Date: 20090818
Dockets: IMM-434-09
IMM-437-09
Citation: 2009 FC 837
Winnipeg, Manitoba,
August 18, 2009
PRESENT: The Honourable Mr. Justice Zinn
Docket: IMM-434-09
BETWEEN:
SAMAYEH GROOHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Docket: IMM-437-09
AND BETWEEN:
FATEMEH GROOHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants in files IMM-434-09 and IMM-437-09, Samayeh Groohi and Fatemeh
Groohi respectively, are sisters whose applications for temporary resident
visas were refused by a visa officer at the Embassy of Canada in Tehran, on the same day, and
on the same grounds. They were seeking the visas in order to visit their
brother in Canada. They are seeking
judicial review of the refusals.
[2]
While
some facts relating to each are unique, they were heard together and the same
legal argument was made by counsel for both applicants and the respondent.
Accordingly, these reasons apply to both applications and will be filed in each
of the two Court files IMM-434-09 and IMM-437-09.
Background
[3]
The
applicants are Iranian nationals. Samayeh Groohi is a married woman, 25 years
of age, who works as an occupational therapist at a private clinic in Tehran. Her younger sister,
Fatemeh Groohi, is a fourth year architecture student in Hamedan. She is 22
years old. Their brother, Bahram Groohi is a medical doctor practicing in Manitoba. He is a convention
refugee and has status in Canada as a permanent resident. He has sworn affidavits in
support of each of his sister’s application.
[4]
Bahram
Groohi initially invited his sisters and parents to visit him in Winnipeg in 2007. He was in
contact with the Embassy of Canada in Tehran to indicate that he would accept financial and
medical responsibility for his family members over the course of the planned
visit. The two sisters, along with their parents, filed visa applications.
The parents were granted visitor visas, but the sisters were not.
[5]
The
sisters’ visa applications were initially refused on July 31, 2007, on the
basis that in the visa officer’s estimation, both sisters had “weak ties” to Iran and were unable to show
that they would leave Canada at the end of an
authorized stay. The officer’s brief decision in each was identical, as
follows:
APPLICANT
IS NOT ESTABLISHED IN HER LIFE, PROFESSIONALLY, PERSONALLY, FINANCIALLY. NO
REAL TIES TO IRAN.
I
AM NOT SATISFIED THAT THE APPLICANT IS A GENUINE TEMP RESIDENT. APPLICATION
REFUSED.
[6]
The
sisters brought applications for review of the refusals, which applications
were granted on consent by Justice Layden-Stevenson, “upon counsel for the
respondent advising the Court that the visa officer’s finding that the
applicant[s] had weak ties to Iran [were] not sustainable on the reasons
provided” (Court Files IMM-4035-07 and IMM-4037-07). Both visa applications
were remitted to a different visa officer for redetermination.
[7]
The
applications were reopened on December 23, 2008. The Computer Assisted
Immigration Processing System (CAIPS) notes in the certified records indicate
that on the same day, the applications were again refused.
[8]
The
CAIPS notes relating to Sameyeh Groohi read as follows:
BASED
ON INFO ON FILE, PA WENT ONCE TO AZERBAIJAN. NO SIGINIFICANT TRAVEL HISTORY. INTENTS
(sic) TO VISIT BROTHER IN CDA FOR 3 MONTHS. BASED ON FOSS, HOST LANDED
AS CRR. PA IS MARRIED. NO CHILDREN. SISTER ACCOMPANYING. 1 BROTHER OUT OF 3
IN CDA. PA HAS LIMITED FAMILY TIES TO IRAN.
BASED
ON INFO ON FILE, PA IS THERAPIST IN A PRIVATE CLINIC.
BASED
ON INFO ON FILE, SPOUSE HAS SAME EMPLOYMENT.
