Docket: IMM-6414-11
Citation: 2012 FC 526
Ottawa, Ontario, May 3, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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AMARJEET SINGH
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
an immigration officer (Officer) at the Canadian High Commission in London,
United Kingdom (Decision), dated 23 August 2011, which refused the Applicant’s
application for a study permit.
BACKGROUND
[2]
The
Applicant is a citizen of India who is currently studying in the United
Kingdom (UK). His parents live in India, as do his three
brothers. The Applicant’s sister lives is Canada with her
husband (Rainal).
[3]
The
Applicant holds a diploma in Hotel Management, Catering Technology, and Tourism
from Punjab Technical University in India. He is
currently enrolled at the Ethames Graduate School in the UK, where he is
working toward a Bachelor of Science (B.Sc.) in International Tourism and
Hospitality Management. On 1 April 2011 the Applicant received an offer from George Brown College in Toronto (GBC) to
study in the Hospitality, Tourism, and Leisure Diploma program there. He
accepted the offer and paid his tuition fees, expecting to begin his studies on
6 September 2011.
[4]
To
study at GBC, the Applicant applied for a study permit to come to Canada. The
Canadian High Commission in London, UK (High Commission)
received his application on 10 August 2011. With his application, the Applicant
included a letter from his sister’s Member of Parliament, the Honourable Bal
Gosal, which asked the Officer to consider the Applicant’s case. The Applicant
also submitted a letter in which he told the Officer why he wanted to study at
GBC and an affidavit from Rainal. In the affidavit, Rainal said he would pay
the Applicant’s accommodation, travel, and living expenses in Canada and
guaranteed the Applicant would return to India and would not be a liability to
any level of government in Canada.
[5]
The
Officer considered the Applicant’s submissions and refused his application on
23 August 2011. On that day, she wrote two letters to the Applicant informing
him of her Decision.
DECISION
UNDER REVIEW
[6]
The
Decision in this case consists of the two letters the Officer sent the
Applicant on 23 August 2011 (Refusal Letters) and the Officer’s notes on
the file in the Global Case Management System (GCMS Notes).
[7]
The
Refusal Letters indicate the Officer was not satisfied the Applicant met all
the requirements of the Act. In particular, the Officer was not satisfied he
would leave Canada at the end
of his stay, given his travel history, immigration status, and family ties to Canada. The Officer
also referred to the Applicant’s general academic progression as a factor in
her Decision to refuse his application.
[8]
In
the GCMS Notes, the Officer noted that the Applicant had been previously
refused a study permit in August 2011. The Officer also noted he has a B.Sc. in
International Tourism from Ethames Graduate School in London, UK and was
enrolled in a Hospitality, Tourism, and Leisure Diploma program at GBC. Given
his B.Sc. and earlier diploma in Hotel Management, Catering Technology and
Tourism, the Officer found it was not logical for the Applicant to undertake
studies at a lower level in Canada. She found he had not explained why he
would not stay in the UK to complete his studies, which were
scheduled to end in 2013.
[9]
The
Officer noted the Applicant’s status in the UK was temporary; she was concerned
his aim was to stay in Canada permanently. She found the Applicant’s
ties to India were not
strong enough to motivate him to return there at the end of his stay in Canada. The Officer
also found the Applicant had strong family ties to Canada and was
young, single, and mobile. He had also never travelled internationally. The
Officer was not satisfied the Applicant was a temporary student, so she refused
his application for a study permit.
STATUTORY
PROVISIONS
[10]
The
following provisions of the Act are applicable in this proceeding:
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.
[…]
32. The regulations may provide for any matter
relating to the application of sections 27 to 31, may define, for the
purposes of this Act, the terms used in those sections, and may include provisions
respecting
(a) classes of temporary residents, such as
students and workers;
[...]
|
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.
[…]
32. Les
règlements régissent l’application des articles 27 à 31, définissent, pour
l’application de la présente loi, les termes qui y sont employés
et portent notamment
sur:
a) les
catégories de résidents temporaires, notamment les étudiants et les
travailleurs;
[…]
|
[11]
The
following provisions of the Immigration and Refugee Protection Regulations SOR/2002-227
(Regulations) are also applicable in this proceeding:
9. (1) A foreign national may not enter Canada to study without
first obtaining a study permit.
