Docket: IMM-3821-11
Citation: 2012 FC 208
Ottawa, Ontario, February
13, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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EKOMOBONG AKPAN OBOT
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, Mr. Ekomobong Akpan Obot, is a 25 year old graduate student from Nigeria. On three
occasions in 2010 and 2011 he requested a visa to continue his education in Canada. Each
request was refused on the ground that he would be unlikely to return to Nigeria on the
completion of his studies.
[2]
Mr.
Obot applies for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 of the decision made on May 5,
2011, by an Immigration Officer of the Canadian Embassy in Vienna. For the
reasons that follow, the application is granted.
BACKGROUND:
[3]
Mr.
Obot is from the delta region of southern Nigeria. His
parents, siblings and extended family remain there. His mother is a qualified
nurse employed at a university. A maternal uncle is a retired Rear Admiral of
the Nigerian Navy. His father had a long career in government and is active in
politics and business.
[4]
The
record indicates that Mr. Obot and his parents place a great emphasis on
education. The father obtained undergraduate and graduate degrees at an
American university. After working for a few years in the United
States
he returned to Nigeria with his family. Following high school, the
applicant was sent to study in Europe. From 2006 to 2009 he attended the Academy of Economic
Studies in Bucharest and obtained
a B.Sc. in International Business and Economics. He then attended the International Business School in Budapest,
affiliated with the Oxford Brookes University in the United
Kingdom,
and obtained a M.Sc. in Human Resources and Management in 2011.
[5]
During
his studies abroad, the applicant did not return to Nigeria. During one
summer break he visited relatives in the United Kingdom. He has not
worked, other than one summer where he served as a volunteer in the United
Kingdom.
His parents have provided for his tuition and living costs.
[6]
The
applicant applied for and was admitted to a pre-Masters of Business
Administration programme at Trinity Western University in British
Columbia.
This is described by the university as an upgrade programme to ensure that
candidates have the basic language and other skills required to complete an MBA.
[7]
Mr.
Obot has acknowledged that his application for a United Kingdom visitor’s visa
was initially refused. It was granted on reconsideration. There is no evidence
that the applicant abused the terms of that visa by overstaying. His
application for a study visa in the United States was denied for reasons
that are not part of the record. In addition to the three formal applications
for a Canadian study visa, the applicant has requested reconsideration on two
occasions. He has not previously sought judicial review of the refusals.
DECISION UNDER REVIEW:
[8]
The
decision letter dated May 6, 2011 indicates that the application was rejected
because the officer did not believe the applicant would leave Canada at the end
of his stay. The officer’s notes included in the Certified Tribunal Record, read
in part as follows:
Applicant has completed studies in Romania and Hungary. He is not established in any of these
countries, he has completed what he had to do and has no reasons to return
there after a stay in Cda. As for his country of origin, applicant had not
resided in Nigeria since 2006. He has no
children, property or career to return to. Many supporting documents were
provided by father who's involved in national politics party that won the last
election in APR11. Review of the conditions in Nigeria show that the election results were
contested by opposition which led to riots and deaths (500 according to Red
Cross estimations). The country is clearly divided in two following the
elections and instable [sic] at the moment. As a result of the lack of ties to
Romania, Hungary or Nigeria and of the
conditions in Nigeria at the moment, I'm not
satisfied there is sufficient evidence the applicant will leave Canada by the end of the period
authorized for stay. Refusing this application.
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ISSUES:
[9]
The
issues raised by this application are:
a. whether the
exhibits attached to the applicant’s second affidavit are admissible as they
were not before the officer when the decision was made; and
b. whether the officer’s
decision was reasonable.
RELEVANT LEGISLATION:
[10]
Paragraph
20(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c
27 states:
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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.
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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.
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[11]
Paragraph
216(1)(b) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (hereafter the Regulations) reads:
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216.
(1) Subject to subsections (2) and (3), an officer shall issue a study
permit to a foreign national if, following an examination, it is established
that the foreign national
(b) will leave Canada by the end of the period
authorized for their stay under Division 2 of Part 9;
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216.
(1) Sous réserve des paragraphes (2) et (3), l’agent délivre un permis
d’études à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont
établis :
b) il quittera le Canada à la fin de la
période de séjour qui lui est applicable au titre de la section 2 de la
partie 9;
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ANALYSIS:
Standard of
Review
[12]
The parties
are agreed and I accept that an Immigration Officer’s decision based on the
belief that the applicant will not leave Canada at the end of his stay is a question of mixed
fact and law. The standard of review is therefore reasonableness: Loveridge
v Canada (Minister of Citizenship and Immigration), 2011 FC 694 at para 10;
and Patel
v Canada (Minister of
Citizenship and Immigration), 2009 FC 602 at para 28.
[13]
As
the Supreme Court of Canada has recently instructed in Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 a review of
the adequacy of reasons does not invoke procedural fairness requiring the
correctness standard; the Court may supplement the reasons by reference to the
record; and deference should be accorded where the tribunal is alive to the
question at issue and comes to a decision well within the range of acceptable
outcomes.
