Date: 20090401
Docket: IMM-4028-08
Citation: 2009 FC 336
Ottawa, Ontario, April 1, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
IFEANYI
CHIBUEZE ONYEKA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
an Officer of Citizenship and Immigration Canada (Officer), dated July 14, 2008
(Decision) refusing the Applicant’s application for a study permit.
BACKGROUND
[2]
The
Applicant is a citizen of Nigeria, born July 15, 1976. At
the time of his application for a study permit he held a Master of Metallurgy
degree from the University of Sheffield and was working as a Metallurgical
Engineer in Lagos,
Nigeria.
[3]
The
Applicant has applied for a study permit to Canada on six different occasions at
the Canadian Deputy High Commission (CDHC) in Lagos, Nigeria. He has been
admitted into three separate Masters and Ph.D. programs in Canada and has been
offered scholarships to attend each of them. He has either been refused a
permit, or had his application returned unprocessed, on all six occasions. The
refusal reasons have varied from saying that he did not have sufficient funds,
was not a genuine student, or that he would not return to Nigeria after
completing his studies. The Applicant says he was unaware that he could appeal these
decisions because his refusal letters said he could not.
[4]
The
last time the Applicant applied for a study permit was May 2008. This study
permit was for a two-year Masters of Science degree at the Department of
Mechanical Engineering at the University of Saskatchewan, with the
possibility of a transfer to the PhD program after the first year.
[5]
The
Applicant was offered $1000 per month for the two-year program. As well, he
could obtain a teaching assistant position worth approximately $3000 per year.
The Applicant was also eligible to be nominated for a university scholarship
worth $3000 per year if approved. The Applicant’s estimated living and tuition
expenses were $925 per month. The Applicant also had personal savings in Nigeria equivalent
to approximately $10,526 Canadian dollars.
DECISION UNDER REVIEW
[6]
The
Officer held that the Applicant did not have adequate funds available to him to
pay for his tuition and living expenses while in Canada and to return to his
country of residence. Also, the Officer was not convinced that the Applicant
would leave Canada by the end
of the period authorized for his stay.
[7]
In
the Officer’s CAIPS notes, it is noted that the Applicant was single, had no
dependents and had a low paying job.
ISSUES
[8]
The
Applicant submits the following issues on this application:
1)
What
is the standard of review?
2)
Was
the Decision unreasonable because the Officer disregarded or misconstrued the
evidence in finding:
i.
The
Applicant did not have sufficient funds to support his studies, and
ii.
The
Applicant would not leave Canada at the end of his studies?
3)
Did
the Officer err by failing to consider dual intent?
4)
Was
the process unfair because:
i.
The
Applicant was never given an opportunity to address the concerns of the Officer;
and
ii.
The
Applicant was led to believe he had no appeal rights?
5)
Should
costs be awarded to the Applicant?
STATUTORY PROVISIONS
[9]
The
following provisions of the Act are applicable in this proceeding:
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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;
219. (1) Subject
to subsection (2), a study permit shall not be issued to a foreign national
unless they have written documentation from the educational institution at
which they intend to study that states that they have been accepted to study
there.
220. An
officer shall not issue a study permit to a foreign national, other than one
described in paragraph 215(1)(d) or (e), unless they have
sufficient and available financial resources, without working in Canada, to
(a) pay the tuition fees for the course or program of studies
that they intend to pursue;
(b) maintain themself and any family members who are accompanying
them during their proposed period of study; and
(c) pay the costs of transporting themself and the family members
referred to in paragraph (b) to and from Canada.
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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.
219. (1) Le permis d’études ne peut
être délivré à l’étranger que si celui-ci produit une attestation écrite de
son acceptation émanant de l’établissement d’enseignement où il a l’intention
d’étudier.
220. À l’exception des personnes visées aux
sous-alinéas 215(1)d) ou e), l’agent ne délivre pas de permis
d’études à l’étranger à moins que celui-ci ne dispose, sans qu’il lui soit
nécessaire d’exercer un emploi au Canada, de ressources financières
suffisantes pour :
a) acquitter les frais de scolarité des cours qu’il a
l’intention de suivre;
b) subvenir à ses propres besoins et à ceux des membres de
sa famille qui l’accompagnent durant ses études;
c) acquitter les frais de transport pour lui-même et les
membres de sa famille visés à l’alinéa b) pour venir au Canada et en
repartir.
