Date: 20080603
Docket: IMM-4199-07
Citation: 2008 FC 697
Toronto, Ontario, June 3,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
MOJISOLA ODEWOLE
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant seeks review, under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), of
a decision of a Non-Immigration Officer, Immigration Section (Officer),
Canadian Consulate General in New York, U.S.A., rendered on August 20, 2007,
wherein the Officer determined that the applicant did not meet the requirements
for a Canadian study permit and refused her application
I. The facts
[2]
A
citizen of Nigeria, the
applicant received a Temporary Resident Visa (TRP) by the Canadian visa office
in Tunis, Tunisia, on
October 2, 2006. The applicant’s request for a TRP was made to assist a
Canadian couple in taking care of their children on the family’s return to Canada, and failed
to mention that her employers were actually her sister and brother-in-law. The
applicant also stated on that occasion that she had no intention to establish
herself in Canada and failed
to mention that her sister was sponsoring the applicant as a dependant of the
applicant’s mother.
[3]
She
arrived in Canada as a visitor
on November 26, 2006 in order to assist her sister and brother-in-law, both
Canadian citizens and presently residing in Canada, with their
children. Her visa, originally valid until December 31, 2006, was later
extended until December 1, 2007.
[4]
The
applicant’s sister was informed by a letter, dated March 15, 2007, that she was
eligible to sponsor the applicant’s mother in support of her application for
permanent residence in Canada. The applicant was included as a dependant
child in her mother’s application for permanent residence.
[5]
The
applicant was admitted to the York University in Toronto on July 19,
2007.
[6]
In
a letter to the Consulate General in New York, dated July 21, 2007,
the applicant’s sister and brother-in-law undertook to sponsor the applicant in
support of her application for a Canadian study permit. On July 24, 2007, the
applicant submitted her application for a study permit at the Canadian
Consulate General in New York.
[7]
The
application was refused because the applicant failed to demonstrate that her
obligations or ties to her home country are such that would compel her to leave
Canada following the completion of her studies and because the Officer was not
satisfied that the applicant had dual intent pursuant to section 22(2) of the
Act.
[8]
The
applicant seeks judicial review of the Officer’s decision.
II. The Officer’s Decision
[9]
The
Officer filed an affidavit in response to this application for judicial
review. The Officer noted that the visa office in Lagos refused to
issue study permits to the applicant three times in 2003 and that the applicant
had been in Tunisia since June
2006 and was in the employ of her brother-in-law. The Officer observed that
the documents in the file did not establish that the applicant had been a
student since 2004, which raised the Officer’s concerns regarding the applicant’s
eligibility as a dependant child in relation to the family class sponsorship.
The Officer came to the following conclusion:
Given the time that the Applicant had
been absent from her home country, the circumstances of her entry into Canada,
… her ties with Canada, and the approved family class sponsorship for her
family, I came to the conclusion that the Applicant did not meet the
requirements for a study permit and as a temporary resident, for she did not
demonstrate to my satisfaction that her obligations in or that her ties to her
home country are such that would compel her to leave Canada by the end of her
authorized stay in the event her application for permanent residence is not
approved, pursuant to s. 22(2) of IRPA.
III. Issues
1.
Did
the Officer err in concluding that the applicant’s ties to her home country are
such that they would not compel her to leave Canada by completion of her
studies in the event the applicant is not granted permanent residence in Canada?
2.
Did
the visa officer breach the principles of natural justice by not giving the
applicant the opportunity to address his concerns?
3.
Did
the visa officer rely on extraneous considerations in reaching its negative
decision?
IV. Standard of Review
[10]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 51, the Supreme
Court of Canada states that “[…] questions of fact, discretion and policy as
well as questions where the legal issues cannot be easily separated from the
factual issues generally attract a standard of reasonableness while many legal
issues attract a standard of correctness. Some legal issues however, attract
the more deferential standard of reasonableness”. Since the issues here raise
mixed questions of law and fact, the Court finds the standard of review to be
that of reasonableness.
[11]
This
standard requires the Court to engage in a somewhat probing examination of the
reasons for a decision while also recognizing that, where there is some level
of expertise or familiarity with the subject matter on the part of the decision
maker, some measure of deference is owed. The Court’s analysis of
the Board’s decision will therefore be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] […] whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above, at paragraph 47).
V. Relevant Legislation
[12]
The
legislation relevant to this application is subsections 20(1)(b) and 22 of the
Act and subsections
212 and 216(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations) reading
as follows:
|
The Act
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.
22. (1) A foreign national
becomes a temporary resident if an officer is satisfied that the foreign
national has applied for that status, has met the obligations set out in
paragraph 20(1)(b) and is not inadmissible.
(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.
The
Regulations
212. A foreign national may not study in Canada unless authorized to do so
by a study permit or these Regulations.
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
(a) applied for it in accordance with this Part;
(b) will leave Canada by the end of the period authorized for their stay under Division
2 of Part 9;
(c) meets the requirements of this Part; and
(d) meets the requirements of section 30;
[...]
|
La Loi
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.
22. (1) Devient résident temporaire
l’étranger dont l’agent constate qu’il a demandé ce statut, s’est déchargé
des obligations prévues à l’alinéa 20(1)b) et n’est pas interdit de
territoire.
(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.
Les Règlements
212. L’étranger ne peut étudier au Canada sans y être autorisé par un permis
d’études ou par le présent règlement.
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 :
a) l’étranger a
demandé un permis d’études conformément à la présente partie;
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;
c) il remplit
les exigences prévues à la présente partie;
d) il satisfait
aux exigences prévues à l’article 30.
[...]
|
VI. Analysis
[13]
Having
regard to the Law and the evidence that was before the Officer, his findings do
not meet the standard of reasonableness for the following reasons.
[14]
Pursuant
to subsection 22(2) of the Act, a person seeking a temporary entry into Canada may also
hold the intention of establishing permanent residence.
[15]
The
Officer was therefore required to weigh the evidence in connection with the
application for a study permit and assess the applicant’s intention to leave Canada at the end
of her studies under paragraph 20(1) (b) of the Act and subsection 216(1) of
the Regulations.
[16]
The
Officer was not dealing with the family application for permanent residence,
and the issue of dual intent arose only in relation to that application. The
application for permanent residence was an irrelevant consideration for the
purposes of the applicant’s application for a Canadian study permit.
[17]
Although
in her affidavit the Officer acknowledged that she lacked jurisdiction to
assess the applicant’s eligibility for permanent residence under the family class
sponsorship, she nevertheless took this factor into account, as evidenced by
the above summary of the factors cited by the Officer. Thus, the Officer
committed a reviewable error. Moghaddam v. Canada (Minister of
Citizenship and Immigration), 39 Imm. L.R. (3d) 239, 2004 FC 680
(F.C.).
[18]
Such
an approach is unacceptable in respect of the facts and law, and therefore the
decision does not meet the test of reasonableness and will be set aside.
[19]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING REASONS THIS COURT allows the application, sets aside the
decision of the visa officer, and refers the matter to a different officer for
redetermination.
“Maurice E. Lagacé”
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