Date: 20090722
Docket: IMM-4667-08
Citation: 2009 FC 743
Ottawa, Ontario, July 22, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
REYNUFO
BAYLON
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 stationed at Makati City,
Philippines (Officer), dated August 11, 2008 (Decision), refusing the
Applicant’s application for a work permit.
BACKGROUND
[2]
The
Applicant is a 29-year-old male who is a citizen of the Philippines. He helps
support his girlfriend, Ailleen Barretto, and his parents.
[3]
The
Applicant has been working as a cashier at Excesspoint Internet Café in the Philippines, since
January 2007. He draws a salary of 8268.00 pesos per month, which is equivalent
to $206.70 CDN.
[4]
The
Applicant desires to come to Canada because it would allow him to build a
better financial future for himself and his family. The Applicant was offered
employment with Grand Hale, a fish processing plant in Richmond, British
Columbia
as a fish processor where he would be responsible to cut, clean and pack fish
and other sea food products. The Applicant would make $12 per hour CDN, which
would be 75720 pesos more then he is currently making at his present job. The
Applicant also received a positive Labour Market Opinion from Service Canada.
[5]
The
Applicant’s grandfather, grandmother and aunt live near the fish plant in Vancouver, British
Columbia. His aunt has offered to let him stay with them during his time working
at the fish plant.
DECISION UNDER REVIEW
[6]
The
Officer held that the Applicant was required to establish that he met all of
the requirements under Part 11 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations):
(1) that he would not contravene the conditions of admission; (2) that he does not
belong to a category of persons inadmissible to Canada under the Act; (3) that
his intentions were bona fide; and (4) that he would leave Canada by the
end of the period authorized for his stay.
[7]
The
Officer concluded that the Applicant had not satisfied him that he would leave Canada by the end
of the period authorized for his stay because he “h[ad] not demonstrated ties
that would satisfy [the Officer] of [the Applicant’s] intention to return.”
[8]
The
Officer indicated that the Applicant did not meet the requirements of the Act
and the Regulations and his application was refused.
ISSUES
[9]
The
Applicant submits the following issue on this application:
1)
Should
the Officer’s Decision be quashed and the matter referred back for a fresh
decision by another Officer on the basis that it is unreasonable in law?
STATUTORY PROVISIONS
[10]
The
following provisions of the Act are applicable in this proceeding:
|
20. (1) Every foreign national, other than a
foreign national referred to in section 19, who seeks to enter or remain in Canada
must establish,
…
(b) to become a temporary resident, that they hold the
visa or other document required under the regulations and will leave Canada
by the end of the period authorized for their stay.
|
20. (1) L’étranger non visé à l’article 19 qui cherche à entrer au
Canada ou à y séjourner est tenu de prouver :
…
b) pour devenir un résident temporaire, qu’il détient les visa ou
autres documents requis par règlement et aura quitté le Canada à la fin de la
période de séjour autorisée.
|
STANDARD OF REVIEW
[11]
The
Applicant submits that the standard of review of a decision of a visa officer
is the standard applicable to the Immigration of Refugee Board which, in the
Applicant’s view, is correctness: Dunsmuir v. New Brunswick, 2008 SCC 9
(Dunsmuir) and Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982.
[12]
The
Respondent submits that the Officer’s assessment of the application for a work
permit involved an exercise of statutory discretion which should be given a
high degree of deference. Therefore, the appropriate standard of review is
reasonableness: Dunsmuir. The Respondent also submits that this Court
defer to an officer’s decision if his or her findings are justified,
transparent and intelligible, and fall within the range of possible outcomes
given the evidence as a whole. See: Dunsmuir and Choi v. Canada (Minister of
Citizenship and Immigration) 2008 FC 577. The Respondent says that the
standard of review is not correctness as the Applicant asserts.
[13]
The
standard of review for decisions of a visa officer has been reasonableness simpliciter:
Castro v. Canada (Minister of Citizenship and Immigration) 2005 FC 659 at
paragraph 6 and Ram v. Canada (Minister
of Citizenship and Immigration), [2003]
F.C.J. No. 855. When a visa officer refuses a work permit solely on
statutory interpretation, the standard of review is correctness: Singh v.
