Date: 20110208
Docket: IMM-2426-10
Citation: 2011
FC 141
Ottawa, Ontario, February 8,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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MONICA DONKOR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application to quash a decision dated March 4, 2010 of a Visa
Officer at the High Commission in Accra, Ghana, denying the applicant’s application for a Temporary
Resident Visa (TRV). The applicant sought to come to Canada to serve as the
surrogate mother for her sister’s child. The visa request was denied on the
basis that the Officer was not satisfied that the applicant would leave Canada
at the end of her stay in Canada. The applicant seeks to set aside the decision and have the
matter remitted to another visa officer for consideration. The standard of
review of this decision is reasonableness, which can only be assessed if the
decision is first situated in the legislative, regulatory and policy
context in which it is taken.
[2]
At
law, a foreign national seeking to enter Canada is considered to be an immigrant. In
consequence, the law imposes an obligation on the foreign national seeking to
enter Canada for a period of temporary
residence to establish that they will leave Canada by the end of the period authorized for
their stay. The Immigration and Refugee Protection Act (IRPA)
provides:
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11.(1)
A foreign national must before entering Canada,
apply to an officer for a visa or for any other document required by the
regulations. The visa or document may be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
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.
[Emphasis added]
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11.(1) L’étranger doit,
préalablement à son entrée au Canada, demander à l’agent les visa et autres
documents requis par règlement. L’agent peut les délivrer sur preuve, à la
suite d’un contrôle, que l’étranger n’est pas interdit de territoire et
se conforme à la présente loi.
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. [Notre
soulignement]
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[3]
The IRPA
Regulations, SOR 2002-207, s. 179 states that a visa officer shall issue a TRV
to a foreign national if, following an examination, it is established that the
foreign national will leave Canada by the end of their stay. Operational guidance is
given to visa officers in the Temporary Residence Manual (OP11) which indicates
that in assessing an application an officer is to have regard to specific areas
of concern including the purpose of the trip, its duration, the extent of
family ties in Canada, ties to the country of residence, means of support in
Canada, ability to leave Canada, whether the applicant intends to study or work
in Canada, prior travel history and the existence of any serious medical
condition.
[4]
In
the decision of March 4, 2010 the Visa Officer concluded that he was
not satisfied that the applicant would leave Canada at the end of her stay as a temporary
resident. In reaching this decision, the Officer noted, in particular, the
applicant’s travel history, family ties in Canada and in her country of residence, her limited
employment prospects in her country of residence, and her personal assets and
financial status. Nor was the Officer satisfied that the applicant had
sufficient funds, including income or assets, to carry out her stated purpose
in going to Canada or to maintain herself while in Canada and to affect her departure.
[5]
The
Visa Officer also concluded that the applicant had limited establishment in Ghana. The Computer Assisted
Immigration Processing System (CAIPS) notes of the interview indicate that the
applicant was not married, had no children and did not own a home. She lived
with her sister and her brother-in-law in a house which was owned by her
brother-in-law and worked in her sister's clothing store in Accra. The applicant had
modest financial assets and limited employment prospects. The Officer put his
concerns to the applicant directly:
You
are single, have no children, you do not own any assets, you have very limited
funds – These factors do not satisfy me that you have strong ties to Ghana…
My
sister and her husband wants a child. That is why I am going.
You
are the applicant so you need to satisfy me that you would leave Canada by the end of the period authorized for your stay.
I
am going because of my sister and her husband. I am not going to remain in Canada.
[…]
I
am refusing your application because I am not satisfied that you have strong
ties to Ghana and that you will leave Canada by the end of the period authorized for your stay.
If
we are talking in terms of money and property then I don’t have. If we are
talking in terms of myself. I know I will come back.
[6]
The
Visa Officer, on the evidence before him, had reason to be cautious. Several
of the objective criteria or indicia which the Officer was directed by statute
to consider were reasonably triggered by the applicant’s evidence.
[7]
To
be weighed in the balance, however, was the applicant's assertion that she
would return to Ghana and that the sole
purpose of her trip was to serve as the surrogate mother for her sister’s child.
