Date: 20080229
Docket: IMM-2599-07
Citation: 2008 FC 276
Montréal, Quebec, February 29, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
GHAZI
KHATOON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), for judicial review of a
decision of a visa officer (the “officer”), dated June 1, 2007, wherein the officer
refused the applicant’s application for a temporary resident visa in the
visitor class (a “visitor’s permit”).
BACKGROUND
[2]
The applicant is a citizen of Pakistan. She applied for a visitor’s
permit in order to attend her granddaughter’s wedding. The application was
received along with a letter of invitation from the applicant’s grandson at the
Canadian High Commission in Islamabad, Pakistan on May 22, 2007.
[3]
The officer refused the application, checking
off the boxes corresponding to the following two reasons on the standard
refusal letter:
·
You have not satisfied me that you meet the
requirements of Regulation 179: that you would leave Canada at the end of the temporary period if you were authorized to stay.
In reaching this decision I considered your ties to your country of
residence/citizenship balanced against factors which might motivate you to stay
in Canada.
·
You have not provided sufficient documentation
to support your/your host’s income and assets.
[4]
In the present case, the applicant challenges
the officer’s findings that she would not leave Canada at the end of an authorized stay, and that she had not provided
sufficient documentation to support her or her host’s income and assets. As
these findings are highly fact-based, the standard of review applicable is that
of patent unreasonableness (Danioko v. Canada (Minister of Citizenship and Immigration), 2006 FC 479, [2006] F.C.J. No. 578 (QL), at para.1; Zhang v. Canada (Minister of Citizenship and
Immigration), 2005 FC 427, [2005] F.C.J. No. 529
(QL), at para. 6).
[5]
Accordingly, the officer’s findings will remain
undisturbed unless they are “clearly irrational” or “evidently not in
accordance with reason” (Canada (Attorney General) v. Public Service
Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963-64).
[6]
At the outset I find it useful to examine the
scope of discretion within which the factual findings at issue were made. An
indication of the scope of discretion can be found in the objectives of the Act
and the ministerial guidelines (Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 (QL), at para. 67).
[7]
The objectives of the Act suggest that family
reunification is an important consideration. Particularly, section 3.(1)(d)
stipulates that one of the objectives of the Act is “to see that families are
reunited in Canada”.
Instructively, in Gupta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099 (QL), at para. 11, in the context of the
previous Act, Gibson J. held that “the wording of this paragraph is broad
enough to encompass the reunion in Canada of Canadian citizens and permanent
residents […] with their close relatives from abroad.” Moreover, in Zhang,
supra, at paras. 8-9, Pinard J. cited these comments with approval in
the context of the current Act.
[8]
On the issue of the importance of family
reunification in the discretionary decision-making context, the applicant has
drawn to the Court’s attention to the associated ministerial guidelines.
Specifically, section 5.13 of Chapter 11 of the Overseas Processing Manual,
(the “OP 11 manual”):
Parents and grandparents
In April 2005,
the Minister of Citizenship and Immigration made a policy decision to encourage
visa officers to be more flexible in issuing temporary resident visas (TRVs),
including multiple entry visas, to parents and grandparents:
• who have
applications for permanent residence in process, and
• who wish to
visit but do not intend to immigrate to Canada.
[9]
A review of the CAIPs notes indicate that the
visa officer was conscious of the fact that the applicant had 4 children in
Pakistan, had travelled abroad previously to Saudi Arabia, had a son in Canada
who was out of status, and a grandson who was a Canadian citizen. Further, the
officer noted that the tax documentation from the grandson and his wife
indicated a “decent income”, but no proof was provided of the grandson’s or his
wife’s employment and/or savings, or proof of the applicant’s funds.
[10]
The affidavit submitted by the visa officer,
dated September 24, 2007 expands upon the CAIPs notes. Particularly, the
officer indicates at para. 9, that because the applicant’s son had remained in Canada without status, she might be willing
to do the same. Further, at para. 10, he asserts that based on his knowledge of
certain cultural practices in Pakistan, specifically that widowed elderly women
normally live with their sons and not daughters, the fact that the applicant’s
only son was living in Canada
was a concern. He also indicates at para. 13, that the applicant’s trip to Saudi Arabia is not usually considered to
be major international travel.
[11]
With respect to the first finding, that the
officer was not convinced that the applicant would leave Canada upon expiry of the relevant period,
I find the officer’s conclusion to be patently unreasonable.
[12]
First, the fact that her son was in Canada out of status cannot be used to
impute similar conduct to the applicant. People are to be judged according to
their own behaviour, not on that of their family members.
[13]
Second, while I appreciate the insights that the
officer may have gained through his time Pakistan, the mere fact that elderly
widowed women normally, in the view of the officer, live with sons and not
daughters, cannot be used to attack the bona fides of the applicant’s
application. This type of gross generalization is patently unreasonable.
[14]
Third, the officer disregarded the applicant’s
previous trip to Saudi Arabia,
stating that “a trip to Saudi Arabia is not usually considered to be major international travel in the
context in which I assess applications for temporary residence”. With respect,
a trip from Pakistan to Saudi Arabia is international travel.
[15]
With regards to the officer’s findings relating
to the documentation of funds. The tax returns of the applicant’s grandson and
his wife were submitted. The officer was satisfied that the income of the host
and his wife was decent. I note that in the context of determining whether
sufficient funds are available, section 7 of Chapter 11 of the Overseas
Processing Manual, (the “OP 11 manual”) indicates:
When warranted,
officers may consider a combination of any of the following documents as
evidence of ability to support an intended visit. The list is not exhaustive
but demonstrates various resource documents that may be presented:
♦ bank
statement(s) or deposit book(s) of applicant (and spouse) that show accumulated
savings;
♦
applicant’s (and spouse’s) letter of employment or employment book, providing
name of employer, applicant’s position/occupation, date employment commenced
and annual
earnings;
♦ host’s
or family member in Canada (and spouse’s) evidence of income: previous year
Revenue Canada Notice of Assessment indicating annual income; or alternately,
letter from employer(s) showing position, date employment commenced and annual
earnings;
♦
evidence of size of family for host or family member in Canada (to equate earnings with size of
family to ensure ability to support long-term visit); [Emphasis added.]
While
the officer is free to consider a combination of any of the listed documents, given
that the he was satisfied that the income from the host and spouse was decent,
it was patently unreasonable to require that the applicant, a woman in her 80s,
produce evidence of her personal funds as well.
[16]
For these reasons, the application for
judicial review of the visa officer’s decision is granted. The decision of the
visa officer is quashed. The matter is remitted back for re-determination by a
different visa officer.
JUDGMENT
THIS COURT
ORDERS that the
application for judicial review of the visa officer’s decision is granted. The
decision of the visa officer is quashed. The matter is remitted back for
re-determination by a different visa officer.
“Danièle
Tremblay-Lamer”
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