Date: 20100223
Docket: IMM-2760-09
Citation: 2010 FC 210
Ottawa, Ontario, February 23, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ZAVIN
BOUGHUS
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the negative decision of a visa officer (Officer), dated May 10, 2009
(Decision), which refused the Applicant’s application for a temporary resident
visa to Canada.
BACKGROUND
[2]
The
Applicant originally came to Canada on his mother’s application as a dependent
and became a permanent resident in June, 1992. Despite his permanent resident
status, the Applicant continued his employment overseas.
[3]
In
September, 1996, an inquiry was held to determine if the Applicant was still a
permanent resident because of the amount of time he had spent outside of
Canada. The inquiry found that he was still a permanent resident because he
maintained his intention to reside in Canada, as demonstrated by his
applying for a returning Resident Permit.
[4]
However,
the Applicant was found inadmissible to Canada upon his
attempted return in July, 1999. At this time, an officer wrote a report against
the Applicant indicating that he had not met the terms of his residency
obligations. The Applicant returned to Syria prior to an inquiry being held
with regard to his status in Canada.
[5]
The
Applicant’s mother became sick in 2004. The Applicant sought a Temporary
Resident Visa (TRV) to visit her in Canada.
[6]
Between
May, 2004 and April, 2009 the Applicant applied for a TRV on five occasions.
Each application was refused. While making these applications, the Applicant
was unaware that he retained permanent resident status and, as a result, was ineligible
for a TRV.
[7]
In
February, 2009, the Applicant was made aware of the questionable status of his
permanent residency. The Applicant then signed a voluntary relinquishment of
permanent resident status.
[8]
The
Applicant was advised that he could reapply for a visitor’s visa after signing a
waiver of appeal with regard to his relinquishment of permanent resident status.
DECISION UNDER REVIEW
[9]
The Applicant’s
application was refused because the Officer was not satisfied that the
Applicant would leave Canada at the end of his stay. The grounds for this
finding included :
a) His travel history;
b) His immigration status;
c) His family ties in Canada compared to those of his
country of residence; and
d) The purpose of his
visit.
[10]
The
Officer’s CAIPS notes (Notes) revealed that the purpose of the Applicant’s trip
was to “go to Cda for a three week visit to see his brother and I presume his
mother who also resides in Cda.” The Officer noted that neither the Applicant
nor his sponsors had a lack of funds. However, the Notes indicated that the
Applicant’s previous travel had been limited and he had no ties in his home country.
[11]
In
support of his application, the Applicant provided proof of his finances,
letters of support with regard to his mother’s illness, and a letter of leave
from his employer.
[12]
Nonetheless,
the Officer determined that there was “limited reason” for the Applicant to
return to Syria since he is single,
unmarried and has no children. The Notes state that “the issue here is one of
bona fides and the intent of the applnt to return to his home country or
country of citizenship.”
[13]
The
Officer felt “there was little reason for this former Immigrant (who lost his
status) to return to either Syria or Kuwait.” As a result, the Officer concluded that the
Applicant had not demonstrated he would leave Canada at the end of his stay and refused the
Applicant’s application.
ISSUES
[14]
The
Applicant submits the following issues on this application:
1.
Did
the Officer err by failing to consider all of the evidence provided by the
Applicant?
2.
Did
the Officer err in refusing to interview the Applicant with respect to his
application for a TRV?
3.
Did
the Officer err by failing to consider the goal of family reunification?
4.
Did
the Officer fetter his discretion with respect to evidence of the Applicant’s
intention to return to Syria?
STATUTORY PROVISIONS
[15]
The
following provision of the Act is applicable in these proceedings:
|
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 may be issued if, following an examination, the officer is
satisfied that the foreign national is not inadmissible and meets the
requirements of this Act.
If sponsor does not meet requirements
(2) The officer may not issue a visa or other document to a foreign
national whose sponsor does not meet the sponsorship requirements of this
Act.
|
11. (1) L’étranger doit,
préalablement à son entrée au Canada, demander à l’agent les visa et autres
documents requis par règlement. L’agent peut les délivrer sur preuve, à la
suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se
conforme à la présente loi.
Cas de la demande parrainée
(2) Ils ne peuvent être délivrés à l’étranger dont le répondant ne
se conforme pas aux exigences applicables au parrainage.
|
[16]
The
following provision of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations) is also applicable in these proceedings:
|
179.