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STANDARD OF REVIEW
[10]
The
Applicant and Respondent submit that the Decision of a visa officer in a study permit
application is based on mixed fact and law and the standard of review in light
of Dunsmuir v. New Brunswick 2008 SCC 9 (Dunsmuir) is reasonableness.
See also: Odewole v. Canada (Minister of Citizenship of Immigration), [2008] F.C.J. No. 887
(F.C.) and Ji v. Canada (Minister of Citizenship and Immigration), [2008]
F.C.J. No. 744 (F.C.).
[11]
The
Applicant and Respondent also agree that on issues of procedural fairness or
natural justice the correctness standard applies: Dunsmuir at paragraphs
58-60 and 129; Bonilla v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J.
No. 14 (F.C.) and Saleem v. Canada (Minister of Citizenship and Immigration)
2008 FC 389 at paragraph 11.
[12]
The
Respondent notes that the discretionary decisions of visa officers have
attracted a high degree of deference in the past and that such deference
continues to be appropriate: Dunsmuir at paragraph 53; Li v. Canada
(Minister of Citizenship and Immigration) 2001 FCT 837 at paragraph 11; Bellido
v. Canada (Minister of Citizenship and Immigration) 2005 FC 452 at
paragraph 5; and Hua v. Canada (Minister of Citizenship and Immigration) 2004
FC 1647 at paragraphs 25-28 (Hua).
[13]
The
Respondent also submits that an application for a study permit gives rise to a
discretionary decision on the part of the decision-maker, which requires it to
be made on the basis of specified statutory criteria. Where the statutory
discretion has been exercised in good faith and, where required, in accordance
with the principles of natural justice, and where reliance has not been placed
upon considerations irrelevant and extraneous to the statutory purpose, the
court should not interfere: To v. Canada (Minister of Employment and
Immigration), [1996] F.C.J. No. 696 (F.C.A.).
[14]
The
Respondent points out that an officer’s assessment of whether to grant
temporary resident status is an exercise of discretion that attracts a high
degree of deference. The standard of review is one of reasonableness. The duty
of the decision-maker is to accord proper consideration to any application, but
an officer is not required to issue a temporary resident visa unless he/she is
satisfied that the applicant has met the legislative requirements. See: Hua and
De La Cruz v. Canada (Minister of Employment
and Immigration),
[1989] F.C.J. No. 111 (F.C.T.D.).
[15]
In Dunsmuir, the Supreme
Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[16]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the 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.
[17]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the issues raised, with the exception of procedural fairness, is
reasonableness. 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”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene 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.”
ARGUMENT
The Applicant
Financial Resources
[18]
The
Applicant submits that the Officer’s Decision was unreasonable because the
Officer ignored, disregarded or misconstrued the evidence. The Applicant says
that he provided solid evidence that the University of Saskatchewan would provide him with
sufficient funding to allow him to pursue his studies there. As for his travel
expenses, the Applicant had savings to defray the cost of a return ticket to Nigeria.
[19]
The
Applicant says that, based on the Officer’s CAIPS notes, the Officer based his
findings on the assumption that the (1) funding of $12,000 was conditional on
the Applicant’s academic performance, and that (2) the only other funding
available to him was from his work. However, the Applicant contends that the
Officer ignored the evidence that, although the $12,000 was conditional on
academic performance, the professor who extended the offer to the Applicant did
not foresee any difficulty in the way of the Applicant meeting the requirements
for funding.
[20]
In
relation to the teaching assistant position, the Applicant explains that this
is not considered “work” so much as an integral part of any graduate program of
study. As well, the Officer completely ignored the other $3000 the Applicant
could be given through a university scholarship and the fact that he had significant
savings. Therefore, the Applicant states that the Officer’s assessment of the
evidence ignored or misconstrued the facts and was unreasonable: Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.).
Not Leaving Canada after
Completing Studies
[21]
The
Applicant submits that the Officer’s finding that the Applicant would not leave
Canada at the end of his
studies was based on vague and irrelevant facts that disregarded the evidence.
The Officer arrived at his conclusion because the Applicant was single, had no
children and had a low paying job. These facts apply to the vast majority of
students. The Applicant states that these factors do not establish that the
Applicant would not leave Canada at the end of his studies.
