Date: 20100809
Docket: IMM-6034-09
Citation: 2010 FC 811
Ottawa, Ontario, August 9,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
KAMALALOJANI
PARAMASIVAM
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 decision of an Officer of the Immigration Section of the High Commission
of Canada in Sri Lanka (Officer), dated October 5, 2009 (Decision), which
refused the Applicant’s application for a temporary resident visa (TRV) to
Canada.
BACKGROUND
[2]
The
Applicant, a citizen of Sri
Lanka,
applied for a TRV to visit her ill brother-in-law and his family as well as another
brother in Canada. The Applicant has
numerous siblings, including 3 in Canada and 4 in Sri Lanka. She also has a child
living in New
Zealand.
[3]
The
Applicant’s brother in Canada provided the Applicant with
an invitation to visit. The Applicant applied for a TRV to visit Canada but
received a negative decision on August 19, 2009.
[4]
The
Applicant’s family then provided more documentation, including information with
regard to their financial status as well as a letter of reference from a Member
of Parliament. The Applicant applied again for a TRV and was refused on October
5, 2009.
DECISION UNDER REVIEW
[5]
The Officer
determined that the Applicant had failed to prove that she would leave Canada at the end of the
temporary period if she was authorized to visit. This determination was based
on consideration of her ties to Sri Lanka (residence and citizenship) and factors
which might motivate her to stay in Canada.
[6]
The
Officer noted the purpose of the Applicant’s visit, including visiting her sick
brother-in-law, as well as not having seen his children. The Officer also noted
the Applicant’s claim that she is a principal of a medical college in Jaffna and that she
received approval for leave from her employer.
[7]
However,
the Officer determined that the Applicant’s previous application on the same
grounds had been refused and that he could find no fault with the refusal
grounds. He felt that the Applicant had demonstrated “very few ties” to Sri Lanka. Furthermore,
he noted that she is a 69-year-old widow, although she “claims to still be
employed.” The Officer also noted that the Applicant has a limited travel
history, having only visited South Africa and India.
[8]
Based
on the above factors, the Officer was not satisfied that the Applicant had
enough ties to Sri Lanka to ensure her return.
ISSUES
[9]
The
Applicant submits the following issues on this application:
1.
Did
the Officer err in denying the Applicant’s TRV?
2.
Was
the failure to provide an opportunity for an interview or a right to respond to
any concerns the Officer may have had a violation of procedural fairness?
3.
Were
the reasons given sufficient to satisfy the requirement of procedural fairness?
STATUTORY PROVISIONS
[10]
The
following provisions of the Act are applicable in these proceedings:
|
Application before
entering Canada
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.
Obligation on entry
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,
…
(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.
|
Visa et documents
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.
Obligation à l’entrée au Canada
20. (1) L’étranger non visé à l’article 19 qui cherche à entrer au
Canada ou à y séjourner est tenu de prouver :
…
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.
|
[11]
The
following provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227 are also applicable in these proceedings:
|
Issuance
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.
|
Délivrance
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
[12]
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.
[13]
Questions of procedural
fairness are reviewed on a standard of correctness. See Weekes (Litigation Guardian) v. Canada (Minister of Citizenship and
Immigration), 2008 FC
293, 71 Imm. L.R. (3d) 4.
As such, the issue of whether procedural
fairness was breached by: a) the Officer’s failure to provide an interview or an
opportunity to respond to concerns; or b) the inadequacy of reasons is
reviewable on a standard of correctness.
[14]
The
issue of whether the Officer erred in his decision to deny the TRV is one of
discretion and deserves deference. See Danioko v. Canada (Minister of Citizenship
and Immigration),
2006 FC 479, [2006] F.C.J. No. 578 at paragraphs 16-19. As such, this issue
will be considered on the standard of reasonableness.
[15]
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.”
ARGUMENTS
The Applicant
Procedural
Fairness
[16]
The
Applicant contends that the Officer erred in failing to provide her with an
interview, even though she was present at the visa office and requested an
interview because of her first failed TRV application. According to the
Applicant, the Officer erred in refusing her application without interviewing
her “even though she was conveniently present in [sic] the premises and
requested an interview on the day her application was received, processed and
refused.”
