Date: 20110519
Docket: IMM-1735-10
Citation: 2011
FC 583
Ottawa, Ontario,
May 19, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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KINGSLEY BAFFOUR KWAKYE
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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 under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision
of a visa officer (the officer) in Accra, Ghana, dated March 11, 2010, wherein
the officer denied the applicant’s application for a temporary resident visa.
[2]
The
applicant requests that the decision of the officer be set aside and the matter
referred back for redetermination by a different officer.
Background
[3]
Kingsley
Baffour Kwakye (the applicant) was born on December 14, 1961 and is a citizen
of Ghana.
[4]
The
applicant states that he has been married to Ernestina Eson, a permanent
resident in Canada, since February 1997.
[5]
Together
the couple has two Canadian born children who the applicant states lived with
him in Ghana from September 1998
until October 2008, when they returned to Canada.
[6]
In
2009, the applicant’s wife experienced serious mental health issues which required
police intervention. Following the first incident, the children were sent to live
at their grandmother’s home and following the second incident, at the home of
their mother’s cousin.
[7]
The
Children’s Aid Society of Toronto (CAS) commenced a child protection
application in the Ontario Court of Justice on September 10, 2009. On October
10, 2009, the children were placed in foster care by CAS.
[8]
The
applicant has been in contact with CAS since December 2009. He first applied
for a temporary resident visa to Canada in February 2010 in order to attend the child
protection proceedings. This application was denied.
[9]
The
applicant re-applied for a temporary resident visa. This application included:
- A letter from his
sponsor in Canada
- A letter from his
sponsor’s employer
- A letter from CAS
- A plane ticket
- A letter from Mr. Justice
Bovard of the Ontario Court of Justice
- Pay slips from
Commodities Consortium Exports Ltd. indicating a monthly salary of
3,004.45 Ghanian Cedis (GHC)
- An account balance
of 2,974 GHC
- His vehicle
registration
Officer’s Decision
[10]
The
officer refused the visa application finding that the applicant had not
demonstrated that he would leave Canada at the end of the
temporary period.
[11]
The
officer’s principal concerns were:
(a) the applicant’s
travel history;
(b) his family ties in
Canada and Ghana;
(c) that the applicant
did not show sufficient funds to carry out his intended purpose; and
(d) the lack of
evidence, such as birth or marriage certificates, of the relationship between
the applicant and the children or his wife in Canada.
[12]
The
officer was not satisfied that applicant was a genuine visitor.
Issues
[13]
The
applicant submitted the following issues for consideration:
1. What is the correct
standard of review with respect to the decision of a visa officer?
2. Did the officer err
in denying the applicant’s temporary resident visa?
3. Were the reasons
sufficient to satisfy the requirements of procedural fairness?
4. Were these findings
of the officer erroneous findings of fact made in a perverse of capricious
manner or without regard to the material before him?
[14]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the officer’s
decision provide adequate reasons?
3. Was the officer
required to provide the applicant with an interview?
4. Was the ultimate
decision within the range of possible, acceptable outcomes?
Applicant’s Written Submissions
[15]
The
applicant submits that the officer erred in determining that he did not meet
the eligibility requirements of the Act. Given all of the documents supporting
the application, there was no evidence that the applicant did not intend to
leave Canada.
[16]
The
applicant argues that it was unreasonable for the officer to consider the
applicant’s lack of travel history as a negative factor since there was
uncontradicted evidence that the purpose of the applicant’s travel was to
participate in a child protection proceeding with a view to returning to Ghana with his
children.
[17]
The
applicant further submits that even considering his family connections in Canada, there was
evidence before the officer of the applicant’s ties to Ghana and nothing
suggested he intended to stay in Canada permanently. Further,
had the applicant intended to live in Canada, he would have applied
earlier to be sponsored by his spouse.
[18]
The
applicant submits that the officer based his decision on speculation and failed
to consider the reasons and purpose for the travel. The officer considered
improper criteria and made erroneous findings of fact ignoring the urgings of
CAS and a Judge of the Ontario Court of Justice.
[19]
Finally,
the applicant submits that the officer did not meet the duty of procedural
fairness as the reasons were inadequate and the officer ought to have convoked
an interview for the applicant to respond to any concerns that he was not a
genuine visitor.