[22]
The
Applicant also points out that the Officer ignored the fact that the
Applicant’s family were all in Nigeria or the UK, and that the Applicant has no family in Canada. As well, the
Applicant’s earnings were not low by Nigerian standards. The Officer also did not
specify what factors would motivate the Applicant to remain in Canada. The
Applicant submits that the Officer’s assessment of the evidence was
unreasonable and that the Decision should be quashed. See: Ogbonnaya v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 387 (F.C.); Dang
v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J.
No. 13 (F.C.); Ji v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J.
No. 744 (F.C.); Wang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J.
No. 351 (F.C.T.D.) and Zhang v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 1885 (F.C.).
Dual Intent
[23]
The
Applicant further submits that, in considering whether he would leave Canada at
the end of his studies, the Officer failed to consider dual intent. The Act provided
as follows:
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22. (1) A foreign national becomes a temporary resident if an officer is
satisfied that the foreign national has applied for that status, has met the
obligations set out in paragraph 20(1)(b) and is not inadmissible.
(2) An intention by a foreign national to become a permanent resident
does not preclude them from becoming a temporary resident if the officer is
satisfied that they will leave Canada by the end of the period authorized for their stay.
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22.(1) Devient résident temporaire l’étranger dont
l’agent constate qu’il a demandé ce statut, s’est déchargé des obligations
prévues à l’alinéa 20(1)b) et n’est pas interdit de territoire.
(2) L’intention qu’il a de s’établir au Canada n’empêche
pas l’étranger de devenir résident temporaire sur preuve qu’il aura quitté le
Canada à la fin de la période de séjour autorisée.
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[24]
This
means that, even if the Officer had concerns as to whether the Applicant might
hypothetically have the intention of remaining in Canada permanently, such
intent was not a barrier to his entry as a temporary resident/student provided
he would leave Canada at the end of his authorized stay. Recent changes to the
immigration legislation regarding post-graduate work, permits for students, and
the creation of the Canada Experience Class demonstrate that immigration
authorities actually encourage foreign students to remain in Canada
permanently. Therefore, the concern is not whether or not a student visa
applicant will want to obtain permanent residence in Canada, but whether they will
remain in Canada illegally without status or beyond their authorized stay.
There was no evidence before the Officer that the Applicant would remain in Canada illegally.
[25]
The
Applicant concludes on this issue that the failure of the Officer to address
these issues and his rejection of the Applicant on the basis that he would not
leave Canada at the end of his authorized stay was a legal error: Odewole
and Dang.
Unfair Decision
[26]
The
Applicant also submits that the Officer had a duty to give the Applicant an
opportunity to respond to the Officer’s concerns, and that the failure to do so
renders the Decision unfair. There was no way that the Applicant could foresee
that the Officer would refuse his application on the basis that he was single,
had no children and was employed in a low-paying job. So he could not address these
matters in his application. The Applicant relies upon Bonilla at
paragraph 25:
The Federal Court has held that visa officers
may not base their decisions upon stereotypes or generalizations, without
allowing the applicant to respond. Mr. Justice Kelen stated the following in Yuan,
see above, at paragraph 12:
While the duty of fairness does not necessarily
require an oral hearing, there is a requirement that the visa officer provide
the applicant with an opportunity to address a major concern, in other words,
respond. The fact that the visa officer is of the opinion that there are many
visa applicants from this location in China who apply for refugee status upon
receiving the visa is not a fair or reasonable basis to dismiss all applicants
from that region without providing a fair opportunity for the applicant to
respond to this concern.
[27]
In
the present case, the Officer relied on a generalization that single people
without children and with low-paying jobs do not leave Canada at the end of their
studies. In order to meet the duty of fairness, the Officer should have given
the Applicant an opportunity to respond, either by conducting an interview or by
sending the Applicant a letter listing his concerns and giving him an
opportunity to address them: Wang v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 351 (F.C.). The failure of the
Officer to do so is contrary to fairness and is a reviewable error.
[28]
The
Applicant also submits that he has been treated unfairly by the visa officer in
Lagos, Nigeria because his refusals
have repeatedly contained the following:
Your
application is refused and closed. There is no right of administrative appeal
against this decision.
