Date: 20090630
Docket: IMM-4908-08
Citation: 2009 FC 689
Ottawa, Ontario, June 30,
2009
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
FAYE RUDDER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and
Background
[1]
In
this judicial review application, Faye Rudder (the Applicant), a citizen of
Guyana and 53 years of age, challenges the September 19, 2008 decision made
by a Visa Officer (the Officer) at the Canadian Embassy located in Port of
Spain, Trinidad and Tobago, refusing her application for a temporary residence visa
in the visitor category (TRV) to enable her to come to Canada to visit her
relatives and to view the gravesites of her mother and her sister who have
passed away in 2003 and 2004.
[2]
This
is the Applicant’s second try at obtaining a TRV. Her first attempt failed when
her application was refused on May 15, 2008. The record shows, rather
than challenging the first decision, the Applicant whose visit was sponsored in
particular by her brother, Stan Shepherd, a new application would be filed
which would answer some of the concerns giving rise to the first refusal.
[3]
The
reasons for refusal of the two TRVs were as follows and are taken from the
Certified Tribunal Record (CTR). They are in the form of CAIPS notes.
[4]
The
basis of the May 15, 2008 refusal was as follows:
No travel.
To visit sisters, Wendy Rudder in Toronto and Bernadette Klass in Mississauga.
Subject has five siblings – all residing
in Canada.
Marital status not listed. Five children
in Guyana.
Letter from brother stated that siblings
in Canada support subject.
Subject not employed.
No funds of her own.
Refused – not a bf visitor. No Travel
history, not employed, no funds of her own. Children are all adults. Not
convinced subject is sufficiently established at this time. No compelling
ties to return.
[5]
The
reasons for refusing the visa on her second application were:
Family status:
-
Common-Law
-
5 children
-
All live
in Guyana
-
Family
non-accompanying
-
4 of 5
siblings in Canada, parents deceased
Travel history:
-
Old-style
passports – Guyana government says they are only
valid until 31-12-2009
-
Previous
TRV refusal
-
No
previous travel
Funds & Employment:
-
Housewife
– no income
-
Siblings
in Canada paying all expenses and letter
states they support her
Reasons for travelling to Canada:
-
To visit
siblings and mother’s grave site
No compelling reason to travel, and even
less to return
Source of funds is questionable
No credible proof of employment income
No travel history
I am not satisfied that this Applicant is
well enough established to ensure her return.
Application refused.
The Legislative and
Regulatory Scheme
[6]
The
Immigration and Refugee Protection Act (IRPA) and the Immigration
and Refugee Protection Regulations (IRPR) govern the status and
obligations of temporary residents who seek to enter into Canada for a
temporary purpose.
[7]
In
terms of IRPA, the following provisions apply to temporary residents:
· Subsection
22.(1) provides: “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”.
· Paragraph
20(1)(b) stipulates every foreign national who seek to enter and remain in
Canada must establish to become a temporary resident that they hold “the visa
or other document required under the regulations and will leave Canada by the end
of the period authorized for their stay”.
[8]
In
terms of IRPR, section 179 provides for the issuance of a TRV as
follows:
|
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.
|
|
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.
|
[9]
Reference
must also be had to OP-11 dealing with Temporary Residents issued by Citizenship
and Immigration Canada. It explains how an Officer should assess applications
for TRVs made by prospective visitors, workers and students and outlines the
criteria which prospective temporary residents must meet.
[10]
OP-11
makes it clear that an Officer “must not issue a TRV to a foreign national
unless satisfied the Applicant will leave Canada at the end
of the period authorized for their stay”. The Officer must be satisfied an Applicant
has the ability and willingness to leave Canada at the end
of the temporary period authorized.
[11]
Paragraph
9 of OP-11 is entitled “Procedure: Assessing the application”. It identifies
the areas officers should explore with Applicants for the purpose of
determining whether: (1) an Applicant intends to remain in Canada illegally, to
claim refugee status or otherwise seek to remain in Canada at the end of the
period authorized for their temporary stay; and, (2) the ties to their home
country are sufficiently strong to ensure that they are motivated to return
home after their visit to Canada.
