Date:
20130429
Docket:
IMM-5428-12
Citation:
2013 FC 442
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
April 29, 2013
PRESENT: The
Honourable Mr. Justice Roy
BETWEEN:
MARC DAVID
JEAN
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of
a decision by a visa officer (the officer) at the Canadian Embassy in
Port-au-Prince (Haiti). The officer refused to grant Marc David Jean (the
applicant) a study permit with temporary resident status pursuant to sections
179, 216 and 220 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations).
[2]
The
applicant is a citizen of Haiti who requested a study permit at the Canadian
Embassy in order to study computer science. The permit was refused. For the
following reasons, I find that the judicial review should be allowed in this
case.
Facts
[3]
On
April 22, 2012, the applicant sought to obtain a study permit from the Canadian
Embassy in Haiti in order to continue his studies in Canada. In support of his
application, the applicant submitted evidence of his admission to the bachelor
of computer science and software engineering program from the University of
Quebec at Montréal, obtained on January 19, 2012. In addition, a letter from
the university's financial services confirmed that the applicant had paid
$16,000 for tuition. That letter is dated November 9, 2011.
[4]
Regarding
the financial resources that he would have in Canada, the applicant submitted
an accommodation and financial support certificate signed by his aunt, who is a
Canadian citizen residing in Longueuil and who undertakes to house the
applicant and provide for his needs for the duration of his university studies.
His aunt owns a triplex and a multi-unit building, both in Longueuil. She also
manages them. She states in her affidavit that she undertakes [Translation] "to lodge
and provide room and board to Marc David Jean (my godson) domiciled and
residing at 43 Ruelle Nord-Alexis, Port-Au-Prince, Haiti, for the duration of
his university studies at the University of Quebec at Montréal (UQAM)".
[5]
The
applicant has received a Certificat d’acceptation du Québec, dated February 23,
2012.
Analysis
[6]
Given
my conclusion, it will not be necessary to examine each of the parties'
arguments. The immigration officer's decision is based on very little. Indeed,
that is its main problem. It is stated in a document dated May 10, 2012, that
the application for a study permit is refused, using checkmarked boxes that
ultimately indicate two reasons:
[Translation]
□ Under sections 219 and 220 of the IMPR, I am
not satisfied that you:
. . .
□ have sufficient and available
financial resources, without working in Canada, to pay your tuition fees for
the program you wish to take.
. . .
□ I am not satisfied that you will leave
Canada at the end of the period authorized for your stay for the following reasons:
. . .
□ Your personal
property and financial situation.
[7]
These
notes correspond to the relevant excerpts of sections 219 and 220 of the
Regulations and section 20 of the Act. They are more part of the conclusion
than the reasons. There is no explanation of the reasons that could have
justified the officer's conclusions. The Regulations provide for the refusal of
the permit if financial resources are insufficient: it is not known why the
officer reached (or made) this conclusion because only the conclusion is shown.
The same is true for the conclusion that the applicant will not leave the
country at the end of his stay: there is only a checkmark in the financial
situation box. There is not much more in the notes that are part of the
Computer Assisted Immigration Processing System (CAIPS). They read as follows:
[Translation]
After reading the notes and documents, I came to the
conclusion that this person does not meet the requirements of the Immigration
and Refugee Protection Act because he does not seem to be well established
in his country, and he has not demonstrated in a satisfactory manner that he
would return to his country once he is admitted to Canada as a student. Therefore,
I refuse the application based on bona fides and unproven financial
means.
[8]
The
Supreme Court of Canada case law does not require perfection in stating reasons
for a decision. However, it seems to me that the Court still asks that a
certain standard be satisfied.