[29]
The
Applicant understood this to mean that he had no right of appeal and so he kept
re-applying. He only found out about his right to appeal after finding the
information on his current counsel’s website. Had he known earlier, he would
have appealed before. The Applicant argues that the misleading information on
the refusal letters is a serious breach of procedural fairness because it
prevents those rejected by the immigration authorities in Lagos from exercising their
rights under the Act to seek judicial review. Therefore, the Court should
overturn this Decision and direct the Respondent to remove such statements from
its refusal letters and postings at visa offices.
Costs
[30]
The
Applicant submits that the errors made by the Officer in this case were
egregious and justify awarding him costs. The reasons for the Decision are
highly deficient and indicate the Officer treated the decision-making process
in a “cavalier manner.” The Applicant applied for a student visa six times and
was refused for no apparent reason.
[31]
The
Applicant says that this application raises serious issues of fairness,
including misleading information regarding his appeal rights. Under the
circumstances, it is appropriate that the Respondent pay the costs of the
litigation that has been incurred as a result of the failure of the Officer to
make a proper Decision. See: Johnson v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1523 (F.C.).
[32]
The
Applicant disagrees with the Respondent’s assertion that deference is owed to
discretionary decisions. The Applicant submits that there should not be any
special deference given to the decision of a visa officer in a student visa
decision.
[33]
The
Applicant also submits that the Respondent has misunderstood the facts and that
the guarantee money the Applicant would receive from the professor at the University of Saskatchewan was
enough to pay his living expenses. The teaching assistant salary and
scholarship money were not speculative but were reasonably obtainable.
Regardless, the Applicant was not relying upon them. The Applicant had other sufficient
funding.
[34]
In
relation to the dual intent argument, the Applicant says that the Respondent
has failed to explain on what basis the Officer arrived at his conclusion,
unless he found that the Applicant would not leave at the end of his stay based
on the finding that the Applicant would apply for permanent residence.
The Respondent
Financial
Resources
[35]
The
Respondent submits that the Officer’s Decision was not unreasonable based on
the evidence before him. The Applicant’s ability to pay and maintain himself
during his course of study was dependent on obtaining a teaching assistant
position and obtaining a scholarship from his intended institution. It was
completely reasonable for the Officer to deny the application because there was
insufficient proof of existing funds. The Applicant’s funds were entirely
speculative.
Applicant Misapplies the
Principal of Dual Intent
[36]
The
Respondent also submits that the Officer should not have considered dual intent
when assessing the study permit application. The Officer did not assess the
Applicant on the basis of an intention to establish permanent residence. The
Officer made the Decision based on the Applicant’s insufficient funds and the
Applicant’s lack of strong ties to his country of citizenship. The Respondent
cites Odewole at paragraph 16 for the following:
The Officer was not dealing with the family application for
permanent residence, and the issue of dual intent arose only in relation to
that application. The application for permanent residence was an irrelevant
consideration for the purposes of the applicant's application for a Canadian
study permit.
The Decision was Not Unfair
[37]
The
Respondent submits that there is no general requirement for a decision maker to
advise an applicant of any concerns as they arise. The Respondent relies upon
Lu v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 579 (F.C.T.D.) at
paragraph 11:
…The
applicant submits that the visa officer should have asked the applicant to
provide all missing documents. Again, I disagree. An applicant bears the burden
of providing the necessary information to satisfy the visa officer that he or
she meets certain criteria to enter Canada (Kong, supra at para.
21). This is made clear by the guidelines provided in the Application Kit for a
student authorization which states that an applicant must provide all
supporting documents for his or her application. Furthermore, contrary to the
applicant's contention, the duty of fairness did not require the visa officer
to conduct an interview. As stated by Teitelbaum J. in Ali v. M.C.I., (1998) 151
F.T.R. 1, there is no statutory right to an oral interview.
[38]
The
Respondent points out that this Court has specifically held that the requirements
of the duty of fairness are relaxed in the cases of student authorizations, and
there is no obligation on an officer to advise an applicant of every concern: Li
v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1144 (F.C.T.D.) (Li);
Wen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1262 (F.C.T.D.) (Wen)
and Skoruk v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1220 (Skoruk).
[39]
The
Respondent concludes on this issue by stating that the Officer’s reasons are
not unreasonable. A decision to grant a study permit is highly discretionary
and based on the evidence. The Decision to refuse the Applicant’s application
for a study permit was reasonable.
