Date: 20100211
Docket: IMM-2312-09
Citation: 2010 FC 148
Quebec, Quebec, February 11,
2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
APOLONIA
ASONG ALEM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application by
Apolonia Asong Alem (the Applicant) pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27, for judicial
review of a decision dated April 17th, 2009, by the Minister’s
representative at the Canadian Embassy in Abidjan (the visa officer), denying
the Applicant’s application for temporary resident visa.
[2]
The
Applicant is a 60 year old citizen of Cameroon.
She has eight surviving children. Five live in Cameroon; one in France; one in Germany; and one in Canada.
[3]
The
Applicant is a trader and travels extensively between Cameroon and Nigeria for the purposes of her
business. In addition, in 2007, she travelled to Germany, staying there for three months.
[4]
In January
of 2009, the Applicant applied for a Canadian visitor’s visa. She wanted to be
with her daughter who, already having two young children, was having a
difficult pregnancy and asked for her help. Her application was denied.
[5]
The
Applicant reapplied for a Canadian visitor’s visa on April 14th,
2009. She submitted additional information in support of her application. That
application was denied on April 17th, 2009.
[6]
The letter
sent to the Applicant stated that in rejecting her application, the following
factors were considered: her “family ties in Canada and in [Cameroon];” the
“length of proposed stay in Canada;” the “limited employment prospects in
[Cameroon];” insufficiency of documentation submitted; the purpose of her visit
to Canada; her “travel history;” her “current employment situation;” and her
“personal assets and financial status.”
[7]
The visa
officer’s CAIPS notes indicate that he considered that the Applicant did not
have sufficient means to finance her trip to Canada; was not sufficiently established; had a
week travel history; did not have independent financial means; and did not have
sufficient grounds for returning to her country. Thus the visa officer was not
convinced that she would leave Canada at the end of her stay as a
temporary resident.
[8]
The
Applicant mainly submits that the reasons provided for the refusal of her
visitor’s visa were insufficient.
[9]
She argues
that the visa officer’s reasons are not sufficient for her to know why her
application was denied. Neither the letter sent to the Applicant nor the
officer’s CAIPS notes explain his reasoning, and in particular the way in which
the factors he claims to have considered actually led him to conclude that the
Applicant would not leave Canada at the end of her stay.
[10]
For his part, the Minister
submits that the visa officer’s reasons are adequate “and they explain clearly
and unequivocally the grounds for dismissing the application for temporary
resident visa.”
[11]
The visa officer
noted that the Applicant’s family and economic ties with Cameroon were insufficient to ensure her return and that the Applicant
has little travel history, and was entitled to rely on these facts. In
addition, he noted that the money in the Applicant’s bank account had been
deposited two weeks before she applied for a visa. He also noted that the
Applicant did not have a steady employment, and was entitled to consider
this factor. Finally, he was of the view that the Applicant’s family’s low
income was insufficient to establish that she would be able to assume all
expenses related to her three-month stay in Canada.
[12]
The Minister adds
that, contrary to the Applicant’s submissions, the visa officer did
explain his findings and took the relevant evidence into account. He insists
that the duty to provide reasons for a rejection of a temporary resident visa
is limited, and that the visa officer discharged it because the reasons he
provided make clear the grounds on which the Applicant’s application was
denied. I disagree for the following reasons.
[13]
While the Minister
rightly points out that the requirements of procedural fairness in the context
of applications for a temporary resident’s visa are limited, the reasons given
by a visa officer
denying such an application must, as Justice Eleanor Dawson held in Mendoza
v. Canada (Minister of Citizenship and Immigration), 2004 FC 687, at par. 4,
“be sufficiently
clear, precise and intelligible so that a claimant may know why his or her
claim has failed.”
Similarly, in Ogunfowora v. Canada (Citizenship and Immigration), 2007 FC 471, at par. 60, this Court
held that “CAIPS
notes can constitute sufficient reasons, but only if they provide sufficient
details for the person to know the reason for which the application was
denied.” In the context of a rejection of an application for a visitor’s visa,
the notes must “provide in sufficient detail an analysis of why the officer
held that the applicants would not return to [their home country] at the end of
their authorized stay.”
[14]
While I am mindful
of the time constraints under which visa officers operate, they must
nevertheless provide applicants whose applications they reject with an
explanation of the elements that weighed against their applications, rather than
with a litany of factors, but no explanation for why they supported the rejection.
[15]
In my
view, the visa officer’s letter to the Applicant and CAIPS notes do not
disclose the reasons for which her application was denied. While it is clear from
the notes that the officer was of the opinion that the Applicant had limited
financial means and was not sufficiently established in Cameroon, so that her incentives to
return there would be weak, there is no explanation for why he formed these
opinions.
[16]
As the Applicant
points out, the Minister’s explanations for the visa officer’s decision have
little or no basis in either the letter sent to the Applicant or the
CAIPS notes. Thus, while the officer wrote that the Applicant “does not demonstrate
proof of establishment,” there is no mention at all of the fact that five of
her children live in the country, and that she operates a business and owns
property there. Nor is there any explanation for why the Applicant’s travel
history is considered to be “weak,” despite her trip to and return from Germany in 2007 (the customs stamps from which are clearly
visible on her passport). And, contrary to the Minister’s assertions, the visa
officer simply did not say that he believed the Applicant’s bank statement to
be a sham designed to establish inexistent economic ties, or that the Applicant
did not have a steady employment, or that her family could not support her in
Canada.
[17]
Furthermore,
several grounds invoked in the letter sent to the Applicant, such as the length
of her stay in Canada and the employment
prospects in Cameroon, are not even
mentioned in the officer’s notes.
[18]
In
short, even the letter and the CAIPS notes taken together are not “sufficiently clear, precise and
intelligible” (Mendoza, supra, at par.
4) to allow
the Applicant to know why her application was denied, or to allow this Court to
assess whether this denial was reasonable.
[19]
The
Minister’s explanations may or may not be correct, but whether they are is
irrelevant. This Court has consistently held that the very fact that a
decision-maker’s reasoning requires additional explanation, by way of an
affidavit sworn by the decision-maker himself (as in Ogunfowora, supra) or a party (as in Canada (Citizenship and Immigration) v. Wong, 2009 FC 1085) is indicative of the
reasons’ inadequacy. Speculation by way of counsel’s argument is not different.
The duty to give reasons for rejecting an application for a temporary resident
visa is limited, but the person whose application is rejected should still
not have to apply for judicial review of that decision to obtain an explanation
for it from the Minister’s counsel’s argument.
[20]
For
these reasons, the application for judicial review of the decision is granted,
and the matter is referred back to be decided by a different visa officer.
JUDGMENT
[21]
THIS
COURT ORDERS that the application for judicial
review of the decision be granted and the matter be referred back to be decided
by a different visa officer.
“Danièle
Tremblay-Lamer”
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