Date: 20110331
Docket: IMM-4412-10
Citation: 2011 FC 399
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec,
March 31, 2011
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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SALIM YOUSSEF
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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 for judicial review submitted by the applicant, Salim
Youssef, in accordance with subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a
decision by a visa officer to deny his work permit application.
I. Background
[2]
The
applicant is a businessman who was born in and is a citizen of Syria. He
received an offer to be the Middle East region purchasing director for Basse
Alimentation inc., a Canadian company that produces and exports nuts and dried
fruit. The applicant entered Canada on September 30, 2009, to meet the company president
and discuss this offer of employment. After the applicant and the company
president came to an agreement on the employment contract, the company
president appointed a lawyer around the month of October 2009 to prepare the
applicant’s work permit application. The applicant received the confirmation of
employment from Service Canada on January 22, 2010, and he received his
certificate of acceptance from Quebec on February 1, 2010.
[3]
The
lawyer sent the work permit application to the Canadian consulate in New York around
March 17, 2010. This application was accompanied by an application to extend his
stay with multiple entry. The file was returned to him several weeks later
because of an error in the fees.
[4]
In
the meantime, the applicant stayed in Canada. He alleges that he had wanted to
return to Syria, but that his lawyer had advised him to stay here because his
original passport would be required in re‑submitting the visa
application. On his lawyer’s advice, the applicant therefore stayed in the
country after the expiry of his resident permit.
[5]
On
May 24, 2010, the lawyer went in person to the Canadian consulate in New York to
re‑submit the applicant’s work permit application and, this time, included
the exact fees and an application to extend his stay. She returned there on
June 3, 2010, to get the answer to the application.
[6]
The
visa officer refused to issue the work permit. He cited the following reasons
in support of his decision:
I am not satisfied that you would leave Canada by the end of the authorized
period of your stay. To reach this conclusion, I have considered the fact that
you have remained in Canada beyond the period authorized
by your temporary resident visa (you entered Canada on 30 September, 2010 …). I also
considered the fact that you provided little evidence with your application
that you have strong and significant ties to your home country. I also
considered the fact that according to our record, you had originally told the
immigration officer in our Embassy in Damascus who gave you a temporary resident
visa, that you only stay for one month in Canada.
II. Issues
[7]
The
following two issues arise from this judicial review:
1) Did the visa
officer err by failing to ask for additional explanations or to call the
applicant to an interview?
2) Do the
reasons for the visa officer’s decision contain errors that warrant the
intervention of this Court?
III. Applicable standards of review
[8]
The
first issue raises concerns of procedural fairness and natural justice, that
is, those relating to the applicant’s right to be heard or to respond to the visa
officer’s concerns. In the case at bar, the standard of correctness applies when
assessing the process the visa officer followed to arrive at the decision that
is the subject of this judicial review (Canada (Citizenship and Immigration)
v. Khosa, 2009 SCC 12, at paragraph 43; Sketchley v. Canada (Attorney
General), 2005 FCA 404, at paragraph 53; Li v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1284, at paragraph 17; Gu v.
Canada (Minister of Citizenship and Immigration), 2010 FC 522,
at paragraph 15).
[9]
The
standard of review that generally applies to the assessment of a visa officer’s
decision is reasonableness.
Did
the visa officer breach the principles of natural justice by failing to ask for
additional explanations or to call the applicant to an interview?
[10]
The
applicant submits that the visa officer breached his obligation of procedural
fairness in not giving him the opportunity to provide additional information or
in not calling him to an interview before denying his work permit application. In
doing so, he rendered his decision by disregarding the evidence in the record that
demonstrated that he had presented an application to extend his temporary resident
visa twice.
[11]
The
respondent is claiming that procedural fairness did not require the visa
officer to give the applicant the opportunity to undergo an interview or to respond
to his concerns as the requirement to ask for additional information exists,
for example, when the visa officer is relying on extrinsic evidence, which is
not the situation here. He assessed the documents of the application and
exercised his discretionary authority as required by the Act.