Previous Decisions Not
Under Review
[40]
The
Respondent submits that the Applicant has made several references to his
previously refused applications; however, only one decision is being
challenged. As well, the Applicant’s arguments that he was misled by the
wording on the refusal letter do not constitute a breach of natural justice.
The Applicant is responsible for his own knowledge of the law and there is no
obligation on the Respondent to advise him of his legal rights.
[41]
The
Respondent says there is no error in this Decision simply because the Applicant
has amassed a significant number of refusals. If any application is deficient
or lacking in some aspect, it will be refused. Nothing can be made of the
number of refusals that the Applicant has received.
No Special Reasons
Warranting Costs
[42]
The Respondent submits that the Applicant has failed to establish
special reasons warranting costs. The Respondent relies upon Rule 22 of the Federal
Court Immigration and Refugee Protection Rules, SOR/93-22 (Rules):
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22. No
costs shall be awarded to or payable by any party in respect of an
application for leave, an application for judicial review or an appeal under
these Rules unless the Court, for special reasons, so orders.
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22. Sauf ordonnance contraire rendue par un juge pour des
raisons spéciales, la demande d’autorisation, la demande de contrôle
judiciaire ou l’appel introduit en application des présentes règles ne
donnent pas lieu à des dépens.
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[43]
The Court has held that this rule displaces the broad discretion
as to costs under Rule 400 of the Rules: Xiao v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 731 at paragraph 13
(F.C.T.D.) and Chen v. Canada (Minister of Citizenship and
Immigration), [1999] F.C.J. No. 780 at paragraph 34 (F.C.T.D.).
[44]
The
Respondent states that costs have been awarded in cases where special reasons
for awarding costs arise as a result of the conduct of the litigation or bad
faith conduct on behalf of a party. In Koo v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 732 at paragraph 20
(F.C.T.D.) it was noted that “special reasons exist when a case which ought
not to be brought before this Court is nonetheless commenced or continued
despite clear signs that it is frivolous.” The Respondent also cites Zheng v.
Canada (Minister of Citizenship and Immigration) 2003 FCT 54 at paragraphs
13-14:
The applicant seeks costs in the amount of
legal fees of $6,600. plus examination expenses. It is urged that special
reasons warrant costs in this case, as required by Rule 22 of the Federal
Court Immigration Rules. Those special reasons are said to be payment of “a
double non-refundable fee” to attend the immigrant-visa interview, the
erroneous assessment of the applicant by improperly disallowing or ignoring his
financial assets, failing to properly assess him in accord with the Act and
Regulations, and failing in a duty to consider the exercise of positive
discretion in accord with s. 11(3) of the Regulations. As I have noted the last
of these is a discretionary authority vested exclusively in the Minister.
While each of the other alleged failings may
provide a basis for setting aside a decision, in my opinion they do not,
individually or collectively, constitute special reasons within Rule 22 of the
Immigration Rules, for an award of costs, in the absence of any finding of bad
faith on the part of the respondent or his representative.
[45]
The
Respondent also notes Johnson v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1262 at paragraphs 27 which makes it
clear that “The fact that a tribunal has made a mistake does not by itself
constitute a special reason for costs.” Therefore, the Respondent concludes
that the Applicant has failed to establish any special reason as to why costs
should be awarded in this matter. There is no evidence of dereliction of duty
or bad faith before the Court.
ANALYSIS
[46]
While
I accept the Respondent’s position that the Decision attracts a high degree of
deference from the Court, the exercise of discretion in this case approaches
the arbitrary and capricious.
[47]
The
refusal of a study permit is based upon two grounds. One is that the Applicant
did not satisfy the Officer that he would leave Canada at the end of the
authorized stay. The reasons given for this are as follows:
Applicant
is single, has no dependant, low paid job. Considering PA’s ties to Nigeria balanced against factors which might motivate to stay in
Canada, I am not satisfied PA would leave the country at the end of an
authorized stay.