[…]
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
[…]
210. The student class is prescribed as a class of persons who may become
temporary
Residents
[…]
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;
[…]
|
9. (1)
L’étranger ne peut entrer au Canada pour y étudier que s’il a préalablement obtenu
un permis d’études.
[…]
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.
[...]
210. La
catégorie des étudiants est une catégorie réglementaire de personnes qui peuvent
devenir résidents temporaires.
[…]
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.
[…]
|
ISSUES
[12]
The
Applicant raises the following issues in this case:
a.
Whether
the Officer breached his right to procedural fairness by not calling him for an
interview;
b.
Whether
the Officer ignored evidence in concluding he was not a genuine temporary
student;
c.
Whether
the Officer’s reasons are inadequate.
STANDARD OF
REVIEW
[13]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a 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.
[14]
The
Officer’s decision not to call the Applicant for an interview implicates his
opportunity to respond, which is an aspect of the duty of fairness. In Canadian
Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour) 2003
SCC 29 (QL), the Supreme Court of Canada held at paragraph 100 that it “is for the
courts, not the Minister, to provide the legal answer to procedural fairness
questions.”
Further, the Federal Court of Appeal in Sketchley v Canada (Attorney
General)
2005 FCA 404 at paragraph 53 held that the “procedural fairness element is
reviewed as a question of law. No deference is due. The decision-maker has
either complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.” The standard of review on
the first issue is correctness.
[15]
The Officer’s finding the Applicant is not a genuine temporary
student is a finding of fact. In Dunsmuir, above, at paragraph 51, the
Supreme Court of Canada held that deference is generally to be given to
decision-makers’ findings of fact. The Supreme Court of Canada affirmed this
holding in Smith v Alliance Pipeline 2011 SCC 7
at paragraph 26. The standard of review on the second issue is reasonableness.
[16]
With respect to the adequacy of the Officer’s reasons, the Supreme
Court of Canada held, in Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62 at
paragraph 14, that the adequacy of reasons is not a
stand-alone basis for quashing a decision. Rather, “the reasons must be read
together with the outcome and serve the purpose of showing whether the result
falls within a range of possible outcomes.” The adequacy of the Officer’s
reasons will be analysed along with the reasonableness of the Decision as a
whole.
[17]
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.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only 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
Officer
Obligated to hold an Interview
[18]
The
Applicant says the Officer was obligated to call him in for an interview to
address concerns she had about his application. He points to Rukmangathan v
Canada (Minister of Citizenship and Immigration) 2004 FC 284 where Justice
Richard Mosley held a visa officer was required to call a visa applicant for an
interview to address concerns raised by extrinsic evidence (see paragraph 22).
Although the Officer was not obligated to give him a running score of his
application, she was required to allow him the opportunity to respond to
concerns about the credibility, accuracy, or genuine nature of the information
he submitted (see Hassani v Canada (Minister of Citizenship and Immigration)
2006 FC 1283 at paragraph 24). The Applicant points to Citizenship and
Immigration Canada’s (CIC) Manual, OP 12 – Students (OP-12 Manual) which
says at page 40 that
In certain
circumstances, it may be necessary to interview the applicant. Applicants
should not be scheduled for interviews for the sole purpose of obtaining
straightforward information. Issues that may warrant the need for an interview
would include:
a) questions or doubts
concerning applicant’s reasons for wishing to come to Canada, the arrangements
made for their care and support, and their ability or willingness to leave Canada; or
b) circumstances when
the officer needs more information or clarification before finalizing an
application.
This is not an exhaustive list. Other exceptional
circumstances may warrant an interview.
[19]
If
the Officer had concerns about the Applicant’s credibility or the credibility
of the documents he submitted, she was obligated to call him for an interview
to address those concerns. The Applicant’s application was complete and
supported by numerous documents. However, the Officer drew an adverse inference
about his intent without any evidence to support it. When the Officer did not
call the Applicant for an interview she breached his right to procedural fairness.
Officer
Ignored Evidence
[20]
The
Applicant says the Officer concluded he was not a genuine temporary student in
the face of all the documents he submitted that showed otherwise. This shows
the Officer failed to consider all the evidence before her. When the Officer
found he had no international travel experience, she ignored his current
residence in the UK. She also ignored evidence when she concluded
his family ties in India were not strong enough to motivate him to
return there on the completion of his studies. The Applicant’s application
shows his mother, father, and three brothers live in India, which the
Officer clearly ignored. Conversely, the Officer concluded that Canada’s pull on
the Applicant was strong, even though his application showed he only has one
sister here. The Officer failed to account for the fact that, like the
Applicant, most applicants for study permits are young, single, and highly
mobile. To hold these characteristics against him would be to exclude most
applicants for study permits from consideration.
