Date: 20131025
Docket: IMM-914-13
Citation: 2013 FC 1083
Ottawa, Ontario, October 25, 2013
PRESENT: The Honourable Mr. Justice S. Noël
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BETWEEN:
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FATMA AHMED
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SAFIA SHABAN
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BASSEL SHABAN
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application for leave and judicial
review filed by a mother and two of her children, Fatma Ahmed [the
principal Applicant], Safia Shaban and Bassel Shaban [together, the
Applicants] pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the “IRPA”] against three decisions of a visa officer dated January 21, 2013, dismissing
their applications for a temporary resident visa [TRV] for Canada under
subsection 11(1) of the IRPA and
section 179 of the Immigration and Refugee Protection Regulations, SOR/2002-227
[the “IRPR”].
I. Facts
[2]
The
Applicants are Egyptian citizens. The principal Applicant is married to
Yasser Shaban, an international PhD student at the École Polytechnique de
Montréal, and they have five children, including Safia Shaban and
Bassel Shaban.
[3]
Yasser Shaban
received his TRV as a student in December 2011 and applied several times
for his wife and children to join him as temporary residents during his studies.
These applications were rejected because the visa officer was not convinced
that the Applicants would leave Canada at the end of their stay.
[4]
The
Applicants filed their last applications in January 2013, which were
rejected on January 21, 2013 by a visa officer because he was not
convinced that they would leave Canada at the end of their temporary residency.
II. Decision
under review
[5]
The
visa officer rendered three identical decisions, one for each of the
Applicants.
[6]
The
visa officer stated that in accordance with subsection 11(1) of the IRPA,
the Applicant must satisfy the visa officer that they were not inadmissible to
Canada and that they meet the requirements listed in the IRPA, which includes
the requirement to convince the visa officer that they will respect their
conditions of admission and leave Canada by the end of the period authorized
for their stay (section 179 of the IRPR).
[7]
The
visa officer then listed a number of factors that he may have taken into
consideration in reaching a decision.
[8]
The
visa officer then concluded that he was not satisfied by the Applicants that
they meet the requirements of the IRPA and the IRPR. More specifically, after
considering the Applicants’ ties with their country of residence/citizenship
and the factors which might motivate them to stay in Canada, the visa officer
concluded that he was not convinced that the Applicants meet section 179
of the IRPR and would leave Canada at the end of their temporary residency. He
also came to this conclusion upon considering the Applicants’ travel history,
the length of the proposed stay in Canada and their personal assets and
financial status.
III. Applicants’
submissions
[9]
The
Applicants submit that the visa officer’s reasons and conclusions were
unreasonable. The visa officer breached procedural fairness by rendering
insufficient reasons in the decision and by failing to provide the principal
Applicant with an opportunity to respond or to be interviewed with respect to the
concerns of the officer.
[10]
First,
the Applicants claim that the visa officer’s conclusions are unreasonable. They
argue having adduced proper and sufficient evidence in order for their
applications to be granted, in particular a letter from the principal
Applicant’s employer granting her leave, proof regarding their financial
situation and bank statements. They add that their travel history cannot hurt
their application as it is not a negative travel history. They further submit
that they have presented evidence to satisfy the relevant conditions listed in
Part 9 of the Immigration Manual (OP-11).
[11]
Second,
with regard to the insufficiency of reasons, the Applicants claim that the visa
officer simply stated that he was not satisfied that the Applicants meet the
requirements of section 179 of the IRPR without providing sufficient
reasons apart from the fact that he considered their ties to Egypt against the factors which might motivate them to stay in Canada. The visa officer did not
specify how he came to such a conclusion. The officer simply found that he was
not satisfied that the Applicants would leave Canada after considering several
factors, including travel history, length of proposed stay, personal assets and
financial status. The visa officer did not explain how he came to this
conclusion.
[12]
Third,
the Applicants argue that the principal Applicant should have been given an opportunity
to respond or to be interviewed with regard to the officer’s concerns and add
that this failure constitutes a breach of procedural fairness. An interview
would have been appropriate in the present matter as it could have led to a
different finding concerning the aspects considered by the visa officer.
Furthermore, on this issue, they invoke the OP-11 Manual, which states
that: “An applicant should never be requested to attend an
interview if it is evident through a review of the paper application that the
applicant is ineligible and additional information would not alter a refusal
decision.” The Applicants further argue that as the refusal decision could have
been altered, an interview was warranted.
IV. Respondent’s
submissions
[13]
The
Respondent argues that the Applicants have failed to demonstrate a reviewable
error in the visa officer’s decision and that the decision in question should
therefore be upheld.
[14]
First,
the Respondent reasserts that it was incumbent on the Applicants, as foreign
nationals wishing to apply for a TRV, to satisfy the visa officer that they
comply with the IRPA and IRPR requirement and to establish, on a balance of
probabilities, that they will leave at the end of their temporary residency.
