Date: 20080530
Docket: IMM-3660-07
Citation:
2008 FC 692
Ottawa, Ontario, May 30, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
Madre
Erielle KIBANGOUD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision
rendered by a visa officer (the officer) on June 27, 2007, refusing
the applicant’s application for a study permit.
[2]
The
applicant is a citizen of Congo-Brazzaville. She applied for a study permit at
the Canadian embassy in Dakar, Senegal, to obtain
authorization to pursue a program of studies at the Université de Montréal in Canada.
[3]
In her
decision, the officer refused the application because she was not satisfied
that the applicant had the financial resources to pay for her tuition and
accommodations during her stay in Canada or that she would leave Canada at the
end of the period authorized for her stay.
Preliminary objections
[4]
The
respondent is claiming that the applicant provided no valid affidavit in
support of her application. The only affidavit on the record was signed by
Claude François Itsouhou and provides general information on his own personal
situation, as well as his personal opinion of the refusal of the application
for a study permit.
[5]
In such a
case, “where there is no evidence based on personal
knowledge filed in support of an application for judicial review, any error
asserted by an applicant must appear on the face of the record” (Turcinovica v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 164, [2002] F.C.J. No. 216
(QL), at para. 14; Moldeveanu v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 55 (QL), at para. 15).
[6]
The
respondent is raising a second preliminary objection concerning the filing of
documents that were not in evidence before the officer.
[7]
Case law
has established that a review of the merits of an impugned decision is
conducted based on the evidence that is before a tribunal when it renders the
decision (Zolotareva v. Canada (Minister of Citizenship and Immigration),
2003 FC 1274, [2003] F.C.J. No. 1596 (QL), at para. 36; see Noor v.
Canada (Human Resources Development), [2000] F.C.J. No. 574 (QL), at para.
6; Rodbom v. Canada (Minister of Employment and Immigration), [1999]
F.C.J. No. 636 (QL), at para. 1). Consequently, those documents will be
disregarded in the analysis of this case.
Standard of review
[8]
The
applicant is claiming that the officer made erroneous findings concerning the
sufficiency of the applicant’s financial resources and her intention to leave Canada after her studies are
finished.
[9]
Based on
the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9 and on this
Court’s previous case law, I conclude that the applicable standard of review is
reasonableness.
[10]
As for
procedural fairness issues, namely, the invitation to an interview and request
for additional information, they are not subject to the standard of review. “It is for the courts, not the Minister, to provide the legal answer to
procedural fairness questions” (Canadian Union of Public Employees
(C.U.P.E.) v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539, [2003] S.C.J. No. 28 (QL), at
para. 100).
Analysis
[11]
To obtain
a study permit, an applicant must meet the admission criteria set out in the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
Specifically, under section 216 of the Regulations, the applicant must
demonstrate to the officer that they “will leave Canada by the end of
the period authorized for their stay”
and, under section 220, that they have sufficient and available financial
resources to “pay the tuition fees for the course or program of studies
that they intend to pursue”, “maintain themself and any family members who are
accompanying them during their proposed period of study” and “pay the costs of
transporting themself and the family members … to and from Canada”. The onus is on the applicant
to establish all of these criteria (Ramzi v. Canada (Minister of Citizenship and
Immigration),
2007 FC 486, [2007] F.C.J. No. 656 (QL), at para. 14).
[12]
In regard
to this, the applicant indicated on form IMM1294 that her expenses in Canada would be covered by her
parents or herself. In addition, in a document entitled [Translation] “Funding”, she stated that
her father undertook to cover all of her expenses relating to tuition, her
university needs and her stay in Canada.
In contrast, a document entitled [Translation]
“Parental Authorization for the Purposes of Guardianship”, on which Mr.
Itsouhou’s name appears, indicates that [Translation]
“[Mr. Itsouhou] undertakes to ensure the care and education of the applicant in
order to promote her development”, a statement that does not explicitly
indicate that he would act as financial guarantor.
[13]
According
to the information on the record, the amount of money needed for a year of
study in Canada is approximately $22,000, in
the applicant’s case. The applicant submitted a bank confirmation in her name
from the National Bank of Canada indicating that she has been
a client of that bank since October 2006 and that she has $11,005. In
addition, the applicant stated that the guarantor, her father, is a customs
inspector and his monthly salary is equivalent to CAD$1,036.44. The record
shows that he has five dependants, and his bank statement from MUCODEC
indicates that this salary is the family’s only source of income. Thus, the officer
was not satisfied that the applicant’s father could provide for the needs of
the family in Congo-Brazzaville and pay for the applicant’s studies in Canada with his monthly salary of
CAD$1,036.44.
[14]
In light
of this evidence, it was not unreasonable, in my opinion, for the officer to
conclude that the applicant’s financial resources were insufficient to cover
the costs of the proposed period of study in Canada.
[15]
The
applicant is also claiming that the officer breached her duty of fairness by
not granting the applicant an interview and not asking her to provide
additional information to clarify the situation.
[16]
First, I
note that, the day after the applicant filed her application, after it was
first examined, the Canadian embassy in Dakar sent the applicant a letter, asking her
to provide additional information in order to satisfy the officer that she had
sufficient resources to pay for studies in Canada.
[17]
Second, it
is settled law that an applicant does not have the right to an interview by
reason of the fact that there is insufficient supporting evidence (Ramzi,
supra, at para. 24; Dardic v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 150, [2001] F.C.J. No. 326 (QL), at para. 18). It was up to the
applicant to send the officer all of the evidence that could satisfy her
regarding the applicant’s financial capacity.
[18]
In this
case, the officer did not have a duty to request additional information again
or to invite the applicant for an interview.
[19]
Consequently,
the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be dismissed.
“Danièle
Tremblay-Lamer”
Certified true
translation
Susan Deichert, Reviser
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