[17]
According
to the Federal Court in Li v. Canada (Minister of Citizenship and Immigration),
2008 FC 1284, [2008] F.C.J. No. 1625 at paragraph 35, “procedural fairness
requires that an Applicant be given the opportunity to respond to an officer’s
concerns under certain circumstances.” The Applicant submits that her
application for a TRV gave rise to such circumstances.
[18]
The
Officer may have considered numerous factors in reaching his decision,
including travel documents, the Applicant’s family in Canada, the
Applicant’s purpose for travelling (including her brother-in-law’s illness) as
well as financial means. However, the refusal of the TRV does not seem to be
based on any of these factors.
[19]
Rather,
the Applicant was denied a TRV because the Officer believed that there were
factors motivating her to stay in Canada and that she would not
leave when required. However, there was no material before the Officer
suggesting that the Applicant had any intention of remaining in Canada.
Furthermore, the Applicant has not previously attempted to visit and remain in Canada, although
she has had family here for over two decades.
[20]
If
the Applicant were to leave Sri Lanka, she would leave behind
her employment, her position as a Justice of the Peace, as well as her family
ties, which are stronger in Sri Lanka than in Canada. Moreover,
remaining in Canada would take her farther away from her only child, who
resides in New
Zealand,
and her mother who continues to reside in Sri Lanka (a fact that
was not acknowledged by the Officer although this information was before him).
[21]
In
considering the evidence, the Officer also doubted that the Applicant could
still be employed because she is a 69-year-old widow. The Applicant suggests
that it is unreasonable to infer that a 69-year-old widow could not be
employed. Moreover, the Officer failed to consider the employment documents
provided by the Applicant in reaching this conclusion.
Evidence
Ignored
relevant evidence
[22]
The
Applicant says that the Officer further erred by ignoring relevant evidence.
For instance, the Officer did not recognize the Applicant’s extensive history
of international travel, which included a trip to South Africa to visit her
daughter who was there at the time. The Officer also failed to consider that
the Applicant did not attempt to remain beyond her authorized period of stay in
other international destinations to which she has travelled.
[23]
The
Officer also failed to consider the guarantee provided by the Applicant’s
sponsor. The Applicant contends that denying her access to Canada may affect
her ability to gain entry to other countries where she has close relatives,
including her only child who is in New Zealand. See, for example, Ogunfowora
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 471, [2007] F.C.J. No. 637 at
paragraph 34.
Erroneous
findings of fact
[24]
The
Decision was also based on erroneous findings of facts such as that the
Applicant had never met her host’s children, that she no longer has a daughter
in New
Zealand,
and that her daughter was currently visiting Sri Lanka. These
findings were made without regard to the evidence before the Officer. If the
Officer has evidence that supported such findings, the Officer should have
provided the Applicant with an opportunity to speak to these concerns.
[25]
Although
the Applicant’s brother-in-law has now passed away, the Applicant still
wishes to visit her now-widowed sister and her family, as well as her brother
in Canada.
The Respondent
Reasonable
decision
[26]
In
determining an application for a TRV, the Officer must be satisfied that the
foreign national will leave Canada at the expiry of the visa. In this
instance, the Applicant failed to discharge the burden upon her to satisfy the
Officer in this regard. While the Officer found that the Applicant’s host was
established in Canada, he also found that the Applicant had demonstrated very
few ties to Sri
Lanka.
As such, the Officer concluded that the Applicant had not provided enough
evidence to indicate that she would leave upon the expiry of the TRV.
[27]
The
Officer considered many factors in this instance, including:
a.
The
Applicant’s child in New Zealand;
b.
The
location of her siblings;
c.
The
location of her spouse’s siblings;
d.
Her
motivation to visit Canada;
e.
Her
employment and her approved leave;
f.
Her
wages;
g.
Her
ownership of property;
h.
Her
travel history.
