Date: 20110615
Docket: IMM-4839-10
Citation: 2011 FC 694
Montréal, Quebec, June 15, 2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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MELANIE LOVERIDGE
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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, pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a
decision of a visa officer with the High Commission of Canada in the United
Kingdom, dated July 28, 2010, whereby the applicant’s application for a study
permit was refused.
[2]
Counsel
for the applicant requested that the style of cause be amended in order to
identify the applicant with her complete name instead of an initial.
I. Background
[3]
The
applicant is a citizen of the United Kingdom (UK). Between 2006 and 2009, she
attended Hartpury College in
Gloucestershire where she studied animal care and animal management.
[4]
On
March 22, 2010, she was accepted into the Pre-Health Sciences program at Georgian College in Ontario for the
2010-2011 school year. She was also conditionally accepted into the school’s
Veterinary Technician program for the subsequent year.
[5]
She
applied to the High Commission of Canada in the UK for a
Canadian study permit at the end of March 2010. She indicated in her
application that her husband would be accompanying her to Canada.
[6]
The
applicant submitted a “motivation letter” in support of her application which
read, in part:
I have decided to study on the Pre Med
Science course and the Veterinary Technician course in Canada as I wish to start a fresh life in Canada and make the most of
learning. I chose these courses as I have a passion for animals and veterinary
science. By starting a new life in Canada
I believe I will be happier in a country where there are more job
opportunities. Now that I have been accepted onto the pre med science course I
can make the most of learning as much as I can.
…
I have chosen not to study in England as there are not many college
places available as the veterinary profession is very competitive. If I had
applied to college in England and achieved my educational
goals it would be very difficult to find a job because of the recession and
because too many people here want to work with animals. There are very few
animal related jobs in England and as I have been told there is no shortage of
animal jobs available in Canada.
…
If I took a course in England I would be qualified to do
what I want to do in the veterinary profession but, the chances of finding a
job in the veterinary profession would not be very good as there are so many
people looking for the same type of job. When I return to the UK I will be able to get my Canadian
qualification evaluated to a UK standard. Since work in the
animal care field in the UK is very competitive, I am confident that UK employers will value my Canadian
qualification and experience. This combined with the qualifications and
experience I have already gained from the UK should put me in a stronger position to
find employment upon my return to the UK.
My family and friends are based in the UK.
II. The
decision under review
[7]
By
letter, dated July 28, 2010, a visa officer with the High Commission of Canada
in the UK found that
the applicant had not met the requirements set out in the IRPA to
warrant granting a study permit. The officer explained the decision as follows:
You have not demonstrated sufficient ties
to the U.K. to satisfy me that you have dual intent and will leave Canada at the end of the period
authorized for your stay.
[8]
In
a Computer Assisted Immigration Processing System (CAIPS) note dated July 23,
2010, the officer indicated that both the applicant and her husband were
unemployed in the UK, that they had both experienced difficulty becoming
established there, that there was no proof that they owned property there, and
that the bank documents that they had submitted did not provide any detail as
to the ownership of the associated accounts. She found that the applicant and
her husband had few ties to the UK and concluded that she
was “not satisfied” that they would return to the UK if they were refused
permanent status in Canada.
III. Issue
[9]
Only
one issue arises for consideration on this application:
Did the officer err by
finding that the applicant had not demonstrated that she would leave Canada by the end
of the period authorized for her stay?
IV. Standard of review
[10]
The
question of whether or not an applicant will leave Canada by the end of the
period authorized for their stay is a question of fact to be reviewed against
the reasonableness standard (Patel v Canada (Minister of Citizenship and
Immigration), 2009 FC 602 at para 28, 178 ACWS (3d) 428; Wang v Canada
(Minister of Citizenship and Immigration), 2009 FC 619 at para 13, 345 FTR
294 [Wang]). The Court will consider the existence of justification,
transparency and intelligibility within the decision-making process and whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
V. Analysis
[11]
Paragraph
20(1)(b) of the IRPA indicates, in part, that in order to become
a temporary resident, a foreign national must establish that they will leave Canada by the end
of the period authorized for their stay:
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Obligation
on entry
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.
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Obligation
à l’entrée au Canada
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.
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[12]
Paragraph
216(1)(b) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 also indicates that a foreign national applying for a study permit
must establish that they will leave Canada by the end of the period authorized for their
stay:
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Study permits
216. (1) Subject to subsections (2) and
(3), an officer shall issue a study permit to a foreign national if,
following an examination, it is established that the foreign national
…
(b)
will leave Canada by the end of the period authorized
for their stay under Division 2 of Part 9;
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Permis
d’études
216. (1) Sous réserve des
paragraphes (2) et (3), l’agent délivre un permis d’études à l’étranger si, à
l’issue d’un contrôle, les éléments suivants sont établis :
[…]
b) il quittera le Canada à la
fin de la période de séjour qui lui est applicable au titre de la section 2
de la partie 9;
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[13]
Despite
the clear requirement for applicants to establish that they will leave Canada by the end of the
period authorized for their stay, subsection 22(2) of the IRPA nonetheless
allows an applicant for temporary status to apply with the ultimate intention
of becoming a permanent resident. That is to say, “a person may have the dual
intent of immigrating and of abiding by the immigration law respecting
temporary entry” (Rebmann v Canada (Solicitor General), 2005 FC 310 at para
19, [2005] 3 FCR 285). Subsection 22(2) reads:
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Dual
intent
22(2) An
intention by a foreign national to become a permanent resident does not
preclude them from becoming a temporary resident if the officer is satisfied
that they will leave Canada by the end of the period authorized
for their stay.