[12]
Amongst
the areas to be explored are:
· The trip’s
purpose: What will the Applicant be doing in Canada? What are
the Applicant’s plans for visiting Canada? Are those plans well
thought out?
· The trip’s duration:
how long? Is the time definite? Is the time reasonable?
· Who invited
the person to Canada? Is there
proof of an invitation? What family does the person have in Canada? What is
their immigration status?
· What ties
does the Applicant have in his/her country of residence? Is the person
employed? What family does the person have there and where was the family at
the time of the application? What financial obligations is the person leaving
behind? Does the Applicant have property there? If so, what is its value? What
other responsibilities or obligations is the person leaving behind? How will
they be discharged?
· How will the
person support herself or himself in Canada? Is the person staying
in hotels or with relatives?
· Will the Applicant
be able to leave Canada? Does the person have the financial ability to
return to his/her country of residence such as an airplane ticket?
· Is there an
impediment to entering Canada such as a criminal record or a serious
medical condition?
· Has the
person ever been refused a TRV to travel to Canada?
Facts
[13]
In
her second application for a TRV, dated September 3, 2008, the Applicant
provided the following information:
1) She is the
common law spouse of Philip Douglas and this for the last 30 years.
2) She has four
daughters and one son, three of whom are living at home.
3) She has three
sisters and two brothers residing in the Toronto area.
4) She is
seeking a one month visa to come to Canada for a vacation and to
visit the grave sites of her mother and sister.
5) She had
received a negative decision in May 2008 to her request for a TRV due to her
failure to satisfy the requirements of Regulation 179.
6) She has no
employment history but stated she was a “homemaker, childcare provider taking
care of my grandchildren”.
[14]
Her
TRV application is supported by the following documents:
1) A letter dated
July 14, 2008, from her brother Stan Shepherd and attached documents in
support of his sister’s TRV application. He indicates he and his sisters in Toronto invited Faye
Rudder to come to visit them to allow her to know her nieces and nephews and
other relatives and to visit the gravesites of her mother and sister who passed
away in 2003 and 2004. He says his sister Faye would stay at his home which he
owns and that “I will be fully responsible for her well being. I will also
secure health insurance for her”. He is a Canadian citizen working as a
Registry Officer with the Courts Administration Services. He undertook “to
ensure that Faye lives up to her obligations to leave Canada upon the
expiry of her TRV” and that he is willing to sign a bond on her behalf.
2) He provided
proof of employment and salary.
3) A letter from
her common law spouse who confirms he is the spouse of Faye Rudder and they
have been together for the past 30 years; that he supports her application for
a visitor’s visa and is of the opinion a trip to Canada “will help bring
closure following the passing of her mother and sister and would enable her to
see family members she hasn’t seen in many years”. [My emphasis.]
4) Proof of the
death of the Applicant’s sister.
[15]
In
a further affidavit sworn on March 30, 2009, after he had received a
copy of the CTR, Stan Shepherd deposes he noticed the CTR has missing documents
which has been provided to the Canadian High Commission in Guyana, namely:
1) His affidavit
sworn August 1, 2008 in support of the application;
2) A letter
dated September 4, 2008 with attached financial documents faxed to the
Canadian High Commission in Guyana which he confirms was received there; and,
3) When his
sister Faye filed her TRV application with the Canadian High Commission in Guyana, she included
his August 1, 2008 affidavit.
[16]
In
his August 1, 2008 affidavit, Mr. Shepherd explains why his sister Faye was
submitting a new TRV application after being refused one a short time before. He
indicates she would travel on a two way return ticket; she had strong family
ties in Guyana: her five
children reside there, her common law spouse of 30 years is also there, she owns
her home, she is a homemaker, provides child care for her grandchildren and
raises rare livestock. She also receives a monthly support from her siblings in
Canada. She has
never been convicted of a criminal offence and is in good health. Mr. Shepherd
repeats he will be responsible for her and he guarantees by his personal
assurance his sister Faye will leave Canada at the end of her
authorized stay.