An officer shall issue a temporary resident visa to a foreign national if,
following an examination, it is established that the foreign national
(a) has applied in
accordance with these Regulations for a temporary resident visa as a member
of the visitor, worker or student class;
(b) will leave
Canada by the end of the period authorized for their stay under Division 2;
(c) holds a passport
or other document that they may use to enter the country that issued it or
another country;
(d) meets the
requirements applicable to that class;
(e) is not
inadmissible; and
(f) meets the
requirements of section 30.
|
179.
L’agent délivre un visa de résident temporaire à l’étranger si, à l’issue
d’un contrôle, les éléments suivants sont établis :
a)
l’étranger en a fait, conformément au présent règlement, la demande au titre
de la catégorie des visiteurs, des travailleurs ou des étudiants;
b)
il quittera le Canada à la fin de la période de séjour autorisée qui lui est
applicable au titre de la section 2;
c)
il est titulaire d’un passeport ou autre document qui lui permet d’entrer
dans le pays qui l’a délivré ou dans un autre pays;
d)
il se conforme aux exigences applicables à cette catégorie;
e)
il n’est pas interdit de territoire;
f)
il satisfait aux exigences prévues à l’article 30.
|
STANDARD
OF REVIEW
[17]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a consideration
of the four factors comprising the standard of review analysis.
[18]
The
issue of whether the Officer erred by failing to consider all of the
Applicant’s evidence is a fact-based question. As such, it attracts a standard
of reasonableness upon review. See Dunsmuir, above, at paragraph 51.
[19]
Similarly,
reasonableness is the appropriate standard when determining whether the Officer
erred in failing to consider the issue of family unification, since this is an
issue of fact, discretion and/or policy, as per Dunsmuir, above, at
paragraph 51.
[20]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
[21]
Whether
or not the Officer was required to interview the Applicant is an issue of procedural
fairness. Issues of procedural fairness
are reviewable on a standard of correctness. See Suresh
v. Canada (Minister
of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, and
Dunsmuir, above, at paragraph 60.
[22]
Similarly, the determination of whether the Officer fettered his
discretion is also an issue of procedural fairness which must be examined in
light of the circumstances of the case. If a breach of natural justice or
procedural fairness is found, no deference is due to the Officer. See Kathiravelu
v. Canada (Minister of Citizenship and Immigration), 2006 FC
1287, 302 F.T.R. 107 at paragraph 12.
ARGUMENTS
The Applicant
Failure to Consider all
Evidence
[23]
The
Applicant submits that the Decision was made without the consideration of his
circumstances. While the Applicant’s immigration history was available to the
Officer, so too should have been the correspondence between the Applicant and
the First Secretary with regard to the standing of the Applicant’s status.
[24]
Furthermore,
the Officer’s reasons fail to consider the Applicant’s “Voluntary
Relinquishment Form,” which was included in the package. Citizenship and
Immigration Canada’s Overseas Processing Manual OP11 (Manual) instructs visa
officers to consider all the evidence provided by an applicant in his or her
application. Also, section 9 advises officers to determine whether an applicant
intends to remain in Canada illegally, claim refugee status, or
otherwise disobey his or her admission to Canada.
[25]
The
Applicant only learned that he retained resident status in early 2009. He
subsequently relinquished this status. The Applicant’s relinquishment of
permanent residence status and his waiver of rights to appeal his loss of
status are relevant to a determination of his application. The Applicant’s
relinquishment of residence status was stated in his application.
[26]
The
Officer, however, failed to consider this important factor and found that the
Applicant had “lost” his permanent resident status. The Applicant contends that
the Officer’s failure to consider this pertinent factual information, and the
Officer’s mischaracterization of the facts, make it clear that he failed to
consider the totality of the evidence in this case. The Applicant submits that
the Officer’s obligation to consider his relinquishment is even higher where
this issue is directly relevant to the Officer’s concerns about the Applicant’s
ties to his home country.
[27]
Moreover,
the fact that the Applicant relinquished his residence is enough to rebut the
legal presumption that the Applicant is an intending immigrant.
[28]
The
Officer further erred in failing to consider the Applicant’s travel history.
This consideration is important when determining whether the Applicant would
remain in Canada illegally.
Although the record demonstrates that the Applicant has traveled frequently to Kuwait, the Officer
failed to consider this in drawing his conclusions on the facts. A similar
instance occurred in Khatoon v. Canada (Minister of
Citizenship and Immigration), 2008 FC 276, 71 Imm. L.R. (3d) 102 in
which Justice Tremblay-Lamer determined that, contrary to what the officer had
held, “a trip from Pakistan to Saudi Arabia is international travel.”