[21]
The
Applicant also says the Officer ignored his submissions that he wanted to study
at GBC because of the hands-on learning component GBC offers. The Officer
clearly ignored this submission, as well as Rainal’s affidavit.
Inadequate
Reasons
[22]
The
Applicant also says the Officer’s reasons are inadequate because they do not
serve the purposes for which reasons are required (see Via Rail Canada Inc v
National Transportation Agency, [2000] FCJ No 1685 at paragraphs 21 and
22). The Officer’s reasons do not accurately reflect how the Officer came to
her conclusion and do not explain why she concluded he is not a genuine student
and would not leave Canada at the end of his stay. Her reasons also do not
allow the Applicant to predict how he would fare on a subsequent application
for a study permit.
The
Respondent
No
Breach of Procedural Fairness
[23]
The
Respondent says the Officer was not obligated to call the Applicant for an
interview, so she did not breach his right to procedural fairness when she did
not do so. The content of the duty of fairness in an application for a study
permit is low, given the onus on applicants to prove they meet the requirements
and the fact there is no legal right to a visa. Officers are only obligated to
give visa applicants the opportunity to respond to concerns where they rely on
information of which applicants are not aware. The Respondent distinguishes Hassani,
above, which teaches that where an officer’s concerns arise directly out of the
Act or Regulations there is no duty to give applicants the opportunity to
respond (see paragraph 24).
[24]
In
this case, the concerns which led the Officer to refuse the Applicant’s
application for a study permit arose directly out of the Act. The Officer was
not concerned with the Applicant’s credibility or with whether his documents
were genuine; she simply assessed the information he submitted and concluded it
did not satisfy her he met the requirements of the Act. The Officer was not
required to put any tentative conclusions to the Applicant and his reliance on Rukmangathan,
above, is misplaced.
[25]
The
Respondent also says the OP-12 Manual shows only that the Officer had the
discretion to call the Applicant for an interview. The language the Applicant
has relied on is permissive, not mandatory. In this case, the Officer
reasonably exercised her discretion and chose not to hold an interview.
Officer Did
Not Ignore Evidence
[26]
The
Respondent further says the Officer did not ignore evidence when she concluded
the Applicant is not a genuine temporary student. The GCMS Notes indicate the
Officer was clearly aware the Applicant was living in the UK, so it is
clear she was not referring to his time there when she said he had no
international travel. Her conclusion on this point was reasonable in the
context of the Decision and record as a whole.
[27]
Although
the Applicant disagrees with the Officer’s findings about the strength of his
ties to India and Canada, the
Respondent says her findings were reasonable. It was reasonable for the Officer
to conclude that a sister in Canada was a factor which showed he would not
leave Canada at the end
of his stay. Further, even though the Officer did not specifically mention the
Applicant’s reasons for studying at GBC, this does not mean she did not
consider them. The Officer’s reasons should not be read microscopically; on the
whole, they show the Officer considered the totality of the evidence.
Inadequacy
of Reasons no Basis to Quash the Decision
[28]
Finally,
the Respondent points to Newfoundland and Labrador Nurses’ Association,
above, and says the Court cannot quash the Decision solely because the reasons
are inadequate. The Officer’s Decision not to grant the Applicant a study
permit was reasonable as shown by the reasons and the record, so the Decision
meets the Newfoundland and Labrador Nurses’ Association standard
and the Court should not interfere.
The
Applicant’s Reply
[29]
The
Applicant says the Respondent is incorrect to distinguish Rukmangathan
and Hassani, above. The Applicant points to paragraph 22 of Rukmangathan,
above, where Justice Mosley held that “the duty of fairness may require
immigration officials to inform applicants of their concerns with applications
so that an applicant may have a chance to ‘disabuse’ an officer of such
concerns, even where such concerns arise from evidence tendered by the
applicant.”
[30]
The Decision shows the Officer was concerned about the Applicant’s
credibility, so she was obligated to call him for an interview. This was not a
case where the application was incomplete, but rather a case where the Officer
came to the conclusion the Applicant would not depart at the end of his
studies. The Officer drew an adverse inference as to the Applicant’s intent,
but she was required to call him for an interview before doing so.