[17]
The
September 4, 2008 letter addressed to the Canadian High Commission in
Georgetown, Guyana provides: (1) a mortgage statement showing the substantial
equity balance in his home; (2) the amount available on his line of credit at
BMO; (3) his tax return; (4) a letter of support from his sister Wendy and her
RBC bank statement; and, (5) his weekly pay stub.
Analysis
(a) The Standard of review
[18]
The
Supreme Court of Canada, in Dunsmuir
v. New Brunswick, 2008
SCC 9 (Dunsmuir), reformed the standard of review analysis by merging
the patent unreasonableness standard into the standard of reasonableness. As
the Federal Court of Appeal’s judgment, in Boni v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 68, shows, depending on the
circumstances of a particular case and specifically, the nature of the question
at issue, the standard of review of a decision of a Visa Officer refusing a TRV
is patent unreasonableness, if the refusal was based on a question of fact – a
review of the evidence and when other questions are at issue, the standard of
reasonableness governs.
[19]
The
decision of a Officer dealing with a TRV application is a discretionary
decision, which Dunsmuir recognizes at paragraph 51, “questions of fact,
discretion and policy as well as questions where the legal issues cannot be easily
separated from factual issues generally attract a standard of reasonableness
while many legal issues attract the standard of correctness recognizing,
however, some legal issues attract the more deferential standard of
reasonableness”.
[20]
More recently, the Supreme Court of Canada in Canada (Minister of Citizenship and
Immigration) v. Khosa,
2009 SCC 12 (Khosa), considered whether the provisions of paragraph
18.1(4)(d) of the Federal Courts Act, governing judicial review of a federal
tribunal, had an impact on the standard of review analysis. This paragraph of
the Federal Courts Act provides the Federal Court may grant relief if a
federal tribunal “based
its decision or order on an erroneous finding of fact that is made in a
perverse or capricious manner or without regard for the material before it.” [My emphasis.]
[21]
In
Khosa, Justice Binnie, for the majority, made these points on the
standard of review:
1) Paragraph
18.1(4)(d) of the Federal Courts Act does not legislate a standard of
review but only sets out grounds for relief.
2) Having said
this, he wrote at paragraph 3 of his reasons paragraph 18.1(4)(d): “does provide legislative guidance as to “the
degree of deference” owed to the Immigration Appeal Division”. At paragraph 46,
he explained: “More generally, it is clear from s. 18.1(4)(d)
that Parliament intended administrative fact finding to command a high degree
of deference.”; adding: “This is quite consistent with Dunsmuir.
It provides legislative precision to the reasonableness standard of review
of factual issues in cases falling under the Federal Courts
Act.” [My emphasis.]
[22]
With
Khosa, we have the benefit of the Supreme Court of Canada’s application
to a federal tribunal of Dunsmuir which concerned judicial review of a
decision of an adjudicator appointed under provincial law.
[23]
I
take from Khosa, the following teachings:
1) At paragraph 59, Justice
Binnie wrote:
59
Reasonableness is a
single standard that takes its colour from the context. One of the objectives of Dunsmuir was to
liberate judicial review courts from what came to be seen as undue complexity
and formalism. Where the reasonableness standard applies, it requires
deference. Reviewing courts cannot substitute their own appreciation of the
appropriate solution, but must rather determine if the outcome falls within
"a range of possible, acceptable outcomes which are defensible in respect
of the facts and law" (Dunsmuir, at para. 47). There might be
more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
2) At paragraph 62, he
added:
62
It is apparent that Fish J. takes a different view than I do of the range of
outcomes reasonably open to the IAD in the circumstances of this case. My view
is predicated on what I have already said about the role and function of the
IAD as well as the fact that Khosa does not contest the validity of the removal
order made against him. He seeks exceptional and discretionary relief that
is available only if the IAD itself is satisfied that "sufficient
humanitarian and compassionate considerations warrant special relief". The
IAD majority was not so satisfied. Whether we agree with a particular IAD
decision or not is beside the point. The decision was entrusted by Parliament
to the IAD, not to the judges. [My emphasis.]