[29]
Moreover,
the Officer improperly limited his assessment to the Applicant’s immigration
history and the constitution of his family. This too is a reviewable error. See,
for example, Stanislavsky v. Canada (Minister of
Citizenship and Immigration), 2003 FC 835, 237 F.T.R. 27 at paragraph
17.
Interview
[30]
While
there is no statutory right to an interview with regard to an application for
temporary residence status, the Applicant contends that there are some
instances in which procedural fairness requires that an applicant be given the
opportunity to respond to an officer’s concerns. See, for example, the factors
considered in Ali v. Canada (Minister of Citizenship
and Immigration), 151 F.T.R. 1, [1998] F.C.J. No. 468 at paragraph 28.
Furthermore, there have been instances in which this Court has recognized a
visa officer’s obligation to provide an applicant with a chance to respond to a
serious concern. See, for example, Ogunfowora v. Canada (Minister of
Citizenship and Immigration), 2007 FC 471, 63 Imm. L.R. (3d) 157 at
paragraph 53.
[31]
The
Officer erred in failing to interview the Applicant for numerous reasons: (1) the
First Secretary had told him that an interview would be held; (2) the complicated
nature of his status; and (3) the Applicant had been called to the embassy for what
“appeared to be” an interview.
[32]
Evidence
provided by the Applicant has demonstrated his intention to return by
continuing his work overseas after having received resident status in Canada. Moreover,
the Applicant did not pursue a remedy when he learned his residence status was
in jeopardy; instead, he returned overseas and continued working for almost 10
years. When the Applicant learned that he still had permanent resident status,
he took the necessary action to relinquish his status.
[33]
Had
the Officer properly understood the basis for the Applicant’s application, and if
he still questioned the Applicant’s intentions, the Applicant should have been
permitted to respond to the Officer’s concerns. The First Secretary informed the
Applicant’s counsel that the Applicant could expect to be interviewed or, at
the very least, be seen in person, to waive his appeal rights. However, this
opportunity was never provided. As a result, the Applicant was unable to
respond to the Officer’s factual concerns or clarify the factual error upon
which the Officer’s Decision was based.
Family
Reunification
[34]
The
Applicant’s submission letter made it clear that he wanted to enter Canada to visit his
mother. Indeed, there was no need for the Officer to “presume” that this is a
reason for his visit. Rather, this was the stated purpose and primary reason
for the Applicant’s attempt to visit, which was supported by a letter from the
Applicant’s brother with details of his mother’s medical condition.
[35]
The
only mention made of the Applicant’s mother in the Decision is what the
Applicant characterizes as the Officer’s “dismissive remark” made about his
mother. Furthermore, the Decision does not consider the Applicant’s desire to
visit his mother while she is still alive.
[36]
Furthermore,
the Officer clearly failed to consider section 3 of the Act which is concerned
with family reunification. In the case of Zhang v. Canada (Minister of
Citizenship and Immigration), 2005 FC 427, 44 Imm. L.R. (3d) 272, the
Court determined that an officer erred in failing to consider paragraph 3(1)(d)
of the Act. The Court found that “the applicant stated that his application was
clearly to facilitate his reunion in Canada with his spouse and family. In my
view, this purpose is compatible with paragraph 3(1)(d) of the Act, and the
officer should have considered this factor.” Furthermore, the case of Gupta
v. Canada (Minister of
Citizenship and Immigration), 186 F.T.R. 232, 6 Imm. L.R. (3d) 127 has determined
that the Act’s goal of family reunification is broad enough to encompass the
reuniting in Canada of Canadian citizens and their close relatives from abroad.
[37]
The
Applicant’s motive for a TRV was clear: family reunification. The Applicant
wishes to see his elderly mother who is unwell and cannot travel to visit him.
The Applicant and his family have been separated for a long time. The Officer
erred in failing to consider the impact of this separation and the Applicant’s
true intentions for visiting Canada.
Fettered
Discretion
[38]
The
Officer placed an excessive amount of focus on the Applicant’s ties to his home
country to the exclusion of the other evidence and information before the Officer.
This uneven assessment is tantamount to a fettering of the Officer’s
discretion. The case of Kenig v. Canada (Minister of
Citizenship and Immigration), 158 F.T.R. 249, [1998] F.C.J. No. 1748 at
paragraph 13 held as follows:
The focus of the Visa Officer on the
applicant’s ties to Kazakhstan and his failure to
effectively take into account even all of the evidence in that regard,
essentially to the exclusion of consideration of the other evidence that was
before him, amounted to a fettering of discretion that constituted a reviewable
error.