BASED
ON INFO ON FILE, PA AND SPOUSE HAVE $500 OF INCOME PER MONTH AT THE PRIVATE
CLINIC. SPOUSE APPEARS TO HAVE A SECOND EMPLOYMENT WITH ALSO $500 PER MONTH –
APPEARS THAT PA AND SPOUSE HAVE AN ANNUAL INCOME OF APPROX $18000. BASED ON
BANK STATEMENT ON FILE, PA HAS LOW SAVINGS AND SHE OPENED HER BANK ACCOUNT 1
WEEK BEFORE SHE APPLIED FOR TRV.
PA
HAS MODEST INCOME AND SAVINGS.
PA
AND HER SPOUSE DON’T APPEAR WELL-ESTABLISHED FINANCIALLY IN IRAN.
AP
HAS LIMITED PROFESSIONAL AND FINACIAL TIES TO IRAN.
[9]
The
CAIPS notes relating to Fatemeh Groohi record the following:
NO
APPARENT TRAVEL HISTORY.
INTENTS
(sic) TO VISIT BROTHER IN CDA FOR 3 MONTHS.
HOST
LANDED AS CRR.
PA
IS SINGLE. NO CHILDREN. SISTER ACCOMPANYING. 1 BROTHER OUT OF 3 IN CDA.
PA
HAS LIMITED FAMILY TIES TO IRAN.
PA
IS STUDENT. PA IS UNEMPLOYED. PA HAS NO INCOME.
PA
LIVES WITH HER PARENTS. DOES NOT APPEAR TO HAVE ANY ASSETS.
PA
HAS MODEST SAVINGS – BANK STATEMENT SHOWS THAT CREDIT TURNOVER DOES NOT MATCH
WITH DEBIT TURNOVER.
PA
HAS NO PROFESSIONAL OR FINANCIAL TIES TO IRAN.
[10]
In
both cases, the CAIPS notes end with the following remark:
BASED
IN INFO ON FILE, PA FAILED TO SATISFY ME THAT SHE IS A BF TEMPORARY VISITOR AND
WILL LEAVE CDA WHEN REQUIRED AND THAT SHE IS ADEQUATELY ESTABLISHED WITH
INCENTIVE & TIES TO ENCOURAGE HER EVENTUAL RETURN TO IRAN.
[11]
Both
sisters received form letters dated December 23, 2008, indicating that the visa
officer concluded as she did based on a consideration of the applicants’ travel
history, family ties to Canada and country of
residence, current employment situation, and personal assets and financial
status.
Issues
[12]
Counsel
for the applicants raised six issues on these applications: that the officer
failed to consider dual intent in section 22 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27; that the applicants had a legitimate
expectation that the visa officer would balance the factors that favour the
application as well as those that do not, which expectation was not met; that
the decision of the visa officer was discriminatory as it was based on family
status, marital status and wealth; that the visa officer ignored the objective
of the Act to foster family unity; that the visa officer, having made an
adverse credibility finding, was required to conduct a personal interview of
the applicants; and that the consent Judgment issued in the previous case of
both applicants created an issue estoppel such that the visa officer could not
make a finding that they had insufficient ties to Iran. The applicants further
submit that the decisions are perverse and capricious based on the facts before
the visa officer and accordingly are not reasonable.
[13]
In
my view, the six legal issues raised by the applicants need not be determined.
I have found that both decisions are unreasonable and both must be set aside.
Analysis
[14]
These
applications must succeed based simply on the absence of any true analysis
of the evidence by the visa officer. It is trite law that simply listing a
series of factors, and stating a conclusion, is generally insufficient to meet
the test of reasonableness, the reason being that it is impossible for a
reviewing Court to appreciate and assess the train of thought or logical
process engaged in by the decision-maker. That is exactly the shortcoming the
records disclose here.
