Date:
20121220
Docket:
IMM-1738-12
Citation:
2012 FC 1518
Ottawa, Ontario,
December 20, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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THARSINI
THIRUGUANASAMBANDAMURTHY
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a visa officer at the High Commission of Canada in Colombo (the
officer) dated December 20, 2011, wherein the applicant’s study permit
application was refused.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred back to the High
Commission for redetermination.
Background
[3]
The
applicant is a citizen of Sri Lanka. She applied for a study permit to study in
Canada at York University for a Bachelor of Science degree in computer
science, a program she had been previously accepted to. Her only family is her mother,
who lives in Sri Lanka and who the applicant intended to rely on for financial
support during her studies. She wishes to obtain this credential in order to
pursue technology jobs in Sri Lanka.
[4]
The
applicant made her visa application on December 1, 2011.
Officer’s Decision
[5]
In
a letter dated December 20, 2011, the officer informed the applicant her visa
application had been rejected. The officer had checked boxes on the form letter
indicating two reasons for the refusal: failure to satisfy the officer of the
existence of adequate funds to pay for tuition, living expenses and return to
country of residence and failure to satisfy the officer of sufficient ties to
Sri Lanka to ensure departure from Canada at the end of the visa.
[6]
The
Global Case Management System records (the GCMS notes) served as reasons for
the officer’s decision.
[7]
The
notes first replicate GCMS notes from the applicant’s four previous visa
applications, which were rejected. The notes entered on December 16, 2011,
summarize the facts of the current visa application, indicating that the
applicant was 21 years old and single, had an aunt and grandmother in Canada,
had not been employed or studied since August 2009 and had previously studied
at the American National College in Colombo so sought to gain credits for those
studies in Canada. The applicant would require two years and one semester of
study to complete her degree at York University. The applicant’s mother
received the equivalent of $160 Canadian per month from the rental of land in Jaffna and had the equivalent of $123,000 Canadian in fixed assets.
[8]
The
notes then summarize the officer’s interview with the applicant. The applicant
indicated her purpose in selecting Canada for her studies was due to the wide
recognition of diplomas and the low cost. She indicated her credits could only
be transferred to an American or Canadian university and tuition was more
expensive in the United States. She said she would have many job opportunities
in the Sri Lankan tech sector if she obtained a Canadian degree. When asked why
she would apply to Canada again after being refused a visa four times, she
indicated this was due to being accepted by York University and the recognition
of her credits.
[9]
When
the officer inquired why she did not apply to India given its large technology
sector, the applicant stated that computer science in Canada was more advanced. The officer noted that the applicant gave inconsistent answers as to her
employment efforts, first saying she had not applied for any jobs but then
saying she had applied to her old school, which did not have any positions
available. The applicant listed the types of courses she wished to take and
planned to get a job in the Sri Lankan technology sector. She said it would
cost $30,000 Canadian per year to obtain this education. The officer asked how
long it would take to recoup those costs and the applicant did not have a
reply. She indicated the source of her mother’s funds was revenue from land
purchased via funds from her mother’s brothers in Australia and the United Kingdom.
[10]
The
officer expressed his concerns to the applicant that she appeared focused on Canada despite her British and American based studies, as shown by her lack of applications to other
countries and her failure to advance herself in Sri Lanka in the previous two
years. The officer noted she gave vague answers and did not seem to have
considered the financial benefit from the studies or how long it might take to
recoup the costs. The officer noted the funds for her studies were not the
applicant’s or her mother’s, but from third parties in other countries. The
officer was not satisfied once she was in Canada the funds would be used to pay
for her studies or that her uncles could afford to pay for her studies. The
applicant said her mother’s loan of two million Sri Lankan rupees had been paid
back to her and the original money for the loan had come from her brothers.
[11]
The
officer indicated the applicant had not allayed these concerns. The applicant
had not demonstrated good establishment in Sri Lanka and shown weak economic
and family ties. The officer was not satisfied that the main purpose of the
application was not to gain entrance to Canada. The officer was not satisfied the
funds owned by the uncles would be used to pay for the applicant’s studies. The
officer was not satisfied the applicant would depart Canada once granted entry.
The officer refused the application.
Issues
[12]
The
applicant submits the following points at issue:
1. Did the officer
commit a reviewable error by determining without sufficient evidence that the
applicant would not leave Canada on the completion of her studies?
2. Did the officer
commit a reviewable error by failing to assess the evidence before determining
that:
(a) the
applicant did not have adequate funds to pay for her studies and return to her
country of residence;
(b) the
source of the applicant’s funds was not her mother; and
(c) the
funds listed in her application would not be used to pay for her studies in Canada?
[13]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in refusing the application?
Applicant’s Written Submissions
[14]
The
applicant submits that the appropriate standard of review is reasonableness,
given the issues are questions of fact.
[15]
The
applicant argues the officer failed to consider the totality of the evidence in
determining she was not likely to return to Sri Lanka. The officer had a duty
to verify the strength of an applicant’s family ties in assessing her
establishment in Sri Lanka. This Court has held that a child’s close
relationship to her parents is an important and relevant factor which an
officer must consider and that the mere fact that an applicant was single
without dependants was not sufficient to justify a finding of
non-establishment.
[16]
The
applicant further argues oversimplified generalizations should not supplant an
individualized assessment and that it has been recognized that a person may
have the dual intent of immigrating to Canada and of abiding by immigration law
respecting temporary entry.
[17]
The
applicant argues the officer’s finding of weak social and economic ties to Sri Lanka was unreasonable. The officer failed to consider her personal circumstances and
it was unreasonable to expect a person at her stage of life to have substantial
family or economic ties. The officer also erred by focusing on the quantity of
the applicant’s familial ties instead of the strength of her relationship to
her mother, who had no other support in Sri Lanka. That relationship
represented a strong incentive for the applicant to leave Canada at the end of her authorized stay.