ANALYSIS
[31]
As
the Respondent points out, this Court should give considerable deference to the
Officer’s Decision not to grant a visa. Visa officers have recognized expertise
in analyzing and assessing student visa applications. The decision on an
application for a temporary student authorization is not judicial, or
quasi-judicial in nature.
[32]
The
burden was on the Applicant to satisfy the Officer that he was not an
immigrant. He was obliged to establish, inter alia, that his intentions
were bona fide, and that he will leave Canada by the end
of the period authorized. A visa officer should be able to make such an
assessment on the face of the application.
[33]
A
visa officer’s decision not to do grant a visa is highly discretionary.
However, such discretion cannot be exercised in an arbitrary manner. There is a
world of difference between discretion and whim. The issues before me in this
case have been before the Court on many previous occasions and I think it would
be helpful at the outset to examine some of the relevant case law before
addressing the facts of the case.
[34]
First
of all, as regards the duty of fairness, Justice Francis C. Muldoon provided
some general guidance in Li v Canada (Minister of
Citizenship and Immigration) 2001 FCT 791, at paragraphs 45 to 50:
The first factor
identified by the Court in Baker is the closeness of the administrative process
to the judicial process. The more the determinations which must be made to
reach a decision resemble judicial decision making, the more likely it is that
procedural protections closer to the trial model will be required by the duty
of fairness. The processing of student authorization applications by a visa
officer is highly administrative and does not resemble judicial
decision-making. This factor militates in favour of more relaxed requirements
under the duty of fairness.
The second
factor is the nature of the statutory scheme pursuant to which the body
operates. Greater protections will be required when no appeal procedure is
provided within the statute, or when the decision is determinative of the
issue. For student applications, an unsuccessful applicant can seek a remedy in
this Court by judicial review. This militates in favour of more relaxed
procedural requirements.
The third
factor in determining the nature and extent of the duty of fairness owed is the
importance of the decision to the individuals affected. The more important the
decision is to their lives and the greater its impact on those persons, the
more stringent the procedural protections mandated. A negative decision means
that the applicant will be unable to study in Canada for a temporary period. The individual is free to apply
again in the future. Therefore, this factor militates in favour of more relaxed
procedural requirements.
The fourth
factor is the legitimate expectations of the person challenging th decision. If
the claimant has a legitimate expectation that a certain procedure will be
followed, it will be required by the duty of fairness. Nevertheless, this
doctrine is does not create substantive rights. An applicant for a student
authorization does not have a legitimate expectation regarding the procedure
followed in processing the application.
Finally,
the analysis of what procedures the duty of fairness requires should also take
into account and respect the choices of procedure made by the agency itself,
particularly when the statute leaves to the decision-maker the ability to
choose the procedures, or when the agency has an expertise in determining what
procedures are appropriate. The Immigration Act does not require that a
particular procedure be followed in processing student authorizations.
Considering the large number of student authorization applications which are
processed, the procedure adopted by the Embassy should be respected.
In balancing
the factors in Baker, the procedural requirements mandated by the duty of
fairness should be relaxed for the processing of applications for student
authorizations by visa officers overseas. Therefore, there are no grounds to
argue unfairness in this process because a visa officer did not communicate all
of her concerns to the applicant, or that she did not accord the applicant an
opportunity to respond to those concerns. [citations omitted]
[35]
In
Khan v Canada (Minister of Citizenship and Immigration) 2001 FCA
345, at paragraphs 31 and 32, the Federal Court of Appeal addressed the factors
that limit the content of the duty of fairness in cases such as this one:
The factors
tending to limit the content of the duty in the case at bar include: the absence
of a legal right to a visa; the imposition on the applicant of the burden of
establishing eligibility for a visa; the less serious impact on the individual
that the refusal of a visa typically has, compared with the removal of a
benefit, such as continuing residence in Canada; and the fact that the issue in
dispute in this case (namely, the nature of the services that Abdullah is
likely to require in Canada and whether they would constitute an excessive
demand) is not one that the applicant is particularly well placed to address.
Finally,
when setting the content of the duty of fairness appropriate for the
determination of visa applications, the Court must guard against imposing a
level of procedural formality that, given the volume of applications that visa
officers are required to process, would unduly encumber efficient
administration. The public interest in containing administrative costs and in
not hindering expeditious decision-making must be weighed against the benefits
of participation in the process by the person directly affected.