As well, while the statutory scheme did not allow for the posting of a bond,
the applicant’s sister and husband had offered to do so as further assurance
that the applicant would return to Ghana after the birth of the child. The record also
contains medical evidence as to the applicant's ability to have children and
statutory declarations by the Canadian sister as to the purpose of the trip and
her ability to support her sister when in Canada. The applicant's sister and husband are well
established in Canada, are employed respectively
as a nurse and pharmacist and earn substantial income.
[8]
It
is in this context that counsel for the applicant contends that the decision is
unreasonable. He argues, forcefully, that the Visa Officer did not presume
good faith and had no basis to doubt the legitimacy of the purpose of the trip
or the applicant’s statement that she would return. Counsel also argues that
reliance on the absence of travel history was unreasonable, as everyone has to
make their first trip.
[9]
Travel
history is a relevant consideration and can be a positive consideration when an
applicant demonstrates a history of leaving and returning to their country of
residence. However, in this case, it could not be a positive factor that
weighed in the applicant’s favour, or support the applicant in satisfying the
onus that the legislation places on her. It would be, at best, neutral. Indeed,
the CAIPS notes do not indicate that the lack of travel history was a
significant factor in the Officer’s consideration.
[10]
With
respect to the Officer’s treatment of financial considerations, I accept that
the issuance of a visitor’s visa should not be limited to only individuals
of means. However, the absence of any significant financial ties to her
country of residence was clearly a relevant, and objective factor which the
Visa Officer was obligated to take into account; Duong v Canada (Minister
of Citizenship and Immigration) 2003 FC 834.
[11]
With
respect to the consideration of family ties and establishment that would
support the conclusion that the applicant would return to Ghana, the Visa Officer
also had before him evidence that the applicant had three sisters and a father
living in Ghana. Apart from their
existence, and her relationship with the sister with whom she lived, there was
no indication whatsoever as to the nature and extent of her relationship with
her family in Ghana. All the Officer knew,
on the information before him, was that the applicant was prepared to leave
them from a period of 18 months, the projected length of the surrogacy. In
contrast, the Visa Officer had before him, in the form of affidavits, statutory
declarations and the interview with the applicant, clear evidence that the applicant
was very close to her Canadian sister. This could be presumed from the
proposed surrogacy arrangement.
[12]
The applicant
contends that the Visa Officer ignored the purpose of the visit and that if the
Officer had regard to the legitimate reasons which underlie its purpose, he
would not have rejected the application. The decision, however, does not indicate
that the Visa Officer rejected the application because of its purpose. The
"purpose of visit" was not checked as a factor of concern. Similarly,
the Visa Officer noted the statutory declaration, the letters provided by the
doctor and the proposed bond.
[13]
The
legislation requires that the applicant discharge the onus on her to establish
that she would return to her country of residence. The altruism or bona
fides of the purpose for coming to Canada does not translate into positive factors which
would necessarily satisfy an officer that the applicant would return to
her county of origin or otherwise displace relevant countervailing concerns. The
allegation that the Officer presumed bad faith on the part of the
applicant fails for the same reason. The Visa Officer is under a duty to
be satisfied that the applicant will return to her country of origin and the
onus is on the applicant to satisfy the officer to that effect. The Visa
Officer did not assume or discount the bona fides of the purpose of the
trip or make any assumptions. The record indicates that he relied solely on
the evidence before him.
[14]
This
Court, as a reviewing Court, cannot substitute its own appreciation of the
evidence for that of the decision maker or substitute its view of the
appropriate solution or remedy; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 29. Here, the Officer
considered all of the relevant factors and took no irrelevant factors into
account. The decision falls within the range of possible acceptable
outcomes that are defensible in respect of the law and the facts before the Officer.
For these reasons, the application will be dismissed.
[15]
No
question of general importance was put forward for certification, and none will
be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that the application
for judicial review be and is hereby dismissed. No question for certification
has been proposed and none arises.
"Donald J. Rennie"
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