Date: 20120801
Docket: IMM-8477-11
Citation: 2012 FC 959
Ottawa, Ontario, August
1, 2012
PRESENT: The Honourable Mr. Justice
Mandamin
BETWEEN:
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EKATERINA
UTENKOVA
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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 ORDER AND ORDER
[1]
The Applicant, Ms. Ekaterina Utenkova, applies for judicial review of the September 13, 2011
decision of the Visa Officer refusing the application for a Study Permit to
study English in Canada because the Officer was not satisfied that the
Applicant would leave at the end of the study period if she were authorized to
enter Canada;
[2] The
Applicant is a 30 year old citizen of Russia who applied for a Study Permit to
take an intensive English course in Canada. She worked as manager of a
technology company and had a 20% share in a new company created to market Smart
Home technology in Russia. She had tried to study English in Russia but was unsuccessful because of the demands of her present position. Consequently,
it was decided she should undertake an intensive English study program in Canada and, while in the country, make contact with North American Smart Home technology
companies.
[3] The
Visa Officer refused the Study Permit because the Officer determined that the
Applicant had not demonstrated that she is sufficiently well established in Russia and that her proposed studies are not reasonable in light of her previous studies
and employment.
[4] The
Officer noted the Applicant has a degree in psychology and is working for a
computer service and repair company. She did not appear to have any technical
training in the computer field other than one course she took at university.
The Officer also found the fact that the Applicant is a 20% shareholder in a
new company owned by her mother and is being sent to Canada to study English
while also looking for a new line of business to bring back for the new company
does not demonstrate that she is well established in Russia.
[5] The
Supreme Court of Canada held in Dunsmuir v New Brunswick 2008 SCC 9
there are only two standards of review: correctness for questions of law and
reasonableness involving questions of mixed fact and law and fact. The Supreme
Court also held 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 Immigration Officer’s decision based on the belief that
an applicant will not leave Canada at the end of his or her stay is a question
of mixed fact and law which accordingly attracts the reasonableness standard of
review (Obot v Canada (Minister of Citizenship & Immigration), 2012
FC 208 at para 12).
[6] The Immigration
and Refugee Protection Act, SC 2001, c 27 provides:
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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.
…
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,
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(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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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.
…
20. (1) L’étranger non visé à l’article 19 qui cherche à
entrer au Canada ou à y séjourner est tenu de prouver :
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b) pour devenir un resident 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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[Emphasis added]
[7] The
Officer’s decision is factually based and thus deserves deference. However, the
Officer may not misconstrue or ignore relevant evidence submitted by the
Applicant.
[8] The
Officer found the letter from the Applicant’s employer did not say that the
company was going to pay the expenses related to her studies in Canada. On review of the letter, it is clear that the company identified the educational
institution and determined to send the Applicant to study English. There is no
suggestion the company was not going to pay for the studies having chosen the
school and made the decision to send the Applicant there.
[9] I am
satisfied the Officer misconstrued the employer’s letter by failing to
acknowledge the clear inference that employer, having decided to send its
employee, the Applicant, abroad to study English and selected a specific
educational institution in Canada, was going to pay for the Applicant’s study
expenses.
[10] The
Officer found the Applicant was going to Canada to study something unrelated to
her previous studies and current job requirements.
[11] The
Officer’s findings are reasonable regarding the Applicant’s previous studies
but the Officer misconstrues past and current employment experience of the
Applicant. The evidence before the Officer is that the Applicant worked and
continues to work as a manager and sales person in a technology company rather
than as a technology specialist.
[12] The
Officer determined that the Applicant was going to Canada to study something
unrelated to her current work.
[13] The
Applicant’s employer clearly stated that the Applicant was responsible for
developing a new venture involving Smart Home technology and the company wanted
to develop business relationships with the Smart Home technology companies in Switzerland, the United States, Canada and Australia. Presumably English would be the working
language for the latter three countries and hence the need for English language
skills. This would be a factor the Officer ought to have considered in
reviewing the application for the Study Permit to study English in Canada.
[14] The
Officer found the Applicant’s income in Russia was modest and her savings are
unexplained given her modest income. The Officer makes this determination
without referring to any evidence about income levels in Russia in the field the Applicant worked. The Officer questions the Applicant’s saving of
$10,000 since the means by which the savings was acquired was not identified.
[15] Even
accepting the Officer would have knowledge of the local Russian economy, the
Officer ignores the Applicant owns an apartment as well as a 1/3 share in
another apartment in Nizhniy Novgorod and has a 20% share in a new company
venture. Given the significant establishment nature of property ownership, the
Officer should have considered the Applicant’s property holdings in assessing
the degree of the Applicant’s establishment in Russia.
[16] In
result, I find the Officer misconstrued relevant evidence and ignored other
evidence in deciding to refuse the Applicant’s visa application. The
application for judicial review succeeds.
[14] Neither party submitting a serious question of
general importance for certification;
ORDER
THIS COURT ORDERS that:
1.
The application for judicial review is allowed. The matter
is referred back for re‑determination by a different visa officer.
2.
No question is certified.
"Leonard S. Mandamin"
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