Respondent’s Written Submissions
[20]
The
respondent submits that the officer’s decision was reasonable. The officer
considered the applicant’s current and usual account balance and determined
that he had insufficient funds to carry out his intended purpose of travel,
namely litigation. This, coupled with the absence of previous travel and the
applicant’s family ties in Canada, were a reasonable basis to determine that
the applicant would not leave at the end of an authorized stay.
[21]
The
officer considered the letters from CAS and Justice Bovard, but found that the
applicant had not adduced evidence of his relationship with the children or his
claimed spouse.
[22]
The
respondent submits that the onus rested with the applicant to present a clear
application and supporting documents. There was no entitlement to an interview
if the application is ambiguous or missing material.
Analysis and Decision
[23]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence has
determined the standard of review applicable to a particular issue, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[24]
Decisions
of an officer to issue or refuse a temporary resident visa involve
determinations of mixed fact and law and are generally afforded deference by
this Court (see Ngalamulume c Canada (Ministre de la Citoyenneté et de
l'Immigration), 2009 FC 1268 at paragraphs 15 and 16).
[25]
However,
any issues of procedural fairness involving a visa officer will be determined
on the correctness standard (see Khosa v Canada (Minister
of Citizenship and Immigration), 2009 SCC 12 at paragraph 43.)
[26]
I
will address issue 4 first.
[27]
Issue
4
Was the
ultimate decision within the range of possible, acceptable outcomes defensible
on fact and law?
The officer’s principal
concerns as outlined in the CAIPS notes were that the applicant did not have
sufficient funds for his intended purpose and had not established his
relationship with the children. I agree with the applicant that both of these
findings were unreasonable.
[28]
Concerning
the applicant’s relationship with the children, although he did not submit
their birth certificates, there was evidence before the officer that the
applicant was in fact their father. A letter from CAS submitted in the
application, notes that “[o]ne of the Respondents in this case is the
children’s biological father, Mr. Kingsley Baffour Kwakye (date of birth
December 14, 1961)…”.
[29]
Likewise,
Mr. Justice Bovard stated in another letter that:
Mr. Kingsley Kwakye is currently trying
to obtain a visa to come to Canada to participate in this case.
This court considers his participation very important as the case has to do with
his children…. This court urges the Canadian immigration official to do
everything possible to expedite Mr. Kwakye’s application for a visa to come to Canada so that the court may have
the benefit of his participation in this case.
[30]
It
was unreasonable for the officer to find that there was no evidence of a relationship
between the applicant and the claimed children.
[31]
While
the applicant did not provide a marriage certificate or other documentary
evidence of his marriage to his wife, it was unreasonable for this to be
determinative for the officer. As the applicant, CAS and Mr. Justice Bovard
stated, the purpose of the travel was to attend a court proceeding to gain
custody of his children and return to Ghana. Evidence of his
relationship with his wife was unnecessary to determine whether he was a
genuine visitor for this purpose.
[32]
Finally,
the officer found that the applicant did not have sufficient funds to carry out
his intended purpose. The officer does not expand on this finding.
[33]
The
applicant supported his application with evidence which included a plane
ticket, pay slips from his employer, evidence of his account balance, his
vehicle registration and a letter from his host.
[34]
In
the letter from his host, Lydia Acheampong-Yeboah, she states that:
Kingsley might stay in Canada approximately three weeks or
less. He will live with me at the above address and I will provide for his
living expenses.
[35]
There
was no evidence before the officer that the applicant intended to be
represented by counsel at the child protection proceeding. The applicant makes 3,004.45GHC
per month and his bank account contained just. Given that his host indicated
that she would provide for him during his stay in Canada and given
that he had already provided an airline ticket, it was unreasonable for the
officer to determine that he had insufficient funds for his intended purpose
without further explanation.
[36]
The
officer’s refusal of the temporary visitor visa was not within the range of
acceptable outcomes and therefore unreasonable under Dunsmuir above.
[37]
As
a result, the application for judicial review must be allowed, the decision of
the officer is set aside and the matter is referred to a different officer for
redetermination.
[38]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[39]
IT IS ORDERED
that the
application for judicial review is allowed, the decision of the officer is set
aside and the matter is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee
Protection Act, SC 2001, c 27
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72. (1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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