3)
At paragraph 63, he
stresses the importance Dunsmuir places on providing reasons “which
constitute the primary form of accountability of the decision maker to the Applicant,
to the public and to a reviewing court”. He cites with approval that Court’s
decision in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2
S.C.R. 817, a case where an Immigration Officer refused an application for
permanent residence on humanitarian and compassionate grounds.
[24]
I also have in mind
what Justice Décary said in Aguebor v. (Canada) Minister of Employment and Immigration, [1993] F.C.J. No. 732, at paragraph 4:
4 There is no longer any doubt that
the Refugee Division, which is a specialized tribunal, has complete
jurisdiction to determine the plausibility of testimony: who is in a better
position than the Refugee Division to gauge the credibility of an account and
to draw the necessary inferences? As long as the inferences drawn by the
tribunal are not so unreasonable as to warrant our intervention, its findings
are not open to judicial review. In Giron, the Court merely observed
that in the area of plausibility, the unreasonableness of a decision may be
more palpable, and so more easily identifiable, since the account appears on
the face of the record. In our opinion, Giron in no way reduces the
burden that rests on an appellant, of showing that the inferences drawn by the
Refugee Division could not reasonably have been drawn. In this case, the
appellant has not discharged this burden.
Application
to this case
[25]
In
Khosa, the Supreme Court of Canada emphasized the reasonableness
standard required deference and stressed that reviewing courts “cannot substitute their own appreciation
of the appropriate solution, but must rather determine if the outcome falls
within “a range of possible, acceptable outcomes which are defensible in
respect of the facts and law”.” In the context of judicial review of
administrative action, it is clear that “the law” includes the general
principles of “administrative law” (Khosa, a paragraph 4).
[26]
There
is no question an application by a foreign national for a TRV triggers a
discretionary decision by an Officer. Administrative law has settled the
principles upon which discretionary decisions of Officers dealing with TRV
decisions must be reviewed.
[27]
The
case law in this area is to the effect the principles established by the
Supreme Court of Canada in Maple
Lodge Farms Ltd. v. Government of Canada et al, [1982]
2 S.C.R. 2 (Maple Lodge Farms) generally apply. (See the Federal Court
of Appeal’s decision in Jang v. Canada (Minister of Citizenship and
Immigration), 2001 FCA
312; Salman v. Canada (Minister of Citizenship and Immigration), 2007 FC
877; Liu v. Canada (Minister of Citizenship and
Immigration), 2001 FCT
751; and, Guo v. Canada (Minister of Citizenship and
Immigration), 2001 FCT
1353.)
[28]
In
Maple Lodge Farms, Justice McIntyre wrote:
In
my view, in dealing with legislation of this nature, the courts should,
wherever possible, avoid a narrow, technical construction, and endeavour to
make effective the legislative intent as applied to the administrative scheme
involved. It is, as well, a clearly-established rule that the courts should not
interfere with the exercise of a discretion by a statutory authority merely
because the court might have exercised the discretion in a different manner had
it been charged with that responsibility. 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 or extraneous to the statutory purpose, the courts
should not interfere.
[29]
In
this case, I am disturbed by two circumstances.
[30]
First,
there was a dispute between the parties on the composition of the CTR which
should have been settled in accordance with the provisions of sections 317 and
318 of the Federal Courts Rules. The CTR was received after leave was
granted and the issue fell to be settled by this Court of the hearing of the
judicial review application. At the end of the day, this dispute has no impact
upon my decision so I will say no more about it.
[31]
Second,
I note, in this case, there was no affidavit from the Officer explaining his/her
decision or what material was in front of him/her when the decision was made.
From the material before me, it appears all of the material was filed with the
Canadian High Commission in Georgetown, Guyana while the decision itself was made by an Officer
in Port of
Spain,
Trinidad and Tobago.
[32]
In my view, this
judicial review must be allowed for the following reasons:
1)
The Officer has simply provided no adequate reasons for decision.