[12]
In
Hara v. Canada (Minister of Citizenship and Immigration), 2009 FC 263, at
paragraph 23, Justice Russell determined that, even though there is no
statutory obligation to grant an interview, procedural fairness nevertheless
requires the officer to allow the applicant to respond to his concerns under
certain circumstances:
While there is no statutory right to an interview, procedural
fairness requires that an applicant be given an opportunity to respond to an
officer’s concerns under certain circumstances (Li v. Canada (Minister of Citizenship and
Immigration)
2008 FC 1284 at paragraph 35. This duty may arise, for example, if an officer
uses extrinsic evidence to form an opinion, or otherwise forms a subjective
opinion that an applicant had no way of knowing would be used in an adverse
way: Li at paragraph 36.
[13]
In
Gu, above, at paragraph 25, the Court determined that a visa officer who
had doubts as to the past temporary permit applications of an applicant should
have obtained information from her to address his concerns:
This
is not a case where the officer had concerns with the application which was
submitted. Rather the concerns related to past permits and past applications.
In light of these circumstances, the Applicant was entitled to be provided with
an opportunity to answer these concerns which she could not have reasonably
foreseen as being of interest to the officer. Since the application will be
returned to another Non‑Immigrant Officer for redetermination, the
Applicant is now well advised that she must address these concerns with this
new officer.
[14]
In
Bonilla v. Canada (Minister of Citizenship and Immigration), 2007 FC 20,
the Court found that an officer who had come to the subjective conclusion that
the applicant would not be returning to her country of origin after her studies
should have given her the opportunity to address his concerns.
[15]
In
this case, in support of his refusal, the visa officer indicated that he was
not convinced that the applicant would leave Canada after his stay. He relied
mainly on the fact that the applicant had not respected the validity of his
visitor’s visa:
Given that subj has remained beyond the
validity period of his initial visitor status, given that he originally
declares he wanted to stay one month only in Canada to visit his cousin
and that he has been in Cda over 8 months, given that I have very little
evidence on file of his ties to his home country, given his previous travel
history which is very limited, I am not satisfied subject would depart at the
end of the authorized stay. (Notes STIDI)
[16]
However,
it is apparent from the evidence in the record that this criticism was
unfounded as the applicant had always intended to respect the conditions of his
visitor’s visa. The work permit application had originally been sent to the consulate
in New York on March 17, 2010, while the applicant was still within the rules
and had a valid status in Canada. This first submission had been accompanied by
the form “Application
for Temporary Resident Visa Made Outside of Canada” for renewal of his
visitor’s visa and on which it was clearly marked: “M. Youssef must travel
abroad for work and therefore needs to renew his visitor visa with multiple
entry”. Instead of being processed immediately, this renewal application was
sent back to the applicant along with the entire file for the rectification of
fees.
[17]
The
applicant also re-submitted a work permit application accompanied by the exact
fees on May 24, 2010. In the list of documents submitted (Document Checklist-Worker),
also filed in evidence, the form “Application to Change Conditions, Extend My
Stay or Remain in Canada” was checked as being part of the application.
[18]
This
information is essential as it demonstrates that the applicant never intended
to exceed the period of validity of his temporary resident permit. The presence
of these documents should have at least raised a doubt in the mind of the visa
officer that the applicant never intended to exceed the period of validity of
his visitor’s visa and, therefore, that he also never necessarily intended to exceed
the period of validity of his work permit.
[19]
Thus,
the visa officer should have at least provided the applicant with the
opportunity to provide explanations as to his intention to remain in Canada after
his stay, which would have allowed him to address his concerns. The applicant
should not be penalized as he always intended to act in accordance with Canada’s
immigration laws. Given the facts in this case, this failure constituted a
breach of the principles of natural justice.
[20]
In
such a case, it is therefore unnecessary to determine whether the visa
officer’s decision was reasonable.
[21]
For
these reasons, the application for judicial review is allowed and the matter is
returned to another visa officer for redetermination.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the
application for judicial review be allowed and that the matter be returned to another
visa officer for redetermination.
“Danièle Tremblay-Lamer”
Certified
true translation
Janine
Anderson, Translator
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