Date: 20090504
Docket: IMM-1857-08
Citation: 2009 FC 447
Ottawa, Ontario, May 4,
2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
MIMOSE
DORET
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In this
application for judicial review, Mimose Doret is seeking to have the visa
officer’s decision refusing her application for a temporary resident visa,
dated February 6, 2008, set aside. Throughout these proceedings, Ms. Doret,
who lives in Haiti, has had minimal involvement,
to the point where we can wonder whether she sincerely wants to challenge the
visa officer’s decision. For this reason, and because I find that the decision
to refuse the visa application was neither unreasonable nor tainted by any
breach of procedural fairness or natural justice, I am of the view that this
application for judicial review must be dismissed.
THE FACTS
[2]
Ms. Doret
is a citizen of Haiti and is currently 33 years
old. On February 26, 2008, she applied for temporary residence for a
three-month stay in Canada. The reason for her trip was
to come and visit Canada and Quebec following her engagement to Christian
Savard, which apparently took place on February 16, 2008. The visa application
was submitted with a sworn statement by Mr. Savard dated January 7, 2008, in
which he promised to cover the costs of the trip and his fiancée’s living and
other expenses during her stay in Canada.
[3]
According
to her curriculum vitae, submitted in support of Mr. Savard’s affidavit, Ms.
Doret held several jobs following her vocational training to become an
esthetician in 2003-04: in particular, she worked in the advertising
section of a daily newspaper in Haiti,
and also as a waitress in a restaurant. Between 2006 and 2008, she returned to
school to take a secretarial course.
[4]
In her
visa application form, she indicated that she had never travelled outside her
country. Two of her sisters live in Quebec City.
[5]
Ms. Doret
also submitted, in support of her visa application, a fiscal identity card from
Haiti’s Direction générale des impôts attesting that she had
discharged her financial obligations to the state, as well as a bank statement
showing an amount of roughly $23 CDN.
[6]
The very
same day on which she submitted her visa application, the applicant received a
negative response from the visa officer. In the refusal letter, the visa
officer justified her refusal by checking off the box indicating that she was
not convinced Ms. Doret would leave Canada
at the end of her stay as a temporary resident.
[7]
The
officer also indicated, checking the appropriate boxes, the factors she had
taken into consideration in making this decision. There were four factors:
a. The applicant’s previous trips
b. Her family ties in Canada and in her country of
residence
c. Her current employment
situation
d. Her financial situation.
PRELIMINARY REMARKS
[8]
The
application for leave and judicial review of the visa officer’s decision was
initially submitted jointly by Mimose Doret and Christian Savard on April 21,
2008. At the time, the respondent objected to Mr. Savard acting as applicant,
since he was under no obligation to make an application for a temporary visa to
be admitted to Canada. In a motion to the Court
for directions, filed on June 19, 2008, in accordance with Rules 4, 54, 359 and
369 of the Federal Courts Rules, SOR/98-106, the
respondent also asked the Court for directions as to whether Mr. Savard could
represent Ms. Doret in her application for judicial review. Relying on section
119 of the Federal Courts Rules and on section 11 of the Federal
Courts Act, R.S.C. 1985, c.
F-7, the
respondent argued that since Mr. Savard was not a solicitor, he could not
represent Ms. Doret before the Court.
[9]
In a
decision dated July 28, 2008, Prothonotary Morneau sided with the respondent
and ordered that Mr. Savard be removed as an applicant in the case at bar. He
also found that Mr. Savard could not act as Ms. Doret’s representative.
[10]
Ms. Doret
and Mr. Savard filed an appeal of that decision, which I heard in Quebec City on August 21, 2008. In a
decision rendered four days later, I upheld the prothonotary’s decision. With
regard to the possibility of Mr. Savard representing Ms. Doret, I indicated in
my order that the application for leave could proceed, based on the record
already on file. At the same time, however, I allowed Ms. Doret to submit a
new motion to be represented by Mr. Savard, in the event that her application
for leave was allowed.
[11]
The
application for leave having been allowed by my colleague Justice Shore on January 6, 2009, Ms. Doret
availed herself of the opportunity offered in my order dated August 25, 2008,
to present a motion seeking to allow Mr. Savard to represent her during the
hearing of her application for judicial review. This motion was submitted to
me on March 18, 2009, in Quebec
City.
Mr. Savard once again argued that exceptional circumstances called for an
exception to Rule 119, given that the applicant did not have the means to have
herself represented by counsel and that she could not represent herself before
the Court. He also argued that he did this out of a sense of dignity and
personal reputation and that there were no other reasonable and effective ways
to assert Ms. Doret’s rights, while at the same time indicating that he
was not ready to invest his own money to pay for legal representation for [translation]
‘‘someone he barely knew’’.