Canada (Minister of Citizenship and Immigration) 2006 FC 684 at paragraph 8
and Hamid v. Canada (Minister of Citizenship and Immigration) 2005 FC
1632 at paragraph 4.
[14]
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.
[15]
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.
[16]
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 stated issue to be 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.”
[17]
In
the course of his argument the Applicant also raises procedural fairness issues
for which the standard of review is correctness: see Suresh v. Canada
(Minister of Citizenship and Immigration) 2002 SCC 1.
ARGUMENTS
The
Applicant
[18]
The
Applicant submits that the Officer’s Decision be quashed and the matter
referred back for a fresh decision by another officer on the basis that it is
unreasonable in law. The Applicant states that he meets the requirements of
section 20 of the Act and that the Officer’s Decision was patently unreasonable
since relevant evidence was ignored and unwarranted assumptions drawn.
[19]
The
Applicant submits that the Officer made assumptions that he was not
economically established and would not return to the Philippines on the expiry of his
work permit. The Applicant says that this is “without foundation, irrational
and untenable because his fiancée lives in the Philippines, and all his siblings reside in the Philippines.”
[20]
As
well, the Applicant says that the Officer ignored the relevant facts in front
of him, including the following:
1)
The
Applicant has an active working history and he has an offer to resume his
employment upon his return from Canada;
2)
The
Applicant has a fiancée living in the Philippines; they have been seeing each other for three
years;
3)
The
Applicant will inherit property in the Philippines;
4)
The
Applicant’s customs and traditions are consistent with him returning to his
homeland upon expiration of the work permit; and
5)
The
Applicant deposed in his affidavit that he is aware that this employment
contract is not extendable.
[21]
The
Applicant points out that, even in applying the most stringent standard of
review, the Officer erred if he relied on a single fact to outweigh all the other
relevant facts provided by the Applicant. See: Guo v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 1353; Yuan v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 1356 and Malhi v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1120.
[22]
The
Applicant further submits that the Officer’s purported personal experiences or
knowledge cannot be the primary basis of his decision. The decision must be
based primarily on the merits of the case. See: Wang v. Canada (Minister of
Citizenship and Immigration) 2003 FCT 365.
[23]
The
Applicant points out that he was required to go through a medical examination
by the Canadian Embassy in the Philippines. He was not given an opportunity to respond to any of the
concerns the Officer may have had. The Officer made unsupportable assumptions
when refusing the work permit application. The Applicant must be given an
opportunity to provide an explanation for perceived or apparent deficiencies
and respond to an Officer’s concerns. See: Vandi v. Canada (Minister of
Citizenship and Immigration) 2002 FCT 515 and Chow v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 996.
The Respondent
[24]
The
Respondent submits that the Officer considered all of the evidence. The
Officer’s CAIPS notes indicate that the Applicant:
1)
Has
a two-year offer of employment in Canada;
2)
Is
an unmarried male with no dependants;
3)
Has
an aunt and grandparents in Canada;
4)
Was employed
as a salesman;
5)
Has no
present work indicated.
[25]
The
Respondent submits that the Officer reasonably considered the Applicant’s
specific circumstances.
[26]
The
Respondent reminds the Court that the onus was on the Applicant to satisfy the
Officer that he would depart Canada at the end of the period authorized for any
temporary work in Canada and that the Officer
was entitled to examine the totality of circumstances relating to the
Applicant’s case. The Applicant’s financial and other ties to the Philippines, age, family
circumstances, and employment were all relevant factors for the Officer to
consider. When an applicant has an incentive to remain in Canada, this is part
of the “broader picture” that an officer ought to consider in assessing whether
he or she will leave at the end of the period authorized for any temporary
stay. The weight to be assigned to each factor is a matter for an officer’s discretion
and is not a basis for judicial review. See: Wang v. Canada (Minister of
Citizenship and Immigration) 2006 FC 1298 at paragraphs 9-10; Nguyen v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1087; Skoruk v. Canada (Minister of Citizenship
and Immigration) 2001
FCT 1220 and Ayatollahi v. Canada (Minister of Citizenship and Immigration) 2003
FCT 248 at paragraph 23.