Upon consideration of these factors, it was
reasonable for the Officer to determine that the Applicant had few ties in Sri Lanka. The Officer acted
reasonably and considered all the evidence before him in reaching a decision. The
Applicant is simply asking the Court to reweigh the evidence that was before
the Officer, but this is not the role of the Court. See Baylon v. Canada (Minister of Citizenship
and Immigration),
2009 FC 938, [2009] F.C.J. No. 1147 at paragraph 25.
Procedural Fairness
[28]
There
is no statutory requirement that an interview be granted to the Applicant under
these circumstances; nor is there any requirement for the Officer to advise the
Applicant as to his concerns. See, for example, Lu v. Canada (Minister of Citizenship
and Immigration), 2002 FCT 440, [2002] F.C.J. No. 579 at paragraph 11 and Dhillon
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 614, [2009] F.C.J. No. 794 at
paragraphs 30-32.
[29]
It
is the Applicant’s onus to provide the Officer with the necessary information
to support her application. The Officer is not obligated to approach the
Applicant with regard to any concerns or doubts. As stated by Justice Mosley in
Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004
FC 284, [2004] F.C.J. No. 317 at paragraph 23, “procedural fairness does not
stretch to the point of requiring that a visa officer has an obligation to
provide an applicant with a ‘running score’ of the weaknesses in their
application.”
[30]
The
Applicant has also alleged that insufficient reasons were provided for the
Decision. However, the Federal Court of Appeal has held that the duty to
provide adequate reasons is discharged when the decision-maker sets out its
findings of fact and the evidence upon which these findings are based. See VIA
Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 at
paragraphs 21 and 22.
[31]
The
Respondent submits that the Court ought to consider whether “the reasons
respond to the case’s live issues, having regard to the evidence as a whole and
the submissions.” As such, inadequate reasons are those that are so deficient that
they “foreclose meaningful appellate review.” See R. v. Dinardo, 2008
SCC 24, [2008] 1 S.C.R. 788 at paragraphs 24-25.
[32]
The
Applicant has also implied that the Officer relied on extrinsic or other
evidence in reaching his Decision. However the Officer does not state anywhere
in the Decision that he considered any information outside of what was provided.
As such, the CAIPS notes from the August 2009 decision need not be considered or
included in this instance.
Procedural
issue
[33]
The
Respondent concedes that the CAIPS notes may have been unintentionally cut off
during the facsimile process due to differing paper sizes. However, a complete
record has now been provided in the form of the Certified Tribunal Record.
Evidence
[34]
The
Applicant suggests that if all the facts, including the Applicant’s mother
still living in Sri Lanka were properly weighed, the only result could be
a positive decision. However, it is not the Court’s prerogative to re-weigh the
evidence that was before the Officer. See Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457. Rather,
the weighing of evidence deserves deference.
[35]
Furthermore,
the Decision does not suggest that the Officer ignored or misconstrued the
evidence before him in any way.
ANALYSIS
[36]
The
Officer has chosen to provide a very brief Decision in this case. Not a great
deal is required in the case of an application for a TRV but what we have in
this instance are reasons that cannot be clearly understood when compared with
the evidence that was submitted with the TRV application.
Previous
Application
[37]
The
CAIPS notes reveal that the Officer reviewed and took into account the previous
decision regarding the Applicant’s attempt to obtain a TRV:
This applicant previously applied for a
TRV to visit her terminally ill brother in law. That application was submitted
in August 2009 and was refused. I can find no fault in the refusal grounds.
This application is essentially the same as the last.
[38]
The
CAIPS notes for the first application have not been provided by the Respondent
so that it is not possible to review the Officer’s assessment and reliance upon
the previous decision. The Respondent’s position is that the Officer’s comments
concerning the previous decision are neutral. At the very least, however, they
suggest that the Officer may not have been fully aware of all of the materials
that were submitted with the second application.
Ties to Sri Lanka
[39]
The
principal basis for the Decision appears to be the Officer’s perception of the
Applicant’s ties to Sri Lanka:
The applicant however demonstrates very
few ties to Sri
Lanka. She is
widowed and 69 years old although she claims to be still employed. It would
appear she has never met her hosts children. Her own child resides in New Zealand but may currently be in Sri Lanka on a visit.
[40]
These
are inaccuracies in this assessment:
a.
The
Applicant has met her host’s children, although not for some time;
b.
