Date: 20060412

Docket: IMM-4320-05

Citation: 2006 FC 479

Ottawa, Ontario, April 12, 2006

PRESENT:  THE HONOURABLE MR. JUSTICE SHORE

 

BETWEEN:

MADY DANIOKO

Applicant

and

 

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

SHORE J.:

INTRODUCTION

[1]               The standard of review applicable to findings of fact reached by visa officers is that of patent unreasonableness.

Furthermore, section 18.1(4)(d) of the Federal Court Act provides that the Federal Court may only interfere with errors of fact made by a federal administrative tribunal where the error is made in a perverse or capricious manner or without regard for the material before it. This standard of "perverse and capricious" for questions of fact has been stated by the Federal Court of Appeal to be indistinguishable from the standard of patent unreasonableness (Jaworski v. Canada (A.G.) (May 9, 2000), No. A-508-98 (F.C.A.), at para. 72). [Emphasis added.]

Zheng v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 110 (QL).

 

NATURE OF JUDICIAL PROCEEDING

[2]               This is an Application for Leave regarding a decision of a visa officer dated June 2, 2005, by which the officer refused an application for a temporary residency visa made by Mady Danioko in order to come to Canada.

 

FACTS

[3]               For the purposes of this Application for Leave, the facts are as stated in the affidavit of the visa officer and in the notes recorded in the Computer Assisted Immigration Processing System (CAIPS).

 

[4]               On May 11, 2005, Mr. Danioko, a citizen of Mali, submitted a temporary resident visa application to the Canadian Embassy in Mali, and this application was received on May 25, 2005 at the Canadian Embassy in Ivory Coast (Affidavit of Stéphanie Pelletier, paragraph 3; Affidavit of Ketsia Dorceus, CAIPS notes; Application for Temporary Resident Visa, pages 52 to 55 of the applicant’s record).

 

[5]               In his application, Mr. Danioko mentioned that the reason for the trip was “business”, involving a meeting at Plastiques Gagnon company, located at 258 De Gaspé Street West, Saint Jean Port Joli, Quebec.

 

[6]               After having studied all the documents submitted by Mr. Danioko in support of his application, the visa officer refused the application for a temporary visa on June 2, 2005.

 

[7]               The visa officer was not convinced that Mr. Danioko met the requirements of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations). She concluded that Mr. Danioko had not shown on a balance of probabilities that he was willing and able to leave Canada at the end of the period requested in his application for a temporary visa (Affidavit of Stéphanie Pelletier, paragraphs 9 and 10; Affidavit of Ketsia Dorceus, CAIPS notes).

 

[8]               The decision of the visa officer was based on the finding to the effect that the documents submitted by Mr. Danioko in support of his application showed that he had very few financial resources. Accordingly, the visa officer concluded that Mr. Danioko had not shown he had the financial means to make the planned trip. In addition, the visa officer concluded that international business, which was the reason invoked by Mr. Danioko for his “business” visit to the Plastiques Gagnon company did not seem to her to be credible, considering the losses sustained by that company and its weak financial situation (Affidavit of Stéphanie Pelletier, paragraphs 11 to 29; Affidavit of Ketsia Dorceus, CAIPS notes).

 

ISSUE

[9]               Did the visa officer make an error in fact or in law that would warrant intervention by this Court? The pivotal issue in this case is whether the visa officer erred in exercising her discretion.

 

ANALYSIS

 

[10]           The decision rendered by the visa officer was well founded in fact and in law, and the submissions made by Mr. Danioko do not show there are serious grounds to conclude that the visa officer made a error in law or based her decision on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before her. Accordingly, the intervention of this Court would not be warranted.

 

[11]           Subsection 11(1) of the Act states the following:

 

[12]           Subsections 20(1) and 22(1) of the Act provide that any temporary resident who wishes to come to Canada as a visitor, student or worker must show that he or she will leave Canada at the end of the requested period for the stay:

 

[13]           Sections 191 and 193 of the Regulations provide as follows:

 

 

[14]           Part 9 of the Regulations lists the conditions that must be met to obtain a temporary visa:

 

 

[15]           The is a legal presumption according to which any person seeking to enter Canada is presumed to be an immigrant, and it is up to the applicant to rebut this presumption. It is therefore up to the person who applies for a temporary visa to enter Canada to prove that he or she is not an immigrant and will leave Canada at the end of the requested period (Subsection 9(1.2) of the Act; Li v. Canada (Minister of Citizenship and Immigration), 2001 FCT 791, [2001] F.C.J. No. 1144 (QL)).