[36]
Justice
Robert L. Barnes also addressed these issues in Wang v Canada (Minister of
Citizenship and Immigration), 2006 FC 1298, at paragraph 20:
In this case, the Respondent was dealing with one of several
thousand visa applications it receives in Beijing each month. Its practices in the rendering of decisions are a
reflection of the workloads associated with this process. Whatever the merits
of her application, the Applicant had no right to enter Canada. The fairness duty to
provide reasons in a context like this would be at the lower end of detail and
formality and, in my view, the reasons provided to the Applicant were
sufficient to meet that legal obligation.
[37]
It
is also well recognized that, to use the words of Justice Judith Snider in Ayatollahi
v Canada (Minister of
Citizenship and Immigration) 2003 FCT 248 at paragraph 12 “the decision
on an application for a temporary student authorization is not judicial or
quasi-judicial in nature.”
[38]
It
has to be borne in mind that the onus is on the Applicant to meet the
evidentiary burden of satisfying the officer that he will leave Canada at the end
of his authorized stay. The words of Justice Luc Martineau in Huang v Canada (Minister of
Citizenship and Immigration), [2012] FCJ No. 203, at paragraph 7,
should be kept in mind:
The applicant’s arguments are unconvincing. Case law teaches that
where an applicant fails to meet the evidentiary onus of satisfying the Visa
Officer that they will leave Canada at the end of their authorized stay, an interview is not a
statutory requirement. It is the applicants who bears the onus of providing
visa officers with thorough applications in the first place (Lu v Canada (Minister of Citizenship and Immigration), 2002
FCT 440 at para 11; Dhillon v Canada (Minister of
Citizenship and Immigration), 2009 FC 614 at paras 30-32; Bonilla v Canada (Minister of Citizenship and Immigration),
2007 FC 20 at para 22 [Bollina ]). Generally, where
an officer has extrinsic information of which the applicant is unaware, an
opportunity to respond should be made available to the applicant to disabuse
the officer of any concerns arising from that evidence (Ling
v Canada (Minister of Citizenship and Immigration), 2003 FC 1198 at para
16; Chow v Canada (Minister of Citizenship and Immigration),
2001 FCT 996 at para 14). A similar exception is found where the officer's
conclusion is based on a subjective consideration rather that on objective
evidence (Bollina, above, at para 27; Yuan v Canada (Minister of Citizenship and Immigration), [2001]
FCJ 1852 at para 12). This is not the case here. In this instance, the Visa
Officer relied only on materials submitted by or known to the applicant and so
he was not required to conduct an interview. By themselves, the expired bank
note, the lack of any other financial records or documentation to confirm
residency and registration, are relevant to assess financial capability and his
degree of establishment in China (for example, the applicant does not own a
house in China). Thus, no reviewable error has been made in this regard by the
Visa Officer.
[39]
Likewise,
the words of Justice Russel Zinn in Singh v Canada (Minister of
Citizenship and Immigration), 2009 FC 620, at paragraph 7, are equally
applicable to the case before me:
I find that there is no merit to the submission that the officer
ought to have provided the applicant with an opportunity to address his
concerns. Justice Russell in Ling v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1198, reviewed the law as to when a
visa officer ought to provide such an opportunity. Relying on Ali v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 468, he noted firstly that there was no
statutory right to an interview, or any dialogue of the sort suggested here.
Secondly, it was noted that generally an opportunity to respond is available
only when the officer has information of which the applicant is not aware. As
in Ling, that is not the situation here and thus no
opportunity was required to be given to Mr. Singh to address the officer's
concerns. Further, when as here the officer is relying only on materials
submitted by or known to the applicant, there is no need for an interview.
[40]
In
the present case, the Officer said she refused the visa because:
a.
Taking
into account the Applicant’s travel history, immigration status and family ties
in Canada and India, the Officer was not satisfied that the Applicant would
leave Canada at the end of his stay; and
b.
She
was suspicious about the Applicant’s “general academic progression.”
[41]
The
notes provide further details of the Officer’s reasoning:
I reviewed PA’s application and FOSS —
Seen previous SP refusal in early August this year. PA is reapplying. 25 yr old
single male from India. SP in the UK valid until 2013. Has BSc in
International Tourism from Ethames Grad School in London. Accept at George Brown College in a Hospitality, Tourism and Leisure
diploma program. Note that PA’s sister resides in Canada. On file: Copy of the letter from Hon.
