Date: 20061215
Docket: IMM-1906-06
Citation: 2006 FC 1507
Ottawa, Ontario, the 15th
day of December 2006
Present:
The Honourable Mr. Justice Blais
BETWEEN:
GHASSAN
AL NAHHAS
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a
decision dated February 7, 2006, by the visa officer of the Canadian
Embassy in Damascus, who refused to issue to the applicant a temporary resident
visa as a member of the worker class.
[2]
For
the following reasons, I am satisfied that the application for judicial review should
be dismissed.
RELEVANT
FACTS
[3]
Ghassan
Al Nahhas (the applicant) is a businessman and a citizen of Syria.
[4]
On
December 21, 2005, the applicant applied for a temporary resident visa as a
member of the worker class. At that time, the applicant was the president and sole
employee of L.E.N.K.E.R., a company registered in the province of Quebec in 2005.
IMPUGNED DECISION
[5]
In
a decision dated February 7, 2006, Paul Jamieson, a visa officer at the
Canadian Embassy in Syria (the visa officer), dismissed the applicant’s
application for a temporary visa because he was not satisfied that the
applicant would leave Canada at the end of the authorized period.
ISSUES
[6]
The
issues in this case are as follows:
(1) Did the visa
officer make an error in assessing the evidence which would warrant
intervention by this Court?
(2) Did the visa
officer breach his duty of fairness to the applicant?
RELEVANT STATUTORY
PROVISIONS
[7]
Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act)
|
11. (1) A
foreign national must, before entering Canada, apply to an officer for a visa
or for any other document required by the regulations. The visa or document
shall be issued if, following an examination, the officer is satisfied that
the foreign national is not inadmissible and meets the requirements of this
Act.
20. (1)
Every foreign national, other than a foreign national referred to in section
19, who seeks to enter or remain in Canada must establish,
(a) to
become a permanent resident, that they hold the visa or other document
required under the regulations and have come to Canada in order to establish
permanent residence; and
(b) to
become a temporary resident, that they hold the visa or other document
required under the regulations and will leave Canada by the end of the period authorized for their stay.
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11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
20. (1)
L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de
prouver :
a) pour devenir un résident permanent, qu’il détient les visa ou
autres documents réglementaires et vient s’y établir en permanence;
b) pour devenir un résident temporaire, qu’il détient les visa ou
autres documents requis par règlement et aura quitté le Canada à la fin de la
période de séjour autorisée.
|
STANDARD OF REVIEW
[8]
The
issuance of a temporary resident visa by a visa officer is a discretionary
decision (De La Cruz v. Canada (Minister of Citizenship and Immigration)
(1989), 26 F.T.R. 285
(F.C.T.D.)). For this reason, the courts must accord a high degree of deference
to these decisions upon judicial review (Maple Lodge Farms Ltd. v. Canada, [1982]
2 S.C.R. 2). Therefore, the standard of review applicable to findings of fact made
by a visa officer is patent unreasonableness (Zheng v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 10).
[9]
As
the Federal Court of Appeal explained in Jaworski v. Canada (A.G.),
[2000] F.C.J. No. 643, the patent unreasonableness standard is equivalent
to paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985,
c. F-7, as amended by S.C. 1990, c.-8, which provides that the Federal Court may
intervene in the case of a mistake of fact in a decision of a federal board,
commission or other tribunal only if that board, commission or tribunal based
its decision on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it.
[10]
However,
when a matter of procedural fairness is involved, it is trite law that the applicable
standard of review is correctness, because this is a question of law (Canadian
Union of Public
Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539). Accordingly, if the Court concludes that there has been a breach of
procedural fairness, the application for judicial review will be allowed.
ANALYSIS
1)
Did the visa officer make an error in assessing the evidence which would
warrant intervention by this Court?
[11]
The
visa officer refused to issue a temporary resident visa to the applicant
because he was not satisfied that the applicant would leave Canada at the end
of the period authorized for his stay, as required under paragraph 20(1)(b)
of the Act. According to the notes in the Computer Assisted Immigration
Processing System (CAIPS), the decision of the visa officer was based on the
following statements made by the applicant at his interview:
(1) The applicant
allegedly stated that he did not know when he would return to Syria and later
mentioned that he would remain in Canada for approximately five
to seven years;
(2) The applicant
allegedly planned on living in Canada with his family during this period and in
fact had applied for temporary resident visas for his wife and two children;
(3) The applicant
allegedly intended to sell his house in Syria and buy one
in Canada.