 

Standard of review

 

[16]           In this case, the decision of the visa officer is an administrative decision she made in the exercise of her discretionary power. Such a discretionary decision is for the most part a question of fact. (Ayatollahi v. Canada (Minister of Citizenship and Immigration), 2003 FCT 248, [2003] F.C.J. No. 348 (QL); De la Cruz v. Canada (Minister of Employment and Immigration), 26 F.T.R. [1989] F.C.J. No. 111 (QL); Zheng, supra; Ji v. Canada (Minister of Citizenship and Immigration), 2001 FCT 786, [2001] F.C.J. No. 1136 (QL); Li, supra).

 

[17]           Because the decision to issue a temporary authorization to enter Canada is discretionary in nature, the Court must show considerable deference for such a decision in an application for judicial review (De la Cruz, supra; Ji, supra).

 

[18]           Although discretionary decisions, like any other administrative decision, must be made within the bounds of the jurisdiction conferred by the statute, courts must give considerable deference to decision-makers when reviewing that discretion and determining the scope of the decision-maker’s jurisdiction (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL); Suresh v. Canada (Minister of Citizenship and Immigration), 2002 S.C.R. 1, [2002] S.C.J. No. 3 (QL)).

 

[19]           In Baker, supra, the Supreme Court of Canada did not change the standard of review applicable to the decisions of visa officers. The appropriate standard of review for discretionary decisions of Immigration officers concerning visa applications visas is still the standard set out by the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, at pages 7 to 8 (QL):

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not [page 8] been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

 

(Also Chalaby v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 66 (QL))

 

[20]           In Zheng, supra, Mr. Justice Paul Rouleau ruled that the standard of review applicable to findings of fact made by visa officers was that of patent unreasonableness:

Furthermore, section 18.1(4)(d) of the Federal Court Act provides that the Federal Court may only interfere with errors of fact made by a federal administrative tribunal where the error is made in a perverse or capricious manner or without regard for the material before it. This standard of "perverse and capricious" for questions of fact has been stated by the Federal Court of Appeal to be indistinguishable from the standard of patent unreasonableness (Jaworski v. Canada (A.G.) (May 9, 2000), No. A-508-98 (F.C.A.), at para. 72).

 

 

[21]           In the case at bar, the visa officer was not convinced that Mr. Daniko was a genuine visitor or that he had the financial means to cover his expenses to make the planned trip to Canada.

 

[22]           Because the issuance of a visitor’s visa involved the exercise of discretion by the visa officer, the question the Court must ask in this case is whether the officer erred in exercising this discretion. In De La Cruz, supra, the Court made the following comments:

Thus, the issuance of a visitor's visa is a discretionary decision. The duty of the visa officer is to accord proper consideration to any application, but he is not required to issue a visitor's visa unless he is convinced the applicant fulfils the legislative requirements . . . .

 

Are there grounds for quashing the decision of the visa officer? An application for certiorari is not an appellate review. To succeed, the applicants must do more than establish the possibility that I might have reached a different conclusion than the visa officer. There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative decision.

 

[23]           The visa officer applied the appropriate test to determine if it was warranted to issue a temporary resident permit to Mr. Danioko. Her decision was based on the documents and facts known to her, and her decision was not patently unreasonable.

 

[24]           The visa officer did not err in concluding that Mr. Danioko was not a genuine visitor. He did not convince her that he was not an immigrant, as required under subsection 9(1.2) of the Act.

 

[25]           It was reasonable for the visa officer to reach this conclusion on the basis of the evidence that was adduced.

 

[26]           The visa officer had sufficient information to allow her to determine the primary consideration, that is, whether Mr. Danioko had a bona fide reason to visit Canada on a temporary basis.

 

[27]           On this point, the Court refers to the CAIPS notes and to the affidavit of the visa officer, which show that the evidence submitted by Mr. Danioko in support of his application for a temporary visa was considered when the decision was rendered:

 

[translation]

9.         After studying all the documents submitted by Mr. DANIOKO in support of his application, I refused to issue a temporary visa on June 2, 2005;

 

10.       Mr. DANIOKO did not convince me that he met the requirements of the Immigration and Refugee Protection Act and the Regulations. He did not convince me on a balance of probabilities that he had the means and desire to leave Canada at the end of the period requested in the application for a temporary visa;

 

11.       The documents submitted by Mr. DANIOKO showed that his financial means were very poor;

 

12.       Mr. DANIOKO did not declare any salary and did not submit any evidence of a salary;

 

13.       In paragraph 9 of the affidavit filed in support of the application for leave, Mr. DANIOKO declared that 20 employees worked for his company, EES;