[12]
It is
true that this Court has an inherent discretion allowing it to authorize a
party to be represented by someone who is not a solicitor, when it is necessary
in the interests of justice. However, such is not the case here. Although Ms.
Doret cannot enter Canada, she could have retained and
instructed legal counsel so as to have her case heard before the Federal Court.
She could also have looked into the possibility of having her case heard by
conference call.
[13]
On the
contrary, and as was previously mentioned, Ms. Doret’s appearances before this
Court have been very few. The application for judicial review is signed solely
by Mr. Savard, and the only affidavit filed in support of this application is
also Mr. Savard’s. The same holds true for the notice of motion filed against
the prothonotary’s decision, as well as the affidavit filed in support of that
motion. The only documents apparently bearing Ms. Doret’s signature consist of
a very brief affidavit, filed as an exhibit to Mr. Savard’s affidavit (in which
Ms. Doret simply states that she is one of the applicants in the application
for leave and that all of the facts alleged in the application are true), and a
document entitled ‘‘Applicants’ Request for a Hearing’’ (in which she argues
that Mr. Savard has the required standing to act as a co-applicant, following
the motion for directions filed by the respondent).
[14]
Moreover,
the notice of motion filed by Mr. Savard for authorization to represent Ms.
Doret is not properly signed by Ms. Doret. On it there is only Ms. Doret’s
name written in block letters, beside which is written ‘‘(e-signature) Original
to follow’’, and Ms. Doret’s e-mail address. Three weeks after the hearing,
Mr. Savard also sent the Court a letter that Ms. Doret had apparently tried
-unsuccessfully- to send to the Court by e-mail, in which she stated that she
was unable to retain counsel due to a lack of financial resources, and that she
understood I would be rendering a decision on her application for judicial
review on the basis of the records already submitted. She added that, if the
Court were to allow the respondent to make additional submissions, she wished
that Mr. Savard would be allowed to represent her.
[15]
While I am
not able to speculate on Ms. Doret’s true intentions or on the veracity of
Mr. Savard’s statements to the effect that Ms. Doret was unable to
communicate directly with the Court by e-mail, I must conclude that there is
very little evidence in the record attesting to Ms. Doret’s willingness to
pursue her application for judicial review before this Court. In any event,
and regardless of this question, in my opinion, Mr. Savard has not succeeded in
showing that exceptional circumstances call for departing from the principles
established by section 119 of the Federal Courts Rules.
ISSUE
[17]
Ms. Doret
raised two arguments in her written submissions. The first is that the visa
officer had erred by refusing to issue a temporary resident permit to the
applicant. The second is that there was a breach of the rules of natural
justice when the officer refused to meet with her or interview her.
ANALYSIS
[18]
Individuals
requesting authorization for a temporary stay in Canada must show that they will comply with the
requirement to leave the country at the end of the period authorized for the
stay. The statutory framework applicable to the case at bar can be found in
subsection 11(1), in paragraph 20(1)(b) and in subsection 22(1) of the Immigration
and Refugee Protection Act, S.C.
2001, c. 27 (the “Rules”) as well as in sections 179, 191 and 193
of the Immigration and Refugee Protection Regulations, SOR/2002-227. For
easier reference, these provisions are reproduced here:
|
Part 9
Temporary Resident
Division 1
Temporary Resident Visa
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.
PART 10
VISITORS
Class
191. The visitor class is
prescribed as a class of persons who may become temporary residents.
Conditions
193. A visitor is subject to the conditions imposed
under Part 9.
|
Partie 9
Résidents
temporaires
Section 1
Visa de
résident temporaire
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.
PARTIE 10
VISITEURS
Catégorie
191. La catégorie des visiteurs est une catégorie réglementaire de
personnes qui peuvent devenir résidents temporaires.
Conditions
193. Les
visiteurs sont assujettis aux conditions prévues à la partie 9.
|
[19]
The visa
officer’s decision to issue a temporary resident visa is discretionary in
nature. For this reason the Court must show considerable deference in a
judicial review. In this case, the applicant is challenging the visa officer’s
finding that she was not convinced the applicant would leave Canada at the end of her stay as a
temporary resident. That is an eminently factual question, to which the
standard of reasonableness must apply. This is to say that the Court must not
intervene unless the decision does not fall within a ‘‘range of possible,
acceptable outcomes which are defensible in respect of the facts and law’’ (Dunsmuir
v. New
Brunswick,
2008 SCC 9, at paragraph 47).
[20]
As for the
argument based on the lack of an interview, it must be reviewed on a standard
of correctness. In fact, it is well established that a breach of the
principles of natural justice or procedural fairness normally results in the
decision being set aside: see, in particular, Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221; Sketchley
v. Canada (Attorney General), 2005 FCA 404.
