Date:
20130620
Docket:
IMM-9106-12
Citation:
2013 FC 690
Toronto, Ontario,
June 20, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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AJAY KUMAR BABU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Mr.
Babu is a citizen of Pakistan. He has unsuccessfully applied for a Canadian
study permit three times in the past five years. His most recent application,
dated May 7, 2012, was refused because the officer was not satisfied that Mr.
Babu “would leave Canada at the end of [his] stay.”
[2]
The
standard form refusal sent to Mr. Babu outlined the officer’s reasons for
refusing the application, as follows:
[x] You have not satisfied me that you
would leave Canada at the end of your stay. In reaching this decision, I
considered several factors, including:
…
[x] limited employment prospects in your country of residence
[x] your current employment situation
[x] your personal assets and financial status.
[3]
The
officer’s Global Case Management System notes shed further light on his or her
reasons:
Search: done. 22 yo single male to attend 2 yr
computer systems technician program at Fanshawe College. PA [Mr. Babu] was
refused SPs [study permits] in 2008 and 2009 to attend similar program at Humber College. PA is being supported his maternal CC [Canadian citizen] uncle. Sponsor
has sufficient proof of funds and proof of relationship submitted. PA writes
in a letter dated 09April2012 that he graduated from Karachi University has several computer diplomas, however education documents on file show PA completed
higher secondary in 2008 and various certificates prior to that. There is one
certificate from Zealian Coaching & Computer Centre but it does not list
the year of course completion. Pas representative writes that an education in Canada would be superior to what could be obtained in Pakistan. While that may be true, it does not
explain why PA has not sought any formal education in his desired field since
leaving high school in 2008. PA states in his application he worked as a key
account exec from 2009/01-2010/02 and an operation exec since 2010/03, but has
not submitted any job letters or other proof of employment. His personal bank
statements show low savings and do not show salary deposits. Based on the
information on file, it appears PA has not pursued any formal education since
completing high school in 2008, he has not provided any proof of employment,
and has low personal savings. While Pas sponsor in Canada may have sufficient
funds to support PA, I am not satisfied PA has demonstrated sufficient level of
establishment or ties to Pakistan that would compel him to depart Canada within the period authorized. Application refused.
[4]
It
is paragraph 216(1)(b) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations] that makes it a requirement that a study
permit applicant establish that he or she “will leave Canada by the end of the period authorized for their stay,” and under which the officer denied Mr.
Babu’s application for a study permit.
Issues
[5]
The
applicant raises the following issues:
1.
Did
the visa officer commit a reviewable error by failing to consider the totality
of the evidence?
2.
Did
the visa officer commit a reviewable error by unreasonably assessing the
applicant’s ties to Pakistan?
[6]
The
parties are agreed that reasonableness is the standard of review.
Analysis
Ignoring
Evidence
[7]
The
applicant submits that the officer based his or her decision on an erroneous
finding of fact – that Mr. Babu did not have strong ties to Pakistan – which he or she made without regard to the material submitted in his application
for a study permit. In particular, Mr. Babu says he represented in his
application for a study permit that he currently resided with all of the
members of his immediate family in the same home in Pakistan; that his father
owns real estate in Pakistan and expects him, his only son, to return to
Pakistan to care for him and his assets in his old age; that his financial sponsor
in Canada, his maternal uncle, indicated that he is willing to fund his studies
in the expectation that he will return to Pakistan to care for his ailing
mother; and that he was primarily responsible for supporting his parents as
their only son and noted that his mother underwent a heart bypass surgery in
March 2012.
[8]
The
officer did not mention any of this in his or her reasons or in the notes, and
it therefore asserted “that the officer’s finding was made without regard to
the evidence.”
[9]
It
would be preferable for an officer to outline the most important aspects of the
application which both favour and do not favour the granting of the permit.
Nonetheless, I do not share the applicant’s characterization of the officer’s
decision.
[10]
While
the officer did not specifically mention these ties to Pakistan in his or her notes he or she did not conclude that the applicant had no ties to Pakistan. Rather, he or she concluded that “I am not satisfied PA has demonstrated sufficient
level of establishment or ties to Pakistan that would compel him to depart Canada within the period authorized” [emphasis added]. I am therefore not convinced that
the officer “ignored the evidence,” as the applicant argues. However, it
remains an open question whether on the basis of all of the evidence, the
officer’s finding that the applicant would not leave Canada at the end of the
authorized period was reasonably made, which is the second issue raised in this
application.
Reasonableness
of the Finding
[11]
The
applicant submits that various findings made by the officer which support his
or her ultimate determination under paragraph 216(1)(b) of the Regulations
are unreasonable.
[12]
First,
he says that the officer made the same error as was described in Obot v
Canada (Minister of Citizenship and Immigration), 2012 FC 208 at para 20,
wherein, it is argued, this Court “held that it was unreasonable for a visa
officer to expect a 25-year old student to have a spouse, children, property,”
or significant financial savings “whether in his country of nationality or
elsewhere.”
[13]
In
my view, Obot is distinguishable from this case. Mr. Obot was a student
right up until the time he applied for a study permit, so Justice Mosley
reasoned that “it is thus normal for him to have ‘no spouse, children or
property’:” See para 20. Mr. Babu on the other hand, although he is younger,
had not studied in any program since 2008, which is roughly four years before
he submitted his third study permit application, and stated on his application
that he had been working continuously from January 2009 to the time of this
third application.