[39]
Similarly,
in the case at hand, the Decision failed to consider all of the Applicant’s
evidence that demonstrates a genuine intent with regard to remaining in Canada
and an urgent need to visit his family. Rather, the Officer put undue emphasis
on one factor, to the exclusion of all other compelling evidence, which
resulted in a fettering of discretion.
The Respondent
Presumption
[40]
A
legal presumption exists that a foreign national seeking to enter Canada is presumed
to be seeking to immigrate. It is the Applicant’s burden to rebut this
presumption. Accordingly, anyone who applies for a TRV to enter the country
must prove that he or she is not an immigrant and will leave Canada at the end
of the authorized stay. See Danioko v. Canada (Minister of Citizenship and Immigration),
2006 FC 479, 292 F.T.R. 1; Li v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 791, 208 F.T.R. 294.
Evidence
[41]
Officers
are presumed to consider all of the evidence before them. Furthermore, they are
not required to explain why they did not accept each piece of evidence. See Florea
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598
and Ozdemir v. Canada (Minister of Citizenship
and Immigration), 2001 FCA 331, 282 N.R. 394 at paragraph 9.
[42]
When
considering a TRV, it is important to balance the requirement of fairness with
the requirements of the administrative immigration process. The Respondent
contends that this process contains “a significantly lower fairness threshold,”
which includes “a minimal requirement (if any) for reasons.” As the Court
stated in Li, above, at paragraph 50:
In balancing the factors in Baker, the
procedural requirements mandated by the duty of fairness should be relaxed for
the processing of applications for student authorizations by visa officers
overseas. Therefore, there are no grounds to argue unfairness in this process
because a visa officer did not communicate all of her concerns to the
applicant, or that she did not accord the applicant an opportunity to respond
to those concerns.
[43]
In
this case, the Officer was aware that the Applicant had previously been a
permanent resident of Canada but no longer retained this status. Although
the Applicant has argued that the Officer erred by focussing on his “loss” of
status rather than his relinquishment of status, the Respondent suggests that
this is simply a question of semantics. Moreover, the Applicant is only now
focussing on his relinquishment of status and the ramifications thereof and did
not make such submissions during his hearing. The fact that the Officer did not
interpret the Applicant’s loss of status in the way most favourable to the
Applicant does not mean the Officer erred.
[44]
The
Applicant’s file shows that the Applicant attempted to retain his status when revocation
was threatened in 1996.
[45]
The
Officer’s reasons state that the Applicant has a limited travel history. Thus,
the Applicant’s argument that his travel history was ignored is not tenable; nor
is the Applicant’s argument that his travel history is extensive. A review of
the Record and the application for the TRV demonstrates the opposite: that the
Applicant has made numerous trips to Kuwait. The Notes acknowledge
the Applicant’s trips to Kuwait.
[46]
The
Applicant has failed to prove that the Officer ignored any evidence. Rather,
the Applicant has suggested that the Officer did not interpret the evidence in a
manner more favourable to him.
[47]
The
Applicant was unable to prove that he would leave Canada at the end
of his authorized stay as required by the Act. As such, the Officer’s
conclusion was reasonable.
Interview
[48]
The
Applicant has conceded that there is no requirement in the context of a TRV for
an official to conduct an interview.
[49]
While
the Applicant has suggested that there was a refusal to interview him, at no
time did the Applicant request an interview. It is impossible for the Officer
to have refused an interview that was never requested.
[50]
The
Respondent submits that the case of Ogunfowora is distinguishable from the
case at hand. In Ogunfowora, above, at paragraph 56, the Court
found that “the applicants had no way of knowing that the officer would rely on
several factors.” In the case at hand, however, the Applicant had been refused
a TRV several times before for essentially the same reasons. As a result, the
Applicant cannot be said to have been unaware of the previous concerns of past
decision-makers. Because of his extensive experience in applying for TRVs, the
Applicant should have been aware of the onus on him to convince the Officer of
his intention not to remain in Canada. The Respondent contends that “there can
be no error in failing to interview someone who was refused a TRV for a fifth
time.”
Family
Reunification
[51]
The
Respondent submits that the Officer was clearly aware of the Applicant’s desire
to see his family. However, regardless of the Applicant’s motivation, the
Officer is obliged to comply with the legal presumption contained in the Act.
See Danioko at paragraph 15 and Li at paragraph 37.
[52]
Although
family reunification is a goal of the Act, compliance with the Act and the Regulations
is a legislative requirement. The Applicant’s motivation for visiting Canada is
a factor for consideration, but does not relieve the Applicant of his burden to
prove to the Officer his intention to leave Canada at the expiration of his visa. In the case
at hand, unlike Zhang, there was reason for the Officer to believe that
the Applicant would not leave Canada at the end of his authorized stay.