[12]
In
the affidavit submitted in support of his application for judicial review
before this Court, the applicant states having mentioned that his children were
studying in Syria and would
not accompany him to Canada and that, since he owned many properties
in Syria, he had no
intention of selling all of them. In answer to the applicant’s arguments, the
visa officer also submitted an affidavit in which he maintained the version of
the facts noted in the CAIPS.
[13]
In
addition, the applicant submits that the visa officer did not take into
consideration the fact that he had always respected the conditions of his
visitor visas in the past. In his affidavit, however, the visa officer confirms
that he considered this fact but simply did not attach decisive weight to it.
[14]
In
Oei v. Canada (Minister of Citizenship and Immigration), 2002 FCT
466, paragraph 42, Mr. Justice Paul Rouleau wrote the following:
In my view, the Court should attach greater weight to the visa
officer’s testimony about what took place during the interview, for the
following reasons. First, it is corroborated by the notes she recopied into
the CAIPS system, which make absolutely no mention of problems communicating
with the applicant, whereas there is nothing to support or confirm the
applicant’s allegations. Further, the officer’s notes were re-transcribed into
the CAIPS the day after the interview with the applicant, namely March 21,
2001, when the events were still fresh in her memory, and the applicant’s affidavit,
on the other hand, dates from August 31, 2001, over five months after the interview. In my opinion the fact that
the CAIPS notes, which corroborate the officer’s testimony, were
contemporaneous is a sufficient reason to prefer her testimony to that of the
applicant.
[15]
Also,
in Ahmed v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1203, paragraph 18, Mr. Justice
Michel Beaudry wrote the following:
Based on a review of the CAIPS
entries, which are dated the same date as the decision, as well as the evidence
from both parties, the Court finds that the Visa Officer did not breach her
duty of fairness to the applicant. Although there was no obligation to do so,
the Visa Officer did express her misgivings and invited the applicant to
provide further documentation to persuade her that his wealth was not gleaned
from illegitimate sources. Unfortunately, the applicant said he had no further
information. I attach greater weight to the Visa Officer’s affidavit about what
took place during the interview because the CAIPS entries were done the same
day and there is no mention that the applicant would have the opportunity to
submit further documentation (Oei v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 466, [2002] F.C.J. No. 600 (F.C.T.D.) (QL)).
[16]
I
have no hesitation in concluding, as my colleagues Rouleau J. and Beaudry J.
have done, that more weight should be attached to the testimony of the visa
officer concerning what happened at the interview, which is consistent with the
CAIPS notes.
[17]
Having
attentively studied the evidence that was before the visa officer when he made
his decision, as well as the reasons on which this decision was based, I cannot
conclude that he based his decision on an erroneous finding of fact that
he made in a perverse or capricious manner or without regard for the material
before him.
2) Did the visa officer
breach his duty of fairness to the applicant?
[18]
The
applicant submits as his second argument that the decision of the visa officer
was tainted with prejudice and that the visa officer was biased.
[19]
The
respondent argues that an allegation of bias is serious and must not be made
lightly. The Federal Court of Appeal stated the following in Arthur v. Canada (Attorney
General),
[2001] F.C.J. No. 1091, at paragraph 8:
. . . An allegation of bias,
especially actual and not simply apprehended bias, against a tribunal is a
serious allegation. It challenges the integrity of the tribunal and of its
members who participated in the impugned decision. It cannot be done lightly.
It cannot rest on mere suspicion, pure conjecture, insinuations or mere
impressions of an applicant or his counsel. It must be supported by material
evidence demonstrating conduct that derogates from the standard . . . .
[20]
The
applicant did not submit any evidence in support of this allegation, other than
his statement that the interview lasted only five minutes, something which the
visa officer denies in his affidavit. Accordingly, the applicant’s allegations are
insufficient to establish any breach of procedural fairness whatsoever.
[21]
For
these reasons, the application for judicial review must be dismissed.
[22]
Counsel
did not submit any question for certification.
JUDGMENT
[1] The
application for judicial review is dismissed.
[2] No question
will be certified.
“Pierre
Blais”
Certified
true translation
Michael
Palles
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