[27]
In
relation to the Applicant’s argument that he should have been granted an
interview, the Respondent submits that the duty of fairness prescribes minimum
standards of procedural decency and that the content of the duty varies
according to context. Several factors tend to reduce the content of the duty of
fairness owed to visa applicants, some of which are considered in Chiau v.
Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297
(F.C.A.) at paragraphs 35-36. 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; and the less serious impact on the individual which the refusal of a visa
typically has. See also: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at paragraphs 21-28 and Ha v. Canada (Minister of
Citizenship and Immigration) 2004 FCA 49 at paragraph 37.
[28]
The
Respondent says that, when dealing with the duty of fairness for visa
applications, the Court must guard against imposing a level of procedural
formality that, given the volume of applications 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 weighted against the benefits of participation in the
process by the person directly affected. See: Khan v. Canada (Minister of
Citizenship and Immigration), [2002] 2 F.C. 413 (F.C.A.) and Fargoodarzi
v. Canada (Minister of
Citizenship and Immigration) 2008 FC 90.
[29]
The
Respondent concludes that the Applicant’s application should be dismissed.
ANALYSIS
[30]
The
assessment of an application for a work permit involves an exercise of
statutory discretion and attracts a high degree of deference from the Court.
Apart from the procedural fairness issues raised, the applicable standard of
review in this case is reasonableness. See Dunsmuir and Choi.
[31]
The
Applicant complains that the Officer’s assessment was unreasonable because the
Officer ignored evidence and drew unwarranted inferences. However, there is no
evidence before me to support such a conclusion. The Decision makes it clear
that the Applicant’s full submissions were considered and the deciding factor
was that the Applicant had failed to satisfy the Officer that he would leave
Canada by the end of the authorized period.
[32]
The
CAIPS notes reveal that the Officer noted the Applicant was unmarried, had no
dependents and had an aunt and grandparents in Canada. Also, the Applicant indicated that he had
been employed as a salesman from January 2007 to December 2007, but he did not
indicate any present work.
[33]
It
is, of course, always possible to disagree with a decision and take issue with
it. But I cannot say in this instance that the Officer ignored relevant
evidence or drew unreasonable inferences from the evidence before him. The
weight to be assigned to the various factors is a matter for the Officer’s
discretion. See Wang at paragraphs 9-10. The Decision falls within the
range of possible acceptable outcomes which are defensible in respect of the
facts and law.
[34]
The
Applicant also claims that he was not given an interview or an opportunity to
respond to the Officer’s concerns and that this raises a procedural fairness
issue.
[35]
I
have reviewed this issue under a standard of correctness. The Applicant says
that he should have been given an opportunity to provide an explanation for
perceived or apparent deficiencies and respond to the Officer’s concerns. In
the present case, however, the Officer was not concerned with deficiencies. He
assessed the application materials and exercised his discretion as he is
required to do by statute. If an officer is not convinced that an applicant
will leave Canada at the end of the authorized stay, there is no obligation to
interview the applicant and to provide an opportunity for the applicant to try
and dissuade the officer from that conclusion. The onus was upon the Applicant
to provide all of the information necessary for the decision and to convince
the Office that he was a visitor and not an immigrant. See Skoruk at paragraphs
6-13.
[36]
Justice
Zinn recently conducted a review of the jurisprudence dealing with whether a
visa officer is under an obligation to allow an applicant an interview or an
opportunity to address concerns. See Singh v. Canada (Minister of
Citizenship and Immigration), 2009 FC 620 at paragraph 7. In the present
situation, there was no obligation on the Officer to hold an interview with the
Applicant or to conduct some kind of dialogue with the Applicant.
[37]
It
is also worth pointing out that the Officer makes it clear in his Decision that
“If there is any significant new information that you would like to be
considered, you are welcome to re-apply. Where possible, a different officer
will be assessing the application.”
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that
1. This
application is dismissed.
2. There is no
question for certification.
“James
Russell”
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