[15]
The
Respondent also submits that the visa officer, who was not satisfied that the
Applicants would leave Canada by the end of the authorized period, in fact
elaborated on the various concerns raised with respect to the case at bar in
his Global Case Management System (GCMS) notes. The visa officer did review the
application thoroughly and did not ignore the relevant evidence. The officer
came to this decision after concluding that the principal Applicant had no
travel history, had not proven that she is well established in Egypt and had not provided sufficient evidence of strong personal assets. Furthermore, it
is presumed that the visa officer took into consideration all of the evidence
and there was no obligation for him to refer to every piece of evidence that is
contrary to his finding.
[16]
Second,
the Respondent refutes the Applicants’ argument that the reasons given in the
decision are insufficient, as reasons are adequate and sufficient if they are
clear, precise, and intelligible and state why the decision was reached, which
is the case in the present matter. According to the Respondent, the reasons
meet the standards set in case law and the visa officer’s decisions combined
with the notes constitute sufficient reasons as they explain why the
applications were refused.
[17]
Third,
the Respondent ends by stating that the visa officer had no obligation to
interview the Applicants, because an officer does not have to inform an
applicant of his or her concerns if these concerns are related to the
requirements set out in legislation.
V. Issue
[18]
The
present matter raises the following question:
A. Did the visa
officer err in denying the Applicants’ TRVs?
This
question encompasses three sub-questions:
i. Did
the visa officer provide adequate reasons?
ii. Did
the visa officer err in failing to provide the Applicants with an opportunity
to
respond
or to be interviewed with respect to the officer’s concerns?
iii. Did
the visa officer misapprehend the evidence?
VI. Standard
of review
[19]
This
Court will review the first sub-question under the standard of reasonableness,
as it relates to the sufficiency of the reasons provided (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 22,
340 DLR (4th) 17 [Newfoundland Nurses] but also Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir]).
[20]
The
second sub-question, as a matter of procedural fairness, shall be reviewed
under the standard of correctness (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339).
[21]
As
stated by this Court in Li
v Canada (Minister of Citizenship and Immigration), 2008 FC 1284 at paras 14-16, [2008]
FCJ No 1625, the third question is reviewable
according to the standard of reasonableness, as it relates to the
question of whether the visa officers erred in their factual assessment of the
application. A
visa officer must render reasonable decisions that fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (see Dunsmuir, above at paras 47-48, 51, 53; Natt v Canada (Minister of Citizenship and
Immigration),
2009 FC 238 at para 12, 80 Imm LR (3d) 80 at para 12).
VII. Analysis
A. Did the visa officer err in
denying the Applicants’ TRVs?
i. Did the visa officer provide adequate
reasons?
[22]
The
reasons given by the visa officer in the decision were sufficient. The
Applicants claim that the visa officer failed to provide sufficient reasons
along with its decision refusing them their TRVs. However, the Applicants merely
repeat what the officer stated in his decision, without mentioning the details
provided by the visa officer in its GCMS notes, which are part of the reasons
to be considered, as stated recently by this Court in Khowaja
v Canada (Minister of Citizenship and Immigration), 2013 FC
823 at para 3, [2013] FCJ No 904:
[...]
It is well established that GCMS Notes form part of the reasons of a visa
officer (Ghirmatsion v Canada (Minister of Citizenship
and Immigration) 2011 FC 519, [2011] F.C.J. No. 650
(QL) [Ghirmatsion] at para 8; Taleb
v Canada (Minister of Citizenship and Immigration), 2012 FC 384, [2012] F.C.J. No. 650
(QL) [Taleb] at para 25; Rezaeiazar
v Canada (Citizenship and Immigration), 2013 FC 761, [2013] F.C.J. No. 804
(QL) [Rezaeiazar] at paras 58-59; Anabtawi v Canada (Citizenship and Immigration), 2012 FC 856, [2012] F.C.J. No. 923
(QL) [Anabtawi] at para 10). [Emphasis added.]
[23]
Therefore,
the analysis of the reasons provided by the visa officer should not be limited
to the decision itself but must also include the GCMS notes taken with regard
to the applications. The notes are actually more specific than the decision as
to why the visa officer was not satisfied that the Applicants would leave by
the end of their temporary residency. Amongst other things which impacted the
current applications, the visa officer considered the previous applications and
noted that the documented income and financial status of the principal
Applicant had not materially changed since the previous applications, that the
bank accounts showed a rapidly decreasing balance, that the Applicants had no
previous travel history and that they had failed to demonstrate that they are
well established in Egypt or that they have sufficient ties to ensure their return
to Egypt. These elements all support the visa officer’s decision.
[24]
Contrary
to what is being alleged, the adequacy of reasons is no longer an issue of
procedural fairness (Newfoundland
Nurses,
above at para 22).
The Supreme Court of Canada, in Dunsmuir, above at para 47, explained
that the purpose of reasons is
to demonstrate “justification, transparency and intelligibility.” As for the adequacy
of the reasons provided, the Supreme Court of Canada also stated that “if the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes, the Dunsmuir criteria are met.” (Newfoundland Nurses, above at para 16). The reasons provided in the case
at bar are brief, to say the least, but they nonetheless expose the various
elements which were detrimental to the Applicants’ claims. What is more, case law
has established that the reasons need not be perfect (Canada Post Corp. v Public
Service Alliance of Canada,
2010 FCA 56 at para 163, [2011] 2 FCR 221).
[25]
Thus
this Court believes that the reasons given by the visa officer make it possible
to understand why the applications failed and to determine that the conclusion
falls within the range of reasonable outcomes. The visa officer
therefore did not err in this regard as alleged by the Applicants.
ii. Did the visa officer
err in failing to provide the Applicants with an opportunity to
respond or to be
interviewed with respect to the officer’s concerns?
