Docket: IMM-6137-10
Citation: 2011 FC 850
Ottawa, Ontario, July 8,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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TIRU ANIMUT KINDIE
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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]
The
applicant seeks to set aside a decision dated August 24, 2010 of a Visa
Officer at the Canadian Embassy in Nairobi, Kenya, denying the applicant’s application for a work
permit. The visa request was denied on the basis that the Visa Officer was not
satisfied that the applicant would leave Canada by the end of the period
authorized due to her social and economic situation in her country of residence.
[2]
The principles governing judicial review of decisions of
visa officers with respect to work permits are well established. First, the
officer’s discretion is framed by subsection 11(1) of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA)
and section 179 of the Immigration and Refugee Protection Regulations
(SOR/2002-227) (the Regulations), which together provide that the officer shall
issue a visa if it is established that the foreign national will leave Canada
at the end of the period authorized by the visa.
[3]
Second, the decisions are highly discretionary and the
findings of fact are entitled to deference; see Boughus v Canada
(Citizenship and Immigration), 2010 FC 210.
[4]
Third, there is an onus on a foreign national seeking to
enter Canada to rebut the presumption that they are entering as an immigrant; Danioko
v Canada (Minister of Citizenship and
Immigration), 2006 FC 479.
[5]
Fourth, the degree of procedural fairness that is required
in the context of a work permit application from abroad falls at the low end of
the spectrum; Arias Bravo v Canada (Citizenship and Immigration), 2010
FC 411.
[6]
Fifth, consistent with the minimal duty of fairness,
there is no obligation to provide lengthy reasons, but that the officers
notes do form part of the reasons for decision; Bravo, above.
[7]
Sixth, simply because an officer’s reasons indicate factors
which the officer considers determinative does not mean that
the other evidence was ignored; Boughus, para 56. The
weight to be assigned to each factor is a matter for the officer’s discretion; Baylon
v Canada (Citizenship and
Immigration), 2009 FC 743.
[8]
Finally, the respondent cannot, through a supplementary
affidavit, fill in the gaps in the record or the reasoning by
identifying further factors or considerations. Affidavits may be
required where there are allegations of unfairness but as a general rule
the respondent cannot buttress the record with after the fact analysis.
[9]
On August 24, 2010, the Canadian High Commission in Nairobi,
Kenya issued a decision denying the applicant a work permit. She
had a job offer for an eight-month period for a position as a cook at her
half-brother’s restaurant in Hamilton and her application
was supported by a Labour Market
Opinion from Service Canada.
[10]
The Visa Officer refused the application without an
interview on the basis that the officer was not satisfied that the applicant
would leave Canada by the end of the period authorized for
her stay because of the social and economic situation in her country of
residence. The Computer Assisted Immigration Processing System (CAIPS) notes
elaborate on the officer’s reasons:
As for PA - personal economic situation appears weak. Duration
of employment is for 8 months. Given family history to Cda, have concerns for
BFs. (MTR made RR claim recently). Not satisfied that PA has strong economic
ties to ensure return and wld depart Cda following admission. Refused.
[11]
The family history to which the Visa Officer referred was
the arrival of the applicant’s mother “(MTR)” to Canada on a
visitor’s visa to visit the applicant’s half-brother. Upon arrival, the
applicant’s mother made a claim for refugee status.
[12]
While I agree with Mr. VanderVennen that the analysis of the applicant’s economic and social
ties to Ethiopia is weak, there is some support for the
concern given the finding that the applicant had only four years work
experience and a high school education. The Visa Officer emphasized the salary
differential between the applicant’s position in Ethiopia and her
prospective salary in Canada. This was, in and of itself,
insufficient basis upon which the visa could be rejected.
[13]
There must be an objective reason to question the
motivation of the applicant. It is inconsistent with the purpose and object of
the statutory and regulatory scheme authorizing temporary work visas to rely on
the very factor that would induce someone to come to Canada in
the first place as the basis for keeping them out. The scheme itself is
predicated on the assumption that people will come to Canada to
seek work in order to better their economic situation. It is for this
reason that decisions of this Court have consistently held that economic
reasons to overstay will not, in and of themselves, support a refusal; Cao v
Canada (Citizenship and Immigration), 2010 FC 941, per Justice Martineau J;
Khatoon v Canada (Citizenship and Immigration), 2008 FC 276, per Justice
Temblay-Lamer; Dhanoa v Canada (Citizenship and Immigration), 2009 FC 729,
per Justice Harrington; and Rengasamy v Canada (Citizenship and Immigration),
2009 FC 1229, per Justice O'Reilly.
[14]
The Visa Officer had however, objective evidence that constituted
a sufficient basis for concern about the bona fides of the application
and the applicant’s commitment to return to Ethiopia
at the end of the visa. The applicant’s mother had been
issued a visitor’s visa by the same High Commission in Nairobi and
claimed refugee status on arrival. She is now residing in Hamilton,
Ontario where the applicant proposes to work. This second
consideration, in and of itself, supports the reasonableness of the Officer’s
conclusion that it had not been established that the applicant would return to
her country of origin. Officers are required to situate applications in their
broader context and it would be unreasonable to require the Visa Officer to
turn a blind eye to the surrounding circumstances, including the recent conduct
of family members.
[15]
The application for judicial review is dismissed.
[16]
No question for certification.
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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