[48]
I
can see some connection between being single and having no dependents and the
issue of whether, under Regulation 216(1)(b), the Applicant will leave Canada at the end of the
authorized period. These factors, however, merely place the Applicant in the
position of most students applying for study permits. The Applicant has no
family connections in Canada; his family is in the U.K. or Nigeria, and he has
a highly responsible job in Nigeria. The Officer does give reasons – being single and having no
dependents – but these reasons are hardly sufficient to amount to a reasonable
exercise of discretion when the other factors are taken into account. There is
simply nothing on the facts to suggest that the Applicant is not a bona fide
student or that he would stay in Canada illegally at the end of the authorized period.
See Ogbonnaya at paragraphs 16-17.
[49]
More
significant, however, is the Officer’s approach to the other ground of refusal:
“You have not satisfied me that you have adequate funds available to you to pay
for your tuition and living expenses while in Canada and to return to your
country of residence.”
[50]
In a
letter dated December 19, 2007 from Dr. Qiaoqin Yang, Associate Professor and
Canada Research Chair in the College of Engineering at the University of
Saskatchewan, the Applicant has confirmed financial support of $12,000 per year
as well as assurances that the Department makes available $3000 per year in the
form of a “teaching assistant” payment for graduate students with the
Applicant’s qualifications. These monies alone would give the Applicant $15,000
per year to meet what Dr. Yang confirms is a $925 per month average tuition and
living cost.
[51]
Dr.
Yang also pointed out that the Applicant would be nominated for a University
scholarship, which would bring him up to $18,000 per year.
[52]
I can
accept that the nomination for a $3000 University scholarship creates a
contingency that cannot be relied upon; but the evidence makes clear that the
$15,000 per year is firm enough and this alone would appear to suffice for
tuition and living expenses.
[53]
In
addition to this sum, however, the Applicant also provided evidence of personal
savings in Nigerian currency that translated into about $10,526 Canadian at the
time of the application for a permit. The Officer, for no apparent reason,
simply disregards this money.
[54]
This
renders the Decision incomprehensible. Reasons are given but they appear
entirely arbitrary in light of the evidence that was before the Officer. The
well-known principles enumerated by Justice Evans in Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 render this Decision
unreasonable.
[55]
Over
and above these errors, however, the Applicant also says that the Decision was
unfair in various ways.
[56]
The
Applicant says that it was unfair of the Officer not to give him an opportunity
to respond to the concern that he would not return to Nigeria because he was
single and had no dependents, and had a low paying job in Nigeria.
[57]
It
is well established that visa officers are generally not required to provide
applicants with opportunities to clarify or further explain their applications.
See, for example, Li v. Canada (Minister of Citizenship and Immigration) 2001, 208 F.T.R. 294.
[58]
I
have carefully reviewed the facts of this case and I cannot find that it falls
into any of the established exceptions to this general principle, even the
stereotyping issue that arose in Bonilla. In the present case, the
Officer simply failed to provide an acceptable rationale for his conclusions
and left significant facts out of account.
[59]
Also,
I cannot find unfairness on the basis of the words that appeared in the
Applicant’s refusal letters:
Your
application is refused and closed. There is no right of administrative appeal
against this decision.
[60]
The
Applicant has provided an affidavit in which he says that he thought he had no
way of appealing the consecutive refusals he received and so he went on
submitting new ones until he learned from his present counsel’s web-site that
he could apply for judicial review.
[61]
I do
not doubt that the Applicant’s mistake was genuine. But the statement concerning
no administrative appeal is, literally speaking, true, even if the Applicant
did not understand its full legal significance. Whether the statement is, in
context, misleading or not would depend upon many factors that are not before
me in this case, and there is just not sufficient evidence to suggest that the
Embassy in Lagos is using the statement to mislead applicants concerning their
rights or whether a fuller picture is available to any applicant who looks in
the right places.
[62]
In
any event, I have to agree with the Respondent on this point. The Applicant is
responsible for his own knowledge of the law and there is no obligation on the
Respondent to advise him of his legal rights. On the evidence before me, I
cannot say that the Embassy either deliberately or constructively misled the
Applicant concerning his legal rights.
[63]
This
further leads me to conclude that there are no “special reasons” for an award
of costs under Rule 22 of the Federal Court Immigration and Refugee
Protection Rules. I think this is a case where the Officer made a mistake
and got it wrong and this, in itself, is not sufficient to constitute a special
reason for costs. See Johnson at paragraphs 26-27.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is allowed and this matter is returned for reconsideration by a
different visa officer.
2. There is no
question for certification.
“James
Russell”
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