[26]
This
Court is of the opinion that the visa officer had no obligation to provide the
Applicants with an opportunity to respond regarding the officer’s concerns.
[27]
The
Applicants claim that they should have been granted the possibility to respond
to the officers’ concerns, citing the Federal Court of Canada Trial Division
decision Ali v Canada (Minister of
Citizenship and Immigration)
(1998), 151 FTR 1 at para 20, [1998] FCJ No 468. However, the cited paragraph states the
following:
On the other hand, the prime example of when a visa
officer should inform the applicant of his concerns is when the visa officer
has obtained extrinsic evidence. In that situation, the applicant should
have the opportunity to disabuse the officer of any concerns that may arise
from that evidence. [Emphasis added.]
[28]
Moreover,
as recently stated by Justice Zinn in Singh
v Canada (Minister of Citizenship and Immigration), 2009
FC 620 at para 7, [2009]
FCJ No 797, with regard to the obligation of a visa officer to afford an
applicant with the opportunity to address the officer’s concerns:
[...]
Justice Russell in Ling v. Canada (Minister of Citizenship
and Immigration), 2003 FC 1198,
reviewed the law as to when a visa officer ought to provide such an
opportunity. Relying on Ali v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 468,
he noted firstly that there was no statutory right to an interview, or any
dialogue of the sort suggested here. Secondly, it was noted that generally an
opportunity to respond is available only when the officer has information of
which the applicant is not aware. [...]
[29]
However,
in the present matter nothing suggests that the visa officer obtained extrinsic
evidence or was in possession of information of which the Applicants were not
aware.
[30]
Additionally,
the Applicants claim that they should have been afforded an opportunity to
respond to the visa officer’s concerns on the basis of OP-11 Manual,
which states that: “An applicant should never be requested to attend an
interview if it is evident through a review of the paper application that the
applicant is ineligible and additional information would not alter a refusal
decision.” It is apparent from this excerpt that the Manual does not grant a
right to an interview but simply precludes that of people whom were found to be
ineligible.
[31]
Furthermore, as submitted by the Respondent, the officer
was under no obligation to inform the Applicants of his concerns, as they related
to the requirements of the legislation. It was up to the Applicants to provide
the officer with satisfying evidence (see Obeta
v Canada (Minister of Citizenship and Immigration), 2012
FC 1542 at para 25, [2012]
FCJ No 1624; Singh v Canada
(Minister of Citizenship and Immigration),
2012 FC 855 at para 32, [2012]
FCJ No 962 and Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283 at paras
23-24, [2006] FCJ No 1597).
[32]
Consequently,
this Court finds that the visa officer did not have the obligation to provide
the Applicants with an opportunity to respond to his concerns and, therefore,
did not breach procedural fairness.
iii. Did the visa officer
misapprehend the evidence?
[33]
The
Applicants submit that the visa officer failed to correctly consider the
evidence with which it had been presented. They argue having adduced the
evidence necessary to satisfy the relevant conditions of the OP-11 Manual,
including a letter from the principal Applicant’s employer granting her leave, proof
regarding the financial situation, and bank statements, as per Ogunfowora v Canada (Minister of Citizenship and
Immigration), 2007 FC 471 at para 44,
[2007] FCJ No 637.
[34]
However,
it was incumbent on the Applicants to establish, on a balance of probabilities,
that they will leave Canada at the end of the authorized period (Dhillon v Canada (Minister of Citizenship and Immigration), 2009 FC 614 at para 41, 347 FTR 24 [Dhillon]).
Moreover, a visa officer is presumed to have weighed and considered all the
evidence presented to him or her unless the contrary is proven (Florea v
Canada (Minister of Employment and Immigration), [1993] FCJ No 598
(FCA) at para 1). Furthermore, the visa officer was under no obligation to
refer to every piece of evidence that is contrary to his finding and his
decision should not be read hypercritically (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR
35 at para 16, 1998 CarswellNat 1981). It
is not up to this Court to re-examine or reweigh the evidence submitted to the
visa officer.
[35]
The
visa officer refused to grant the Applicants’ TRVs after considering the
evidence submitted. Given the reasons provided by the visa officer and
the GCMS notes – which were previously examined herein – and keeping
in mind that the officer’s role under the IRPA and IRPR “[…] is to prevent a
person from arriving in Canada if that person has not satisfied the officer
that he or she will leave Canada at the end of the authorized period” (Dhillon,
above, at para 37), this Court finds that the visa officer did not misapprehend
the evidence and that the decision falls within the range of
reasonable outcomes.
[36]
The
parties were invited to submit a question for certification but none were
proposed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed. No question is certified.
“Simon
Noël”
_____________________________
Judge
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