 

14.       Nothing in the documents submitted by Mr. DANIOKO in support of his visa application confirmed this affirmation. In addition, the statement of revenue and expense dated December 31, 2004 submitted by Mr. DANIOKO showed that salaries and “personnel expenses” were 2,709,748 CFA francs (approximately C$6,375.88), which represents an annual salary of C$318.79 per person, or the equivalent of C$1.50 per day per person, excluding the salary of the applicant, who is the Director General and manager of EES. His salary was unknown;

 

15.       Mr. DANIOKO submitted a bank statement for “Electromecanique et énergie services SARL” from the Banque Commerciale de SAHEL S.A. showing a positive balance of 820,000 CFA francs (approximately C$2,000) on May 11, 2005. This company bank statement is not a personal account;

 

16.       Mr. DANIOKO submitted a bank statement for “Electromecanique et énergie services SARL” from the Banque de Développement du Mali S.A. showing a positive balance of 448,679 CFA francs (approximately C$1,100) on May 10, 2005. This company bank statement is not a personal account;

 

17.       Mr. DANIOKO submitted a joint bank statement in his name and in the name of his spouse, issued by the Banque Commerciale du SAHEL S.A., showing a positive balance of 4,306,033 CFA francs (a little more than C$10,000) on May 11, 2005. I noted that this bank statement covered the period from May 22, 2001 to May 9, 2005, and throughout this period of approximately four years, there were only about 75 debit/credit transactions. Credits were rare and represented the following yearly amounts: in 2001, 7,000,000 CFA francs (approximately C$16,400), in 2002, 8,848,498 CFA francs (approximately C$20,800), in 2003, 3,000,000 CFA francs (approximately C$7,000), in 2004, 3,100,000 CFA francs (approximately $7,200), in 2005, 4,300,000 CFA francs (approximately C$10,000);

 

18.       This bank statement also showed that the $10,000 in 2005 was credited in three deposits right before the application for temporary residence was made, that is, on May 4, 5 and 9, 2005, in respective amounts of 700,000 CFA francs, 2,000,000 CFA francs and 1,600,000 CFA francs. Before May 2005 and for the complete year 2005, there had been only one transaction in this personal joint account;

 

19.       Mr. DANIOKO submitted a copy of a SUMMARY OF CONTRACTS dated December 27, 2004, showing a balance of 9,583.24 euros on July 9, 2004. I noted that the following was mentioned on this document: “The information provided does not constitute a contract; it is for your information and is subject to current transactions not yet registered”. I determined that the value of this document as a guarantee of Mr. DANIOKO’s financial means was undermined by this remark, by the age of the document, and by the date of the balance mentioned (2004);

 

20.       I also noted that Mr. DANIOKO did not answer Question 5 on the IMM5257 form (Funds available for my stay in Canada);

 

21.       Mr. DANIOKO submitted financial statements for “Electromecanique et énergie services SARL.” After having studied, them I came to the conclusion that they are not reassuring, because they show that from 2002 to 2004, the company’s assets were constantly diminishing. The financial statements submitted by the applicant also showed that “Electromecanique et énergie services SARL” has been operating at a loss since 2002;

 

22.       A review of the file led me to conclude that Mr. DANIOKO’s financial resources as presented in the documentation submitted in support of his application for temporary residence did not reflect the activities of a thriving enterprise;

 

23.       The documents submitted by Mr. DANIOKO did not convince me that he had the financial means to make the planned trip;

 

24.       In paragraph 12 of his affidavit, the applicant stated he was the representative of Société PGE Éoliennes in Mali. In support of his application for a visa, Mr. DANIOKO submitted a letter dated May 3, 2005 (which was filed as Exhibit P‑6 in the applicant’s record), signed by the Director General of this company. I noted that in this letter it was mentioned that a “contract of employment” had been signed for a one-year term, from January 2005 to January 2006. I concluded this letter was only a document stating that there was a contract and that this contract had not been submitted by Mr. DANIOKO in support of his application for a visa. I concluded that this letter was not satisfactory evidence of income or of financial considerations;

 

25.       I noted that the documents concerning real estate submitted by Mr. DANIOKO in support of his application were single copies, were not certified or notarized, and contained no evidence of a tax clearance that could have shown the lots were still wholly owned by Mr. DANIOKO;

 

26.       In support of his visa application, Mr. DANIOKO submitted a letter attesting to the assumption of his living and transportation expenses by the host company Plastiques Gagnon Inc. I noted that this letter did not concern the application in question that I had to process. In fact, I noted that this letter concerned a previous application for a temporary visa made by Mr. DANIOKO on the occasion of a visit to Canada by the President of Mali. This visa application had been refused, and it was only subsequently that Mr. DANIOKO submitted an application for a temporary visa which I processed and refused on June 2, 2005;

 

27.       Therefore, I did not consider this letter in my analysis of the application for a temporary visa submitted by Mr. DANIOKO which is currently being challenged. I concluded that this letter did not establish that the costs of Mr. DANIOKO’s trip had been assumed by Plastiques Gagnon Inc. Therefore, there was no evidence to the effect that Mr. DANIOKO’s planned trip had been paid for.