[21]
The visa
officer needed to be satisfied that the applicant would leave Canada at the end of the authorized
period before issuing her a temporary resident visa. The onus was on the
applicant to prove that she would leave Canada at the end of the period for
which she was authorized to stay in Canada.
As Justice Lagacé recently noted in Obeng v. Canada (Minister of Citizenship and
Immigration),
2008 FC 754, at paragraph 20:
There is a legal presumption that a foreign national seeking
to enter Canada is presumed to be an
immigrant, and it is up to him to rebut this presumption. It was therefore up
to the applicant, in the present instance, to prove to the visa officer that he
is not an immigrant and that he would leave Canada at the end of the authorized period that
he requested. (Danioko v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 578, 2006 FC 479, Li v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 791, [2001] F.C.J. No. 1144,
paragraph 37).
[22]
The visa
officer examined the applicant’s financial situation and employment history,
her family ties in Canada and in her home country, and her previous lack of
travel, in order to determine if the evidence in the record was sufficient to
establish, on a balance of probabilities, that the applicant would leave Canada
at the end of the period authorized for the stay. Her decision appears to me
to be entirely reasonable and certainty does not seem to be based on any
erroneous finding of fact, made in a perverse or capricious manner or without
regard for the material before her (Federal Courts Act, paragraph
18.1(4)(d)).
[23]
Regarding
the applicant’s financial situation, the visa officer noted that she had little
money. According to the case law, a visa applicant’s poor financial means is a
significant and relevant factor which the visa officer may take into account
when assessing the probability of a visa applicant returning to his or her
country when his or her visa expires (see, among others: Duong v.
Canada (Minister of Citizenship and Immigration), 2003 FC 834; Toor
v. Canada (Minister of Citizenship and Immigration), 2006 FC
573). If we add this to the fact that the applicant was not working and that
she had been studying since 2006, it was certainly not unreasonable for the
officer to find as she did.
[24]
The second
factor taken into consideration by the visa officer was the applicant’s family
ties, both in Canada and her country of origin.
The visa officer was obliged to verify whether the applicant’s family ties in
her country of origin were strong enough to ensure that she would have the
motivation to return home after her visit to Canada. While noting that some of Ms. Doret’s
family lived in Haiti, the officer was of the view
that her ties to Canada, given that her fiancé and two of her sisters lived
here, were strong enough for the officer to determine that she would not leave Canada at the end of her stay.
While this inference might be disputed, it does not strike me as being
unreasonable, given the facts that were brought to the officer’s attention.
[25]
Finally, I
do not find it unreasonable to consider that the fact that the applicant had
never left her country before could be a relevant factor. As the visa officer
explained in her affidavit, the fact of having previously travelled and
returned to her country could be an indication that the applicant would act the
same way on her subsequent trips.
[26]
Of course
none of these factors, taken in isolation, would be determinative. However,
taken together, they were certainly likely to lead the officer to arrive at the
finding she did. Neither the applicant’s brief affidavit nor the memorandum
prepared by Mr. Savard would point to any error in the visa officer’s
assessment of the case. Simply being in disagreement with the assessment of a
case is clearly not sufficient to demonstrate that the visa officer erred or
acted unreasonably.
[27]
Lastly,
the officer was under no obligation to grant the applicant an interview. The
visa officer explained in her affidavit that she had not called the applicant
for an interview because all the elements she needed to reach a decision were
on hand. Moreover, the applicant had not asked her to do this. Given the information
provided by the applicant in support of her visa application, the officer could
effectively reach a decision without needing to obtain additional information
through an interview. In this respect I agree with the reasoning of my
colleague Justice Kelen when he wrote the following in Berganovic v. Canada (Minister of Citizenship and
Immigration), 2004
FC 359, at paragraph 18:
[…] It would be an unfair advantage to schedule interviews
for persons who have failed to complete their applications, and a waste of time
and resources to attempt to assess an application on eligibility grounds, based
on incomplete information.
See also, in a similar vein:Dardic v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 150, [2001] F.C.J. No. 326; Lam v. Canada (Minister of Citizenship and
Immigration),
(1998), 152 F.T.R. 316.
[28]
For all
these reasons, I am of the view that this application for judicial review must
be dismissed.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed.
‘‘Yves
de Montigny’’
Certified
true translation
Sebastian
Desbarats, Translator
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