[9]
In
Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, the Court recognized two
standards with respect to judicial review of administrative tribunals: the
so-called reasonable decision and the correct decision. Regarding a decision that
must be reasonable, which will be the standard of review in this case, the
Court must still be able to be satisfied with it. Paragraph 47 of Dunsmuir
reads as follows:
. . . Tribunals have a margin of appreciation within
the range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[10] Of
course, deference to the administrative tribunal is appropriate. Similarly, the
reasons for a decision should not be examined microscopically. The Court
specified the considerations to be taken into account for it to be satisfied with
the adequacy of the reasons. I reproduce paragraph 14 of Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), [2011]
3 SCR 708, without the references therein. This paragraph reads as follows:
[14] Read as a whole, I do not see Dunsmuir as
standing for the proposition that the “adequacy” of reasons is a stand-alone
basis for quashing a decision, or as advocating that a reviewing court
undertake two discrete analyses — one for the reasons and a separate one for
the result. It is a more organic exercise — the reasons must be read together
with the outcome and serve the purpose of showing whether the result falls
within a range of possible outcomes. This, it seems to me, is what the Court
was saying in Dunsmuir when it told reviewing courts to look at “the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes” (para. 47).
[11] With
respect, in this case, the Court finds itself unable to be satisfied that the
decision made falls within a range of possible outcomes. What we have are
conclusions that are not supported by evidence, or lack thereof, that could
justify the refusal decision. I am not claiming that the decision should have
been different. The Court instead finds itself in a situation where it is not possible
to know why that decision was made, which makes it impossible to review its
legality. It is the standard that the Court is bound by: "In other words,
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
and Labrador Nurses’ Union, supra, at paragraph 16).
[12] I am
obviously aware that, because of the subject matter, the decision is at
the low end of the spectrum in terms of the need to articulate it. However,
there must be a minimum to comply with and simply restating the requirements of
the Act does not constitute reasons that could make a judicial review possible.
The decision in this case may well be reasonable, but the Court cannot assess
it as it is bound to do in law, in the absence of reasons.
[13] By
way of further illustration, the officer's notes, reproduced at paragraph 7 of
these reasons, tell us only that the application was refused based on "bona
fides and unproven financial means". Part of this assertion is just a repetition
of what is stated in the form. The other part talks about "bona fides".
It is quite possible that the bona fides in question deals in fact with
the applicant's credibility. The reference to bona fides may also be
based on the need for the applicant to prove that he will leave at the end of
his stay in Canada and that he is essentially a bona fide visitor. The case law
of our Court tends to recognize that not allowing an applicant to provide further
explanations when the credibility of the evidence is being questioned may
constitute a breach of natural justice (Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501; Obeta v Canada
(Minister of Citizenship and Immigration), 2012 FC 1542). We are not
talking here about the sufficiency of the information to be submitted, but about
the credibility to be attributed to it. In addition, paragraph 5.15 of OP 12,
which is a chapter that deals with how applications for a study permit should
be treated, may refer to two concepts. What option did the officer use in this
case? Paragraph 5.15 of the Operational Procedural Manual, Citizenship
and Immigration Canada, filed in evidence by the applicant as Exhibit A-5 of
the affidavit in support of the application reads as follows:
Bona fides of all students must be assessed
on an individual basis; refusals of non-bona fide students may only withstand
legal challenge when the refusal is based on the information related to the
specific case before the officer. Therefore, while cultural context or
historical migration patterns of a client group may be a contributing factor to
the decision-making process, they alone are not valid, legally tenable grounds
for refusal on bona fides. If officers wish to take into account outside
information, particularly where that information leads to concerns/doubts about
the applicant's bona fides, the applicant must be made aware of the
information taken into account and given an opportunity to address those
concerns. This interaction should be fully documented in the CAIPS/FOSS notes. The
onus, as always, remains on the applicant to establish that they are a bona
fide temporary resident who will leave Canada following the completion of their
studies pursuant to section R216(1)(b).
[14] It is
impossible for a review court to determine what the officer was thinking when
he stated that the bona fides was deficient. Because of the lack of
sufficient reasons, it is impossible to establish that the decision has "the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes” (Dunsmuir, supra).
[15] Accordingly,
this case will be referred back to another decision-maker for redetermination.
JUDGMENT
The
application for judicial review is allowed. The decision made on May 10, 2012,
by a visa officer at the Canadian embassy in Port-au-Prince, Haiti, is set
aside and the matter is referred back to a new visa officer for redetermination.
"Yvan Roy"
Certified
true translation
Margarita
Gorbounova, Translator
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