Bal Gosal (Canadian Minister of State for Sports). LOFA with tuition fees of
11,961 CAD which appear to have been paid, letter of sponsorship from PA’s
brother-in-law in Canada, POF and docs relating to Canadian family, transcripts
from PA’s studies in India and proof of studies in the UK as well as various
supporting docs. PA obtained a diploma from Punjab Technical University in Hotel Management, Catering
Tech and Tourism in 2006, he is also currently undertaking a BSc (Hons) in
International Tourism and Hospitality. It does not appear logical that PA would
now undertake studies at a lower academic level in this field. It is not
clearly explained why the Applicant would not remain in the UK to complete his current course which is
due to end in 2013. Concerns that the main aim is to enter and remain in Canada. PA’s status in the UK is
temporary and with the information on file I am not satisfied that PA’s ties to
India are strong enough to motivate
departure from Canada. Pull to Canada also appears strong due to
family ties. PA has no international travel, he is young, single, with no
dependents and is highly mobile. With the documents and information on file, I
am not satisfied that PA is a genuine temporary student who would leave at the
end of his stay. SP refused.
[42]
So
the basis for the negative Decision was that:
a.
It
does not appear logical that the Applicant would now undertake studies at a
lower academic level in this field;
b.
It
is not clearly explained why the Applicant would not remain in the UK to complete
his current course which is due to end in 2013;
c.
The
Applicant’s status in the UK is temporary and the information on file does not
demonstrate that his ties to India are strong enough to motivate departure
from Canada;
d.
The
pull to Canada is strong
because of family ties;
e.
The
Applicant has no international travel;
f.
The
Applicant is young, single, has no dependents and is highly mobile.
[43]
It
is possible to take issue with some of these grounds. For example, the
Applicant points out that most students are single, have no dependents and are
highly mobile. But this misses the point. The factors have to be looked at
together and the Applicant’s youth and mobility, even if he shares them with
other students, are obviously relevant. After all, young people do sometimes
come to Canada on visas and
then stay at the end of the terms.
[44]
The
Applicant takes issue with these specific findings in the Decision and points
out that
The officer noted that the Applicant had
no international travel, however the evidence indicated that the Applicant, who
was from India, was studying in England;
The officer noted that the Applicant’s
ties to India were not strong enough, however the evidence indicated that the
Applicant’s family, including his mother, father and three brothers were all
residing in India;
The officer noted that “pull to Canada also appears strong due to
family ties,” however the evidence indicated that the Applicant only had one
sister in Canada. It is perverse and
capricious to conclude that the Applicant’s ties to India, where the majority
of his family lived, were not strong enough while at the same time his ties to
Canada were “strong” enough because he had one sister here;
The officer noted that the Applicant was
“young, single, with no dependants and is highly mobile” and held this against
him. The Applicant is applying for a student permit in Canada and students are generally “young and
single.” In any event, it is an error for the officer to rely on
generalizations in order to justify a refusal of a study permit. If being young
and single represents reasonable grounds to refuse a study permit, then no
international students should be allowed to come to Canada. (see Bonilla v M.C.I. [sic] 2007
FC 20)
It is further submitted that the officer
erred in law by failing to consider specific relevant evidence before [her].
Thus, the Applicant provided a statement explaining why he wanted to study
Hospitality, Tourism and Leisure diploma program in George Brown College,
namely that this program has the hands-on learning aspect in addition to class and
theory time, and that the seven-week practical experience offered by George
Brown College will be a great advancement and opportunity for the Applicant.
This evidence was clearly ignored by the officer who had concerns as to the
particular program the Applicant had decided to enrol in Canada. Furthermore, the Applicant
also provided an affidavit from his brother-in-law, Mohinder Singh Rainal
affirming accommodation and coverage of expenses in Canada, and that the
Applicant would return to India at the end of his studies.
This evidence was clearly relevant as to the issue of the Applicant’s intent to
return to India at the end of his studies but
was also ignored by the officer.