 

28.       I took into consideration the family ties Mr. DANIOKO had in his country of origin, but considering the documents submitted, which showed very poor financial means, I determined these ties were insufficient to show that Mr. DANIOKO was willing and able to leave Canada at the end of the period requested in his application for a temporary visa;

 

29.       After considering all the documents submitted by Mr. DANIOKO, I reached the conclusion that international business did not seem to be a credible ground, considering the company’s losses and its poor financial condition.

 

[28]           The grounds are based on the evidence on record and are within the scope of the powers of the visa officer.

 

[29]           The visa officer did not make erroneous or irrelevant findings of fact. Mr. Danioko had to submit the documents required to convince her that he had sufficient financial resources to make the planned trip and that the purpose of his visit was credible and its duration, temporary.

 

[30]           Mr. Danioko’s weak financial means, as shown by the documentation submitted in support of his application, was a decisive factor that was taken into consideration by the visa officer. As underlined by Madam Justice Heneghan in Duong v. Canada (Minister of Citizenship and Immigration), 2003 FC 834, [2003] F.C.J. No. 1070 (QL):

Further, the Applicant's income and business assets in Vietnam were relevant factors for consideration by the Visa Officer. While a visitor's visa should not be limited to only the financially well-off, or even moderately well-off individual, in my opinion, the Applicant has not shown that the Visa Officer erred in the exercise of her discretion. His business income, while above the minimum wage level, was not enough, in combination with other factors, to satisfy the Visa Officer that he would likely return to Vietnam or other third country after his visit to Canada. There is no indication that the Visa Officer applied extraneous or irrelevant considerations in evaluating the Applicant's financial situation.

 

[31]           The visa officer took into consideration all the evidence and documents she had and did not err in exercising her discretion. Mr. Danioko had complete control over the documentation he could have submitted in support of his application. After having studied all the evidence submitted by Mr. Danioko, the visa officer was not convinced that he had met his burden of proving that he met the requirements under the Act and Regulations. (Affidavit of Stéphanie Pelletier, paragraphs 11 to 29; Affidavit of Ketsia Dorceus, CAIPS notes).

 

[32]           In Duong, supra, the Court wrote the following:

The Applicant had control of the material he submitted to the Embassy for consideration of his application. The Visa Officer was not satisfied, on the basis of that evidence, that the Applicant had met the burden of demonstrating that he met the requirements of the former Act. Contrary to the arguments of the Applicant, I see no evidence that the Visa Officer ignored the evidence before her or relied on extraneous material, or otherwise erred in the exercise of her discretion, and this application will be dismissed . . . .

 

[33]           On the basis of the CAIPS notes and the affidavit of the visa officer, it seems that she did not ignore the evidence adduced and did not render a decision without assessing that evidence. 

 

CONCLUSION

[34]           Mr. Danioko had to satisfy the visa officer that he was not a potential illegal immigrant and that he wanted to come to Canada only on a temporary basis. He did not.

 

[35]           Accordingly, there are no serious grounds on which it would be possible to grant the remedy sought by Mr. Danioko.

 

[36]           The application for leave is dismissed.

JUDGEMENT

 

THE COURT ORDERS that:

1.         The motion be dismissed;

2.         No serious question of general importance be certified.

 

“Michel M.J. Shore”

 

 

Certified true translation

Michael Palles

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-4320-05

 

STYLE OF CAUSE:                          MADY DANIOKO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      March 30, 2006

 

REASONS FOR ORDER BY:         the honourable mr. justice shore

 

DATED:                                             April 12, 2006

 

 

 

SOLICITORS OF RECORD:

 

Johnie Roger	FOR THE APPLICANT
Isabelle Brochu	FOR THE DEFENDANT

 

SOLICITORS OF RECORD:

 

JOHNIE ROGER Montréal, Quebec	FOR THE APPLICANT
JOHN H. SIMS Q.C.                                                                          POUR LA PARTIE DÉFENDERESSE Deputy Attorney General of Canada	FOR THE DEFENDANT