[14]
A
finding of reasonableness is based on the existence of justification,
transparency and intelligibility within the decision-making process and whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law: Dunsmuir v New Brunswick,
2008 SCC 9 at para 47.
Is the new evidence
admissible?
[15]
As
a preliminary matter, the respondent objected to the admission of the
applicant’s second affidavit in support of his reply to the respondent’s
memorandum of argument as it attaches as exhibits letters from the applicant’s
father and uncle intended to rebut the officer’s statements regarding conditions
in Nigeria. As these
letters were not before the officer at the time the decision was made, they are
presumptively inadmissible: Ochapawace First Nation
v Canada (Attorney General), 2007 FC 920 aff’d by 2009
FCA 124.
[16]
However,
the Court may admit new evidence where it relates to procedural fairness and
jurisdiction and upon consideration of the factors set out in MacKay v
Canada (Attorney General) (1997), 129 FTR 286.
[17]
In
this instance, I am satisfied that the evidence should be admitted as it
relates to a finding about conditions in Nigeria which was
apparently made on extrinsic evidence and without inviting a response from the
applicant. Those circumstances give rise to the consideration of whether procedural
fairness was accorded the applicant.
Was the officer’s
decision reasonable?
[18]
It
was open to the officer to take into consideration the facts that the applicant
had not lived in Nigeria since 2006 and had not returned there for
visits with his family during breaks from his studies in Europe. As stated by
Justice de
Montigny in Doret v Canada (Minister of Citizenship and Immigration),
2009 FC 447 at paragraph 25, the fact that an applicant does not have a history
of returning to her country of origin from trips abroad is a relevant
consideration.
[19]
The
applicant and his father provided an explanation for why he had not returned
home – that the family wanted him to concentrate on his studies without
distractions. While that may appear unusual from a western developed world
perspective, it may be a more common practice in West Africa. In any event, there is no indication in
the record that the officer considered whether the explanation was reasonable
or not.
[20]
With
regards to the applicant’s ties to Nigeria, the officer’s reasons are not transparent,
justified and intelligible. The applicant is 25 years old and a student, it is
thus normal for him to have “no spouse, children or property” in Nigeria or anywhere else. Furthermore
the officer did not consider that all of the applicant’s family lives in
Nigeria and did not consider the strength of his ties to his family: Onyeka
v Canada (Minister of Citizenship and Immigration), 2009 FC 336 at paras
21-22; Li v Canada (Minister of Citizenship and Immigration), 2008 FC 1284 at para 30; and Zhang
v Canada (Minister of Citizenship and Immigration), 2003 FC 1493 at paras
21-22.
[21]
The
officer’s reasons do not disclose that she considered the fact that the
applicant has no ties to Canada and no family in Canada. Unlike in Doret, above, he has
travelled outside of his country and, thus far, has a record of returning to
the countries in which he is temporarily resident while pursuing his studies.
And he has encountered no difficulties with the authorities while living in
those countries. It seems to me that this record cannot be used to support the
inference that he does not intend to go back to Nigeria upon completion of his studies.
[22]
With
regards to conditions in Nigeria, there is nothing in
the certified tribunal record to support the officer’s statement that the
country was split. The issue was not brought to the attention of the applicant
and thus the applicant did not have the opportunity to make submissions on the
matter. In fact, the consideration of Nigeria’s current situation as
a factor for denying a visa does not appear in the decision communicated to the
applicant. The reasoning only appears in the officer’s notes. The officer’s
decision must be based on the evidence: Zuo v Canada (Minister of
Citizenship and Immigration), 2007 FC 88 at para 12; and Dunsmuir,
above, at para 47.
[23]
The
respondent contends that it was open to the officer to rely on her knowledge of
conditions in Nigeria and cites Baylon v Canada (Minister of
Citizenship and Immigration), 2009 FC 938 in support. In Baylon, Justice de
Montigny accepted that an officer could consider evidence of general country
conditions but found that the extraneous evidence was unsupported, undocumented
and irrelevant. At paragraph 34 he stated: “[o]versimplified generalizations
cannot and should not form the basis of what must always be an individualized
assessment based on the particular circumstances of each individual.” In this
case the officer fell into the trap of an oversimplified generalization and did
not conduct an individualized assessment.
[24]
While
I agree with the respondent that immigration officers become well versed in the
conditions within the countries from which visa applications are made, this
awareness does not constitute a form of “judicial notice” as was suggested in
oral argument. To the extent that concept may apply to administrative
decisions it would only arise where the facts are beyond dispute. Here, there
is clearly a difference of opinion about the conditions in Nigeria and whether
that would have a bearing on the applicant’s future return to that country.
[25]
In
the result I find that the decision to deny the applicant a student visa was
unreasonable and I will order that the matter be remitted for reconsideration
by a different officer in accordance with these reasons.
[26]
No
serious questions of general importance were proposed by the parties and none
will be certified.
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JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is granted and the matter is
remitted for reconsideration by a different Immigration Officer in accordance
with the reasons for judgment. No questions are certified.
“Richard
G. Mosley”
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