The
Applicant’s daughter does reside in New Zealand but was not on a visit to Sri Lanka;
c.
The
Applicant more than “claimed” to be employed. She provided written proof that
she was employed as the Principal of a Medical College and there
was no reason to doubt this fact.
[41]
The
inaccuracies referred to in (a) and (b) above may not matter, but what is
important is that the demonstrated links to Sri Lanka were as
follows:
a.
The
Applicant was employed as the principal of a medical college;
b.
The
Applicant is paid a salary for her job and she had been granted temporary leave
by the college;
c.
The
Applicant owns property in Sri Lanka;
d.
The
Applicant has money in Sri Lanka;
e.
The
Applicant has three brothers and one sister in Sri Lanka who live
near her;
f.
The
Applicant has a 94-year-old mother in Sri Lanka who lives in the same
area as the Applicant;
g.
The
Applicant has lived all her life in Sri Lanka;
h.
The
Applicant is a Justice of the Peace in Sri Lanka.
[42]
I
do not believe that these facts can be reasonably assessed as demonstrating
“very few ties to Sri Lanka.” In coming to such a conclusion the Officer
has obviously overlooked significant material facts that were before him.
Travel
Experience
[43]
The
Officer also asserts that the “applicant has a limited travel history having
visited South Africa and India.” It is not clear why this should be
regarded as “limited,” because the requirement only asks for travel within the
previous six months and, in that time, the Applicant had travelled to South
Africa once and to India on several occasions and had returned to Sri Lanka.
Other Issues
[44]
One
important piece of evidence that is not referred to in the Decision is the
letter from the Applicant’s brother which read, in part, as follows:
My sister has no intention of abandoning Sri Lanka as her place of residence. I
can guarantee that she will return to Sri Lanka
after the purpose of the visit is served. I have been working for the Federal
Government of Canada for the past 22 years. I worked for Canada Immigration
before joining Immigration and Refugee Board (IRB). My current position is
Tribunal Officer with the Refugee Protection Division (RPD). I am scheduled to
start a long term acting position as an Assistant Director/RPD in late October
2009. I can assure you that I will not let my reputation to be tarnished by
inviting my sister to Canada for a temporary purpose
unless it is genuine.
[45]
These
may not be the Applicant’s own words but they are certainly a material fact
that was overlooked. It seems only reasonable to me that, given the brother’s
role in our immigration system, that the Applicant would leave it to him to
provide the reassurance that she would be returning to Sri Lanka.
Conclusions
[46]
Although
discretionary decisions require deference, I believe that the Officer’s
Decision in this case was based on unreasonable findings and a failure to
consider and assess important information that was before him.
[47]
First,
the Officer erred in his balancing of the factors which might prompt the
Applicant to stay as opposed to those factors which suggest she would return to
Sri
Lanka.
In order to properly balance the Applicant’s family ties in Sri Lanka, the
Officer ought to have considered the presence of all of the Applicant’s family
in Sri
Lanka
including her mother. In fact, the Officer shows no awareness of the
Applicant’s ties to Sri Lanka when he describes them as “very few.” This suggests
to me that they were either left out of account or unreasonably assessed.
Either way, this renders the Decision unreasonable.
[48]
The
Officer further erred by implying that the Applicant had falsified her state of
employment. Indeed, the Officer had information to support the Applicant’s
claim. He erred by failing to properly consider this evidence in determining
the truthfulness of the Applicant’s claim of employment. As noted by the
Applicant, it is unreasonable to infer that a 69-year-old widow could not be
employed. This is especially so where there are documents before the Officer that
support a contrary conclusion.
[49]
The
Officer has also overlooked highly material evidence provided by the
Applicant’s brother who is employed by the Federal Government of Canada as
described in his letter.
[50]
Based
on the accumulation of errors that occurred in this case, I believe that the
Decision is unreasonable and should be returned for reconsideration.
[51]
The
Applicant has also raised procedural fairness issues but, given my conclusions
on the Officer’s handling of the evidence, it is not necessary for me to deal
with additional grounds.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed, the Decision is quashed and the matter is returned for
re-determination by a different officer;
2.
There
is no question for certification.
“James
Russell”
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