[14]
The
officer here considered Mr. Babu’s financial establishment in Pakistan in the
context of his circumstances and in my view there was nothing unreasonable
about the officer reasoning that Mr. Babu’s apparent lack of savings or
property in Pakistan,after allegedly working for roughly three and a half years,weighed
against him because it was indicative of a low level of establishment or
intention to establish in Pakistan.
[15]
The
applicant secondly says that “the officer’s implied finding that [he] would
have sought post-secondary education in IT in Pakistan if he was a bona fide
student is unreasonable and illogical.” This is so because the applicant’s
plans to obtain post-secondary education in Canada are long-standing (as
evidenced by the two prior study permit applications), and because “it is
impossible for him as a Hindu without significant wealth or political
connections to obtain an academic qualification that would result in a
meaningful improvement in the employment opportunities open to him [and]
[c]onsequently, he was focused on Canadian opportunities for post-secondary
education as opposed to Pakistani ones.”
[16]
In
my view, neither of these arguments is persuasive or shows that the officer’s
decision is unreasonable. While the applicant argues that “given the fact that
he has been consistently pursuing his dream of studying in Canada, it is not surprising that he has not pursued post-secondary education in Pakistan,” the officer was entitled to prefer another explanation – that Mr. Babu is not genuinely
focused on an education in IT. The applicant’s second argument – that Mr. Babu
could not obtain a worthwhile academic credential in Pakistan because he is
Hindu and does not have “significant wealth or political connections” is simply
an assertion not borne out by the evidence in the record. Mr. Babu did not
indicate, for example, nor was there any evidence put to the officer of failed
attempts at gaining admission to prestigious colleges or universities in Pakistan, much less such attempts that could be reasonably attributed to Mr. Babu’s status
as a Hindu and not some other factor.
[17]
There
was evidence put to the officer, however, that Hindus are generally
discriminated against in Pakistan, but one must wonder whether this does not
itself strongly work against the applicant’s contention that he was
likely to return there and supports the officer’s determination as
reflected in the refusal letter that Mr. Babu’s employment prospects were not
strong. In any event, if Mr. Babu was truly motivated but prevented from
studying at a reputable university in Pakistan, it is not unreasonable to
expect to see some evidence of failed attempts or at least evidence directly on
point about admissions showing that it would be pointless for a Hindu to apply
to such an educational institution.
[18]
Further
still, Mr. Babu has $45,000 available to him for a two-year program in Canada; one could reasonably expect absent evidence to the contrary that this relatively high amount
of money might translate into a good educational opportunity in Pakistan. While this was not a reason specifically noted by the officer, the Supreme Court
of Canada in Newfoundland and Labrador Nurses' Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, instructed reviewing courts to
first seek to supplement an administrative decision before subverting it, and
for that purpose to look at not only the reasons offered in support of a
conclusion, but also “what could be offered in support of a decision”
[emphasis added]: paras 11 and 12.
[19]
Last,
the applicant says that for two reasons the officer unreasonably discounted his
family ties to Pakistan in arriving at the conclusion that he had not
“demonstrated sufficient level of establishment or ties to Pakistan that would compel him to depart Canada within the period authorized.” First, as in Zhang
v Canada (Minister of Citizenship and Immigration), 2003 FC 1493, Mr. Babu
presented evidence that he and his family intended that he return to Pakistan
upon completion of his studies. Second, as in Hara v Canada (Minister of Citizenship and Immigration), 2009 FC 263, all of Mr. Babu’s immediate
family reside in Pakistan and he is expected to assume primary responsibility for
his father’s affairs as the only son.
[20]
It
is not disputed that there were factors that weighed in favour of the view that
he would return to Pakistan and thus ought to be granted the permit. However,
one cannot point to isolated facts or factors which favoured the applicant to
argue that the officer’s assessment was unreasonable; rather, the officer’s
determination under paragraph 216(1)(b) must be examined in light of the whole
record. In this case, there were factors weighing on both sides of the equation.
On the negative side, Mr. Babu had not shown he was pursuing higher education
in his chosen field in Pakistan and did not provide particularly convincing
reasons why not; Mr. Babu had been working for more than three years but had
low savings and no property; Mr. Babu was not married and did not have
children, and was thus probably relatively portable; and the situation in
Pakistan was admittedly relatively bleak for Hindus like Mr. Babu. On the
positive side, Mr. Babu’s family expected him to return to Pakistan; Mr. Babu’s
immediate family was in Pakistan; and Mr. Babu stated in a letter to his
immigration representative and current counsel that he intended to return to
Pakistan.
[21]
The
task of the visa officer under paragraph 216(1)(b) of the Regulations is
such that the Court ought to provide a wide “margin of appreciation” for the
conclusions reached under that provision. Moreover, the authority and role of
this Court on judicial review under the reasonableness standard of review is
not to step into an officer’s shoes to freshly weigh the evidence, but to ask
whether the decision falls within the range of possible, acceptable outcomes
based on the evidence and the law. The officer was not obliged to prefer Mr.
Babu’s claim and his family’s expectation that he would return to Pakistan and not overstay his study permit, and was entitled to prefer the factors tending
to show little incentive to return.
[22]
For
these reasons, this application is dismissed. No question was proposed for
certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed and no
question is certified.
"Russel W.
Zinn"
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