[15]
That
there should be such an absence of any reasoning is all the more surprising
given the history of these applications for a temporary resident visa. One
might have expected the visa officer to react with somewhat less apparent
indifference to the applications given that these applications had already been
sent back for a new determination on consent. Further, it may be inferred
through the visa officer’s silence that she never bothered to check the content
of the Court Orders. Had she done so, she would have been aware of the
determination that in both cases findings of weak ties to Iran were not sustainable on
the reasons provided. She might have considered providing more fulsome
reasons in consequence. As it stands, she did not. In fact, I am hard pressed
to say that any meaningful reasons were provided by the visa officer.
[16]
I
fully accept and endorse the proposition that the visa officer’s decision as to
whether an applicant has satisfied him or her that the applicant will not
overstay the visit to Canada is not one requiring a
detailed and lengthy analysis. However, where the officer concludes, as here,
that the applicant has failed to satisfy the officer of that essential fact,
the applicant is entitled to know the facts which the officer considered, the
weight accorded those facts, and the reasoning of the officer as to why the
applicant failed to meet the burden. In these decisions there is almost a
complete lack of any explanation of the reasoning process in which the officer
engaged. One example serves to illustrate this.
[17]
The
officer finds that both applicants have “limited family ties to Iran” (emphasis added).
Both applicants have two parents, two brothers, and a sister living in Iran. One sister has a
husband living in Iran, the other sister lives
with her parents. Their only immediate family member not living in Iran is the
one brother in Canada who is hoping to have
his sisters arrive in Winnipeg for a visit. The visa
officer provides no reasoning to show the Court how she arrived at a
conclusion, based on these facts, that they had “limited” family ties to Iran. If anything, on those
facts, they had limited family ties to Canada.
[18]
I am
also of the view that the visa officer considered irrelevant facts. Had the
officer provided some reasoning we could have seen why she thought those facts were
relevant. Having failed to do so, the Court can only conclude on the face of
the decision that they are irrelevant to the issue before the officer. There
is at least one instance of an irrelevant consideration evident in each
decision.
[19]
With
respect to the married sister, Samayeh Groohi, the visa officer states that her
spouse “doesn’t appear well-established financially in Iran” but offers no
explanation as to how this fact is relevant. Is the officer of the view that
the applicant wife may choose not to return to him after her visit because he
is not financially well-off? If so, it is a finding made without evidence and
is a stereotypical view of marriage between those not well-off.
[20]
Similarly,
irrelevant evidence was considered in the application of Fatemeh Groohi. The
officer notes that she has modest savings and then observes that her “bank
statement shows that credit turnover does not match with debit turnover.” The
document in question from the Bank Melli Iran is a report on the applicant’s short term
profit bearing time investment certificate. It shows a “credit turnover” from
17.08.2006 to 02.07.2007 of Rls.63,932,716 and a debit turnover for the same
period of 29,390,000, leaving a balance of 34,542,716.
[21]
There
is no issue with the accuracy of the mathematical calculation of the balance in
that account – and it is a positive balance. What the document shows is that
she deposited more in the relevant period than she withdrew. I should have
thought that this was a positive factor. The only relevant fact from this
document is that she had assets. I cannot but think that the officer simply
misunderstood this document but without any explanation as to why she thought
it relevant to note that the credit turnover does not match with the debit
turnover, the applicant and this Court is left to speculate.
[22]
Accordingly,
these decisions are quite simply unreasonable as defined by the Supreme Court
of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9. They are
quashed and the applications for temporary resident visas are remitted to an
officer who has had no previous role in these applications for determination.
In all of the circumstances, this is to be done as quickly as possible after
giving the applicants an opportunity to provide such further information as
they think appropriate; this is warranted given the time that has passed since
the initial applications. There is no question certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The applications for
judicial review in both files IMM-434-09 and IMM-437-09 are allowed.
2. The applicants’ applications
for a temporary resident visa is remitted to a visa officer who has had no
previous role in these applications for determination, to be made as soon as
possible after giving the applicants an opportunity to provide such further
information as they think appropriate; and
3. No question is certified.
“Russel W. Zinn”
Email this Content