and family and has indicated to the Applicant that he doesn't wish to travel abroad frequently in the future. The Applicant is mature and childless, thus her emotional tie to Mr. Mangalji would appear to be the strongest tie that she has. If he is resident in Canada, it would seem logical that the Applicant would be highly motivated to stay near him. The Applicant is completely financially dependent on Mr. Mangalji. She has no job skills nor does she have the educational background that would enable her to obtain an income comparable to the support she now obtains from Mr. Mangalji should that income somehow be jeopardized. Furthermore, the Applicant is not well established in Thailand. She has no job or career to offer her incentive to return to Thailand. Mr. Mangalji offered to provide assistant [sic] to the Applicant during her stay in Canada and guarantee her eventual return to Thailand. While this is very generous, the Immigration Act does not make any provision for third party guarantees that the visitor will leave Canada once the visit has ended. |
| [Emphasis added] |
[4] Within these reasons I find a reviewable error. The uncontradicted evidence of the applicant is that she only wishes to visit Mr. Mangalji. The visa officer's finding that "it would seem logical that the applicant would be highly motivated to stay near him" is not merely an inference drawn on the evidence; it is pure speculation.
[5] A second reviewable error arises from the affidavit of the applicant as compared to that of the visa officer. In her affidavit, the applicant states that:
| 9. The visa officer stated that my status is different from Mr. Mangalji, he is married and I no longer have a working occupation. She (visa officer whose name I do not know), says she would not wish to blame anyone, and notwithstanding my solid financial position, I could not go to Canada as I might want to break up his family. As well, she stated her concern as to how I would make a living if I wanted to go to Canada and she rejected my application for a visitor visa application #V 980800672. [Emphasis added] |
[6] It is important to note that the applicant's affidavit was first considered by the visa officer in the preparation of her own affidavit. No mention is made in the visa officer's affidavit of the statement just quoted. I find, therefore, that the applicant's statement is uncontradicted and must be accepted. As a result, I find that, in reaching her decision to deny the visitor's visa, the visa officer, because of her disapproval of the relationship between the applicant and Mr. Mangalji, acted upon an irrelevant consideration, which is a reviewable error.
[7] Accordingly, the decision of the visa officer is set aside and the matter is referred to another visa officer for reconsideration.
[8] As the applicant is successful in her application, I award her costs on the basis of Tariff B, Column III, unless a consent is reached on some other basis.
"Douglas Campbell"
Judge
Winnipeg, Manitoba
February 26, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4808-98
STYLE OF CAUSE: Srisuda Montatong v. Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 26, 1999
REASONS FOR ORDER
OF THE COURT: The Honourable Mr. Justice Campbell
DATED: February 26, 1999
APPEARANCES
Mr. Edward Rice for the Applicant
Ms. Tracey Harwood-Jones for the Respondent
Dept. of Justice
301 - 310 Broadway
Winnipeg, Manitoba
R3C 0S6
SOLICITORS OF RECORD
Mr. Edward Rice
Barrister & Solicitor
70 Arthur Street
Winnipeg, Manitoba
R3B 1G7
for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent
Date: 19990226
Docket: IMM-4808-98
BETWEEN:
SRISUDA MONTATONG
Applicant
- and -
MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
Heard at Winnipeg, Manitoba, on February 26, 1999.
Order delivered at Winnipeg, Manitoba on February 26, 1999.
REASONS FOR ORDER BY: CAMPBELL J.