[18]
The
fact that the applicant has not completely considered how to recoup the costs of
her education was irrelevant to whether she was a bona fide student who
would return to Sri Lanka. Focusing on this issue exclusively ignored the
reasons given by the applicant for her desire to study in Canada.
[19]
The
applicant offers statistics on the Sri Lankan economy showing it has improved
since the end of the civil war in 2009, meaning the officer’s assumptions about
recouping the cost of education were wrong. The applicant argues it was not
open to the officer to speculate about what the future may hold for the
applicant.
[20]
The
applicant argues she gave valid reasons for wanting to study in Canada, including the cost of tuition and the quality of education at York University. The applicant
submits that even if the officer believed the applicant would later apply to
immigrate to Canada, this is not a proper basis on which to reject a study
permit.
[21]
On
the issue of sufficient funds, the applicant argues the officer failed to
consider the evidence of the applicant’s mother’s finances. There was no reason
to believe the funds belonged to her uncles, rather, she had stated that they
had provided her mother with funds to buy land in 2009, but her mother had sold
that land in 2011. The officer disregarded abundant evidence of the mother’s
personal financial resources.
[22]
In
her further memorandum, the applicant repeats these arguments and notes that
the inconsistent responses relating to her job application are simply
attributable to the difference between a formal job application and an informal
inquiry.
Respondent’s Written Submissions
[23]
The
respondent argues the appropriate standard of review is reasonableness, given
that the officer’s decision is discretionary and for the most part a question
of fact.
[24]
The
respondent recites the factors the officer considered in refusing the
application and argues the officer is entitled to rely on common sense and
rationality in determining a visa applicant’s intentions. The respondent
characterizes the applicant’s arguments as pertaining only to the weighing of
evidence. The officer’s reasons were clear and the law is well established that
only very minimal reasons are required for this type of temporary resident visa
application.
[25]
The
officer was not required to extensively refer to every piece of evidence. The
onus was on the applicant to demonstrate that she would leave Canada as required and has the financial resources to support herself. The officer was under no
legal duty to ask for clarification or additional information.
Analysis and Decision
[26]
Issue
1
What is
the appropriate standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190).
[27]
I agree with the parties that a visa officer’s decision on a study
permit application should be reviewed on a reasonableness standard (see Patel
v Canada (Minister of Citizenship and Immigration), 2009 FC 602 at
paragraph 28, [2009] FCJ No 787).
[28]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47). As the Supreme Court held in Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, it is not up to a
reviewing court to substitute its own view of a preferable outcome, nor is it
the function of the reviewing court to reweigh the evidence (at paragraph 59).
[29]
Issue
2
Did the officer err in
refusing the application?
The reasonableness standard
brings with it the Dunsmuir above, value of justification. In this
matter, the applicant contends that the two findings made by the officer were
not reasonably justified given the evidence presented. I would also add that
the value of transparency is engaged, as the basis for several factual findings
was far from clear in the officer’s own notes.
[30]
The
officer’s finding that the funds for the applicant’s studies belong to her
uncles is not transparent. The officer does not give a reason for this finding
and it conflicts with the officer’s note elsewhere that the financial records
reflect the mother having a fixed deposit of the equivalent of $123,000
Canadian. The only mention of the uncles is the officer’s note that the uncles
had given the applicant’s mother the money to pay for land that was ultimately
sold and that they had provided her with money for a loan that had been paid
back. How the officer infers that the fixed deposit funds do not now belong to
the mother is impossible to tell from the reasons. There is simply no
indication anywhere in the record why the officer would doubt the ownership of
the deposit. Transfers of wealth from immigrants in rich countries to their
family members in less developed parts of the world are a common feature of
globalization and hardly an obvious indicator of deception.
[31]
It
is not this Court’s role to reweigh evidence and the officer did raise valid
concerns about the visa application. The finding on this point, however, is
unreasonable, given that the applicant had provided proof of access to funds for
the cost of her education and it is impossible to discern from this record why
the officer doubted that evidence.
[32]
On
the issue of the applicant’s intention to return to Sri Lanka, I find the
officer’s reasoning to be similarly opaque. The officer concluded the applicant
had only weak family ties to Sri Lanka. As there is no elaboration on this
finding, one can only assume the officer concluded the ties are weak due to
only a single family member being in that country. However, to judge family
ties solely based on the quantity of family members is to ignore the relevant
factor of the strength of the child-parent bond (see Guo v Canada (Minister of Citizenship and Immigration), 2001 FCT 1353 at paragraph 15, [2001]
FCJ No 1851). The officer may have had legitimate reasons for doubting the strength
of that bond in this case. The record is silent, making it very difficult for
this Court to see this finding as reasonable.
[33]
While
the family tie was only one part of the evidence considered by the officer on
the issue of intention to leave Canada, it clearly was central to that
determination and I cannot discern how the officer would have decided absent
that finding.
[34]
The
two reasons identified by the officer for rejecting the visa application were
both based on unreasonable findings. Therefore, I would grant the application
and remit the matter to a different officer for redetermination.
[35]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the officer is set aside and the matter is referred to
a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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25. (1) Subject
to subsection (1.2), the Minister must, on request of a foreign national in
Canada who applies for permanent resident status and who is inadmissible or
does not meet the requirements of this Act, and may, on request of a foreign
national outside Canada who applies for a permanent resident visa, examine
the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire, soit ne se conforme pas à la présente loi, et
peut, sur demande d’un étranger se trouvant hors du Canada qui demande un
visa de résident permanent, étudier le cas de cet étranger; il peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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