Discretion Not Fettered
[53]
The
Officer is not required to issue a visa unless the Officer is satisfied the
Applicant fulfils the legislative requirements. In this case, the Officer was
clearly not satisfied that the legislative conditions were fulfilled.
[54]
The
Manual instructs Officers not to issue a visa unless they are satisfied that an
applicant will leave the country upon its expiration. The Officer believed that
the most important factor in this case was the Applicant’s ties to Canada as
opposed to those in Syria. This led the Officer
to believe that the Applicant may not leave to country upon the expiration of a
visa.
[55]
The
Decision made by the Officer is highly discretionary, and it is not the role of
the Court to reweigh the evidence.
ANALYSIS
Failure to Consider Totality of
Evidence
[56]
In
his reasons the Officer indicates what he finds determinative. This does not
mean that other evidence was ignored. The Officer is not obliged to mention
every piece of evidence and, on these facts, the Officer clearly indicates an
awareness of the Applicant’s previous immigration history and family situation.
I do not see the reference to “loss” of status as opposed to “relinquishment”
of status as evidence of a material factual error. The Officer is merely saying
that the Applicant once had status but now does not. Nor is there evidence that
the Officer ignored the Applicant’s trips to Kuwait.
[57]
In
the end, the Applicant has not shown that the Officer ignored evidence. The
Applicant is simply disagreeing with what the Officer found determinative and
saying that he should have given other factors more weight. The Court cannot
intervene with the Decision on this basis. See Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, 212 D.L.R. (4th)
139 at paragraph 11.
Refusing to
Interview
[58]
Procedural
fairness did not require an interview in this case. The Applicant is, in
effect, saying that the Officer should have discussed his conclusions with him
and given him a chance to bolster his case to make it more persuasive.
[59]
The
Officer did not have concerns about the case before him. There was evidence
that went both ways and which had to be weighed. There is nothing to suggest
that material evidence was overlooked.
[60]
The
Applicant did not request an interview and he has a previous history of
dealings on TRV applications. He knew what was required to convince the
Officer. The fact that the Officer did not decide the application the way the
Applicant would have liked does not mean that material evidence was overlooked
or that there was a breach of procedural fairness. The Applicant was given
every opportunity in his application to provide persuasive evidence that he
would leave Canada at the end of his stay, and the Applicant provided the
evidence he wanted to adduce on this point. The fact that the Officer did not
agree with the Applicant’s position does not mean that there were concerns that
required an interview.
[61]
The
Applicant says that an interview would have given him a chance to clarify the
relinquishment issue and to sign the waiver showing he had no intention to stay
in Canada. I do not
think that either of these factors would have materially assisted the
Applicant. The wording of the Decision makes clear what the deciding factors
were, and I do not believe that the Officer, by using the word “lost,” failed
to consider the Applicant’s immigration history or failed to understand it in
any material way. The Applicant is trying to place undue emphasis on one word
that, in the context of the Decision as a whole, is not determinative in the
way he alleges.
Failure to
Consider the Goal of Family Reunification
[62]
The
task before the Officer was to decide whether the Applicant would leave Canada
at the end of his temporary stay. The Officer clearly states and considers the
family re-unification reasons put forward by the Applicant in his visa
application. There is nothing to suggest that the Officer failed to consider
family re-unification objectives in making the Decision. Once again, the
Applicant simply disagrees with the Decision.
Fettering of
Discretion
[63]
This
is simply a disagreement by the Applicant concerning the amount of weight that
the Officer placed upon certain factors. It is the Officer’s job to weigh
competing factors and reach conclusions based upon what he or she finds to be
most determinative of the issue in hand. This process does not involve a
fettering of discretion.
[64]
There
is nothing to suggest that any factor was left out of account in this process.
The Applicant simply disagrees with the Officer’s conclusions.
Conclusions
[65]
The
Applicant is obviously very disappointed by this Decision and I can well
understand why. It is clear to me that a decision in his favour would have been
reasonable, but that does not make the Officer’s Decision unreasonable. See Dunsmuir
at paragraph 47.
[66]
I
suspect that if I had been making this decision myself, I would have granted
the TRV but Parliament has given that power to visa officers, not to the
judiciary. I cannot interfere unless the Decision falls outside of the
acceptable reasonable range enunciated in Dunsmuir. I do not think it
does and I do not think there is evidence of any breach of procedural fairness.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is denied.
2.
There
is no question for certification.
“James
Russell”
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