The Officer does not respond to the new evidence which the applicant and her
brother put before the decision-maker explaining why the second application is
different than the first one which was refused but not appealed. This case is
similar to the case which was before my colleague Justice O’Reilly in Dhillon v. Canada (Minister of Citizenship and Immigration), 2003 FC 1446.
2) The Officer did not consider many of the
factors spelled out in OP-11, the administrative guidelines. In Baker,
Madam Justice L'Heureux-Dubé
explained at paragraph 72, on behalf of her colleagues of the Supreme Court of
Canada, the value of ministerial guidelines in assessing the reasonableness of
a decision. In Suresh v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 36, the Court explained
the result in Baker was the Minister’s delegate's failure to comply with
self-imposed ministerial guidelines. A review of the factors spelled out in
OP-11 for consideration with the ones referred by the Officer clearly show to a
failure to consider many of the factors identified in the ministerial guideline
to assess the central and only criteria spelled out in IRPA for the
issuance of a TRV, namely, whether, on the evidence, the Officer should be
satisfied an Applicant will return to his or her country of residence.
[33]
Another way of
putting it, the Officer’s error is the failure to take into account relevant
factors in the exercise of his/her discretion.
[34]
Finally,
I find the Officer’s decision to be contrary to paragraph 18.1(4)(d) of the Federal
Courts Act. The Officer’s decision was reached either by ignoring the
evidence before him or by drawing inferences from the evidence which are
unreasonable in the perspective of the purposes and objectives for Canada granting
entry to this country on a TRV in the category of a visitor.
[35]
The
evidence before the Officer included the Applicant’s application for a TRV
which stated the purpose of the visit, its duration, what compelled her return
to Guyana – her
children and grandchildren for whom she provides care as well as her 30 year
relationship with her common law partner. The Officer also had the evidence of
Mr. Shepherd by way of his letter of July 4, 2008, as well as Mr. Douglas’
letter. Mr. Shepherd’s letter attests to the living arrangements made for his
sister and why it is important for her to visit. He guarantees her return and
outlines his financial resources. Mr. Douglas confirms his 30 year relationship
with Faye Rudder, points to the need to bring closure on her mother and
sister’s deaths and the fact she had not seen the family for many years.
[36]
The
Officer found Faye Rudder had no compelling reasons to travel and even less
reasons to return to Guyana because she was not sufficiently established
there. The Officer questioned the source of funds available to Faye Rudder in Canada. In my view,
the Officer could only have reached these conclusions by ignoring the evidence
or by drawing inferences from the evidence which are unreasonable. In the
circumstances, this Court’s intervention is warranted. I cite Justice Lagacé’s
recent judgment in Ogunfowora
v. Canada (Minister of Citizenship and Immigration), 2007 FC 471.
[37]
I
conclude by finding that this is an appropriate case for the issuance of a
direction that a different visa officer issue to Faye Rudder forthwith a TRV
for a period of one month when it is suitable for the Applicant to travel to
Canada. I find that on the evidence in the record this is the only reasonable result
a Visa Officer could reach on a re-consideration.
[38]
In Pacific Pants
Company Inc. et al v. the Minister of Public Safety and Emergency
Preparedness, 2008 FC 1050, this Court at paragraphs 48 and 49 had an
opportunity to discuss the scope of paragraph 18.1(3)(b) of the Federal
Courts Act which authorizes the Court on setting aside a decision to do so "with such directions as it
considers to be appropriate". I referred to the Federal Court of
Appeal’s decision in Rafuse
v. Canada (Pension Appeals Board), 2002 FCA 31, as authority that
directions issued under paragraph 18.1(3)(b) may include directions in the
nature of a directed verdict. In my view, a directed verdict is compelling on
the facts of this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is allowed, the decision of the Officer refusing to issue a
TRV to the Applicant is set aside and the matter is referred to a different
Visa Officer with directions that a TRV for the period of one month be issued
forthwith to the Applicant. No certified question was proposed.
“François
Lemieux”
_____________________________
Judge
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