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Double
intention
22(2)
L’intention qu’il a de s’établir au Canada n’empêche pas l’étranger de
devenir résident temporaire sur preuve qu’il aura quitté le Canada à la fin
de la période de séjour autorisée.
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[14]
The
applicant contends that it was unreasonable for the officer, in light of the
evidence that was presented, to infer on her part an intention to remain
permanently in Canada. She insists that her motivation
letter indicated, at a minimum, a willingness to return to the UK if required and that,
as such, it was unreasonable for the officer to find that she had not
established that she would leave Canada if she were required to do so. She argues that,
in fact, her motivation letter clearly expressed her dual intent: she would stay
in Canada if she had the opportunity to stay but would go back to the UK if required. She
contends that she did not need to have a firm intent to go back to her country
of origin in order to have a dual intent within the meaning of section 22 of
the IRPA.
[15]
The
applicant insists that she was credible and that she did not hold back any
information in her application. She argues that there was no contradiction in
her motivation letter but, on the contrary, that the letter clarified her
intentions. She further argues that the officer made an error when concluding
that the bank statements did not identify the owner of the accounts since the
name NLoveridge appeared on the statements. She further points to the fact that
her family and friends are located in the UK as demonstrating her strong ties to that
country and her motivation to return there. The applicant also submits that no
negative inference should be made from the fact that she and her husband were
unemployed and that she did not have ownership of property in the UK. She contends that
those circumstances could be viewed as reasons for wanting to migrate to
another country, but that they do not support the contention that the applicant
would refuse to leave Canada if required to do so.
[16]
The
respondent, on the other hand, argues that the applicant’s motivation letter
was vague, contradictory, and could not properly be interpreted as supporting a
singular intention of returning to the UK. The respondent submits that the applicant had
the burden of convincing the officer that she would leave Canada by the end of the
period authorized for her stay and that she failed to discharge that burden.
[17]
I
agree with the respondent that the applicant’s motivation letter is
contradictory and unclear. In the first portion of her letter, the applicant
indicates that her intention is to remain permanently in Canada. She speaks of
“starting a new life in Canada” and states that she
“will be happier in a country where there are more job opportunities”. If her
sole intention was to stay in Canada only long enough to complete her studies, as is argued by
the applicant, then the additional job opportunities available in Canada would be of no
relevance. In the latter portion of the applicant’s letter, however, she
indicates that “when” she returns to the UK she will be able to use the
education received in Canada as a competitive
advantage in her job search.
[18]
The
motivation letter, thus, indicates both an intention to stay in Canada as well as an intention
to leave Canada and return to the UK. This is different from indicating a “dual
intent” within the meaning of subsection 22(2) of the IRPA, because that
type of a “dual intent” is actually an intention to remain permanently in Canada, coupled with an
intention to abide by immigration laws as required - i.e. a willingness to
leave Canada if required to do so.
The two intentions involved under subsection 22(2) are complementary, not
contradictory.
[19]
Given
that the intentions expressed in the applicant’s motivation letter appear to be
contradictory, it cannot be said that the officer acted unreasonably in finding
that the letter provided little support for the proposition that the applicant
would leave Canada by the end of the
period authorized for her stay.
[20]
Indeed,
the burden was with the applicant to demonstrate that she would leave Canada at the end of her study
period. As indicated by Justice Russel Zinn in Wang, above, at para 14,
“The Officer is required to assess the evidence presented and weigh that
evidence to determine whether it establishes on the balance of probabilities
that the applicant will leave Canada at the conclusion of [the] study permit.”
[21]
The
officer noted that both the applicant and her husband were unemployed in the UK and had experienced
difficulty becoming established there. She also noted that there was no proof
of property ownership in the UK.
She concluded that the applicant had not demonstrated sufficient ties to the UK
to show that she would leave Canada at the end of the period authorized for her stay. While it
is true that the applicant did indicate in her motivation letter that her
“family and friends are based in the UK”, she did not provide any further detail on
familial or other ties to the UK.
[22]
Ultimately,
even if the officer erred in considering the bank statements, given the
contradictory nature of the applicant’s motivation letter, combined with the
dearth of other evidence indicating that the applicant would leave Canada at the
end of the period authorized for her stay, it cannot be said that the officer
erred in finding that the applicant had not demonstrated dual intent. It is not
the Court’s role to reassess the evidence. The officer’s determination fell
within the range of possible, acceptable outcomes defensible in respect of the
facts and law and was reasonable.
[23]
For
the foregoing reasons, this application for judicial review is dismissed.
[24]
No
questions were proposed for certification and none arise.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed. No
question is certified. The style of cause is amended and the applicant is
identified as Melanie Loveridge.
“Marie-Josée
Bédard”
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