[45]
There
is nothing to suggest that any evidence was ignored. The Officer obviously
reviewed the whole package and then provided the reasons why she was not
convinced the Applicant would leave Canada. She balanced the
Applicant’s reasons for wanting to attend GBC against the fact that this was an
academic step down for him, then weighed both of these against his family ties
in Canada and India and his youth, inexperience, and lack of international
travel. Obviously, it is possible to disagree with her conclusions, but I do
not think I can say they fall outside of the Dunsmuir range.
[46]
The
reasons are clear as to why the visa was refused. The Officer was not satisfied
that the Applicant was “a genuine temporary student who would leave at the end
of his stay” given that it was not logical for him to abandon his course in the
UK and come to Canada. The Officer
gave reasons for this conclusion in the Decision. There were factors that
favoured the Applicant, but looking at the evidence as a whole, I cannot say
that the Officer’s conclusions fall outside of the Dunsmuir range.
Procedural
Fairness
[47]
The
Applicant’s strongest point on procedural fairness in the present case is that
he was never given the opportunity to address the Officer’s principal concern
that
It does not appear logical that PA would
now undertake studies at a lower academic level in this field. It is not
clearly explained why the Applicant would not remain in the UK to complete his current course, which is
due to end in 2013.
[48]
The
Applicant says that he explained why he had chosen the course at George Brown College in Canada and that he
could not have anticipated this subjective concern about his abandoning the UK and he
should have been given an opportunity to address this issue. The Applicant
places particular reliance upon Justice Mosley’s decision in Rukmangathan,
above, at paragraphs 22 and 23:
It is well
established that in the context of visa officer decisions procedural fairness
requires that an applicant be given an opportunity to respond to extrinsic
evidence relied upon by the visa officer and to be apprised of the officer’s
concerns arising therefrom: Muliadi, supra. In my view, the
Federal Court of Appeal’s endorsement in Muliadi, supra, of Lord
Parker’s comments in In re H.K. (An Infant), [1967] 2 Q.B. 617,
indicates that the duty of fairness may require immigration officials to inform
applicants of their concerns with applications so that an applicant may have a
chance to “disabuse” an officer of such concerns, even where such concerns
arise from evidence tendered by the applicant. Other decisions of this court
support this interpretation of Muliadi, supra. See, for example, Fong
v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705
(T.D.), John v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 350 (T.D.)(QL) and Cornea v. Canada (Minister
of Citizenship and Immigration) (2003), 30
Imm. L.R. (3d) 38 (F.C.T.D.), where it had been held that a visa officer should
apprise an applicant at an interview of her negative impressions of evidence
tendered by the applicant.
However,
this principle of 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: Asghar v. Canada (Minister
of Citizenship and Immigration), [1997]
F.C.J. No. 1091 (T.D.)(QL) at para. 21 and Liao v. Canada (Minister
of Citizenship and Immigration), [2000]
F.C.J. No. 1926 (T.D.)(QL) at para. 23. And there is no obligation on the part
of a visa officer to apprise an applicant of her concerns that arise directly
from the requirements of the former Act or Regulations: Yu v. Canada
(Minister of Employment and Immigration) (1990), 36 F.T.R. 296, Ali v.
Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1 and Bakhtiania
v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1023
(T.D.)(QL).
[49]
In
the present case, this was not a concern about the evidence submitted by the
Applicant. The evidence revealed that the Applicant, who claimed to be looking
for international experience, wanted to abandon his course in the UK and come
to Canada to begin a
course at George Brown College. The
Applicant explained what he liked about the course at George Brown College, but
he did not explain that what he was looking for was not available to him in England as part of
his current course.
[50]
The
situation here has some similarity with Hong v Canada (Minister of
Citizenship and Immigration) 2011 FC 463, at paragraph 17, where
Justice Richard Boivin dismissed an application that, inter alia, advanced
the following argument:
With respect to her studies, Ms. Hong stresses that she provided
the Visa Officer with a certificate establishing her success in completing a
program in Hotel and Tourism management in Vietnam. According to Ms. Hong, the Visa Officer committed an error when
he concluded that her proposed studies are not reasonable in light of her
previous studies and that she is not sufficiently established in Vietnam for the purposes of granting
her a one year study permit.
