Docket: IMM-5508-11
Citation: 2012 FC 400
Ottawa, Ontario, April 10, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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BALSAM KAMAL ABDULATEEF
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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 seeks judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of the decision of a visa
officer (the “Officer”), dated July 19, 2011, which refused the applicant’s
application for a Study Permit because the Officer was not satisfied that the applicant
would leave Canada at the end of the study period if she were authorized to
enter. For the reasons that follow the application is dismissed.
Facts
[2]
The applicant,
Balsam Kamal Abdulateef, is a 35 year old citizen of Iraq who resides in Cairo, Egypt with her husband and three
children.
[3]
The applicant
applied for a Study Permit based on acceptance to Niagara College for an English as a second language
(ESL) program to be followed by a Business Management Program.
[4]
By letter
dated July 19, 2011, the applicant’s application for a Study Permit was
refused. The Officer refused the Study Permit because he was not satisfied
that the applicant was a bona fide temporary resident who would leave Canada at the end of the authorized
period of stay. In the Global Case Management System (GCMS) notes, the Officer
listed the documents submitted by the applicant and then found that: there was
no satisfactory reason why the applicant wished to pursue such studies; there
was no proof of funds; the applicant had weak ties to her home country (Iraq)
and Egypt; and the applicant had no compelling reason for travel to Canada.
Issue and Standard of Review
[5]
Was the
Officer’s decision to refuse the applicant’s application for a Study Permit
reasonable?
[6]
The
Supreme Court of Canada held in Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190
at para 62, that where the standard of review has been previously determined,
a standard of review analysis need not be repeated. This Court recently held
that an Officer’s conclusion that an applicant will not leave Canada at the end
of his or her authorized stay is a question of mixed fact and law which
accordingly attracts the reasonableness standard of review: Obot v Canada
(Minister of Citizenship and Immigration), 2012 FC 208 at para 12.
Analysis
[7]
The
legislative background provides critical context for assessing the
reasonableness of the Officer’s decision. Section 11 of the IRPA
requires a foreign national to meet the requirements of the IRPA in
order for an officer to issue a visa:
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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.
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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.
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[8]
Section 20
of the IRPA requires that, in order to become a temporary resident, a
foreign national establish that he or she will leave Canada by the end of the period authorized for
his or her stay:
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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.
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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.
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[9]
Section
216 of the Immigration and Refugee Protection Regulations (SOR/2002-227)
reiterates this requirement for those applying for a study permit:
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Study
permits
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
(a)
applied for it in accordance with this Part;
(b)
will leave Canada by the end of the period
authorized for their stay under Division 2 of Part 9;
(c)
meets the requirements of this Part; and
(d) meets the requirements of section
30;
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Permis
d’études
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 :
a)
l’étranger a demandé un permis d’études conformément à la présente partie;
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;
c) il
remplit les exigences prévues à la présente partie;
d) il satisfait aux exigences prévues à l’article 30.
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[10]
These
provisions, taken together, place the onus on the applicant to prove that she
is not an immigrant, but rather is a bona fide temporary resident who
will leave at the end of her authorized stay. The question of whether the applicant
has established that she meets this requirement is a question of fact, and
therefore the findings of the Officer are accorded deference by the Court. The
Officer is entitled to consider the totality of the circumstances: Zheng v
Canada (Minister of Citizenship and Immigration), [2001] FCJ No 110 (TD),
and so long as the Officer’s conclusion falls within the range of possible,
acceptable outcomes in light of the facts and the law, the Court has no basis
to intervene.
[11]
In this
case, the Officer was not satisfied that the applicant was a bona fide
temporary resident because: she failed to provide a satisfactory reason for
pursuing her proposed course of study; she provided no proof of funds; she had
weak ties to Iraq and Egypt; and had presented no compelling reason for travel
to Canada. I cannot find, with the possible exception of the finding regarding
funds, that any of these findings were unreasonable. In light of the family’s recent
departure from Iraq (2005) and temporary status in Egypt, the finding of weak ties was open to
the Officer. It was also open to the Officer to be unconvinced by the applicant’s
explanation for choosing her proposed program of study in Canada. No compelling explanation
was given as to why the applicant had selected Niagara College in Welland,
Ontario, to pursue the education, an omission that was accentuated by the fact
that she had previously travelled to England where she also had close family.
When pressed on this point, the applicant said that the tuition costs were
lower. The Officer asked that she produce the comparative tuition and living
costs between Canada and English schools, but the
applicant failed to do so. Taken together they amply support the Officer’s
conclusion and the outcome falls within the acceptable range in light of the
circumstances.
[12]
I reach
this conclusion despite my agreement with the applicant that the statement that
she provided no proof of funds was erroneous. She submitted a letter from her
father indicating he would pay all expenses related to her study in Canada, and she provided her
father’s bank statement showing considerable assets. However, in light of the
Officer’s other findings, which were reasonably open to the Officer in light of
the record this error does not render the Officer’s conclusion unreasonable. The
application is therefore dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed. No question for certification has been
proposed and none arises.
"Donald
J. Rennie"
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