[51]
Tran
v Canada (Minister of
Citizenship and Immigration) 2006 FC 1377, at paragraphs 30 to 33, is
also instructive in that the applicant in that case argued, as here, that the
officer had failed to put his concerns to her and provide an opportunity to
respond:
As stated above,
procedural protection that arises in the context of a student visa application
is “relaxed”. There is no unfairness if the Visa Officer did not communicate
all of her concerns to Mr. Le Minh Duc Tran or that she did not accord him an
opportunity to respond to those concerns. (Li,
above; Skoruk, above)
It is also
reasonable to expect that Visa Officers will bring their own experience and
expertise to the applications before them. (Wen v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1262, [2002]
F.C.J. No. 1719 (QL), at para. 16; Skoruk, above, at
para. 14)
The fact
that the Visa Officer considered the availability of similar culinary
management programs of study available in Vietnam and South Asia at a “fraction of the cost” does not constitute
an error. Contrary to what is argued by Mr. Le Minh Duc Tran, the Visa Officer
did not rely on extrinsic evidence, but rather relied on her own expertise and
analysis of all the evidence before her. (Wen,
above, at paras. 18-19)
As in Skoruk, above, these considerations of local conditions
coupled with those considerations more personal to Mr. Le Minh Duc Tran, were
part of the totality of circumstances which the Visa Officer had to assess in
reaching her decision. (the Brown Affidavit; Skoruk,
above, at para. 14)
[52]
The
Applicant appears to take the position that procedural fairness arises whenever
an officer has concerns that the applicant could not reasonably have
anticipated. I think the jurisprudence of this Court demonstrates otherwise.
What applicants can reasonably anticipate is that officers will bring their own
experience and expertise to bear upon the application and will draw inferences
and conclusions from the evidence that is placed before them without
necessarily alerting applicants on these matters. The onus is upon applicants
to put together applications that are convincing and that anticipate possible
adverse inferences contained in the evidence and local conditions and address
them.
[53]
Perhaps
most instructive is Ayatollahi, above, at paragraphs 20 and 21, where
Justice Snider had the following to say on point:
In this case, the visa officer stated his
reasons as follows:
I based my decision in part on my judgement
that his study plans are not reasonable, in that he proposed to study a law
clerk program with the stated purpose of applying his studies in his father’s
construction business in Iran. He provided no explanation of how the
proposed studies in Canada were indeed relevant to his future plans in Iran. The
legal and business systems in Iran are considerably different from those in Canada and such
studies would be of limited specific utility, in my judgement, to an Iranian
construction business. Accordingly, I also found his study plans less than
fully credible and refused the application.
There was not, in my view, a breach of
procedural fairness as a result of the visa officer’s failure to put his
concerns to the Applicant. Most importantly, the burden was on the Applicant to
come forward with his best case. He did not do this; specifically, he failed to
give any rationale for his proposed course of studies, other than to assist his
father upon his return. Given the onus on the Applicant, I believe that it
would have been reasonably open to the officer to refuse the application on that
basis alone.
[54]
The
Applicant says that he was denied procedural fairness because the Officer did
not alert him to her concerns and give him an opportunity to address them. In
my view, on the present facts, that would amount to the Officer telling the Applicant
that he had not, on his evidence, convinced her he would leave at the end of
his stay, and then giving him an opportunity to argue her out of that
conclusion. There were no specific concerns with the evidence. It was just
that, taken as a whole, — “with the documents and information on file” — the
Officer was not satisfied he would leave at the end of his stay. The onus was
on the Applicant to convince the Officer that he would leave. There was no
obligation on the Officer to inform the Applicant that he had not discharged
that onus and allow him more time and opportunity to convince her otherwise.
[55]
I
think the jurisprudence supports the conclusion that, in this kind of
situation, there was no obligation on the Officer to bring her concerns to the attention
of the Applicant and allow a response. There were no problems with the
evidence. The Officer’s concerns were that, given the evidence put forward by
the Applicant and, in particular, the Applicant’s failure to explain fully why
his education required a move to Canada and could not be obtained where he was
in the UK, she was not satisfied he would leave at the end of his stay. I do
not think the Officer was obliged to alert the Applicant to her conclusions
based upon her weighing of the evidence and provide him with a chance to change
her mind.
[56]
I
can understand why the Applicant is unhappy with the Decision. I can understand
why he feels he submitted strong evidence that he would leave at the end of his
stay, and that the Officer should have preferred that evidence to the factors
she does rely upon. However, it is not my role to step in and second-guess the
Officer. Parliament has said that she is the one whose discretion is to apply
and, provided she exercises that discretion in a reasonable way, the Court
cannot intervene, even if it would have come to a different conclusion.
[57]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”