Date:
20130620
Docket:
IMM-8534-12
Citation:
2013 FC 691
Toronto, Ontario,
June 20, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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VICTORIA NENE AGIDI
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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]
At
the conclusion of the hearing I informed the parties that this application
would be allowed and further stated that it ought to have been resolved by the Minister
without a hearing. These are my reasons for so finding.
[2]
Ms.
Agidi is a citizen of Nigeria. She applied for a temporary resident visa [TRV]
on June 4, 2012, in order to visit a friend in Scarborough, Ontario, for the
first three weeks of August 2012. Her application was denied by a visa officer
on August 10, 2012.
[3]
The
officer’s decision to deny Ms. Agidi’s application was communicated by a
standard form refusal letter. The following reasons were said to apply in the
applicant’s case:
I am not satisfied that you have a legitimate
purpose in Canada and therefore I do not consider you to be a genuine temporary
resident who would leave Canada.
…
You have not satisfied me that you meet the
requirements of Regulation 179: that you would leave Canada at the end of the
temporary period if you were authorized to stay. In reaching this decision, I
considered your ties to the country of residence/citizenship balanced against
factors which might motivate you to stay in Canada.
…
Other reasons: No travel history.
[emphasis added]
[4]
The
Certified Tribunal Record also discloses four entries in the Global Case
Management System; however, these are purely of an administrative nature and
none of them provides any reasons or notes by any assessing officer. However,
one entry may explain why Ms. Agidi’s request was given such short-shrift by
the officer. It reads:
THIS APPLICANT HAS BEEN GROUPED TO EXPEDITE BACKLOG
OF FILES AT MISSION >70-DAYS PROCESSING. AS A MEMBER OF THIS GROUP A
MANUAL REFUSAL LETTER HAS BEEN ISSUED. THE REASONS FOR REFUSAL ALL INCLUDE
PURPOSE AND MOST NO TRAVEL HISTORY BUT MAY INCLUDE EVENT HAS PASSED NOT
TRUTHFUL INSUFFICIENT FUNDS OR ANY OTHER BONA FIDE REFUSAL REASON. FEW IF ANY
OF THESE APPLICANTS WILL HAVE FAMILY MEMBER IN CANADA – POSSIBLE IF A DISTANT
COUSIN OR A “BROTHER” OR “SISTER” WHO IS NOT A BIOLOGICAL RELATIVE. ALSO THE
RESON FOR TRAVEL MAY HAVE PASSED AND OR THE BUSINESS TRAVELLER IS NOT BONA
FIDE. [emphasis added]
[5]
The
officer who decided the applicant’s request for a TRV has sworn an affidavit in
this judicial proceeding. Other than summarizing what can already be gleaned
from the CTR, the officer adds:
7.
Apart from mentioning that the host was a “friend” no other information was
provided to clarify the relationship between the Applicant and the host.
8.
I was not satisfied that the purpose of travel to Canada was compelling
and that the Applicant would leave Canada when required to do so. On this
basis, I refused her application for a temporary resident visa. [emphasis
added]
[6]
These
paragraphs are inappropriate and the affidavit is inadmissible. With this
affidavit the officer is impermissibly attempting to “bootstrap” his decision:
See, e.g., Stemijon Investments Ltd v Canada (Attorney General), 2011
FCA 299 at para 41. Frankly, it has become far too common in applications
where the “reasons” are scant to offer such bootstrap affidavits. Does it
require the Court’s intervention by an award of costs before counsel will get
the message?
[7]
Even
if the affidavit were accepted, it is not clear to me why the officer states
that he was not satisfied that the applicant’s purpose of travel to Canada was “compelling” and why he considers that to be a basis to refuse an application
for a TRV. An applicant for a TRV need not establish that they have a “compelling”
reason to travel to Canada. On the contrary, an officer “shall” issue a TRV if
the conditions in section 179 are established. The only condition in section
179 relevant in this application for judicial review is that an applicant for a
TRV establishes that he or she “will leave Canada by the end of the period
authorized for their stay:” paragraph 179(b).
[8]
The
applicant in the written submissions argues that the officer breached the duty
of fairness by failing to provide adequate reasons for his decision, and also
that the decision is unreasonable. The respondent is quick to point out,
correctly, that “adequacy of reasons” is no longer a stand-alone ground of
judicial review, in light of the Supreme Court’s decision in Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 [Newfoundland and Labrador Nurses' Union] at para 14. I
agree; however, the decision rendered must still be reasonable in terms of “the existence of
justification, transparency and intelligibility within the decision-making
process [and] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law:” Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47.
[9]
The
decision under review fails on all counts. It is not transparent or
intelligible and offers no justification for the result based on the record
before the decision-maker.
[10]
Ms.
Agidi was seeking a TRV in order to visit her friend in Canada. Her application was amply supported by the following:
a. An
affidavit attesting to the invitation duly sworn by her friend, Rita Ezeakonobi
with certified copies of her Canadian passport and Drivers’ Licence attached
thereto;
b. The applicant’s
marriage certificate;
c. The birth
certificates of the applicant’s two children;
d. Evidence
of the applicant’s paid return ticket to Canada, her travel itinerary
and visitor travel insurance policy;
e. The
applicant’s offer letter for employment at DSV Pipetronix Limited;
f. A
letter confirming the applicant’s employment at DSV Pipetronix Limited;
g. A
letter of introduction by the applicant’s employers, DSV Pipetronix Limited;
h. The applicant’s
pay stubs;
i.
The
applicant’s Leave Form from her employer stating a leave date of July 2012 to August
30, 2012;
j.
The
applicant’s personal bank statements from First Bank of Nigeria showing funds equivalent to approximately $13,000 CAD;
k. A ING
Direct Bank Statement from the applicant’s host, Rita Ezeakonobi showing funds
of over $30,000 CAD; and
l.
A
deed of assignment of a plot of land in Nigeria belonging to the applicant.
[11]
In
the absence of any real reasons in the CTR as to why the officer reached his
conclusion that the applicant had not satisfied him that the applicant would leave
Canada at the end of her intended three week stay, this decision is
unreasonable and must be set aside. Although this Court should first look to
supplement before subverting the officer’s reasons and may look to the record
to do so (Newfoundland and Labrador Nurses’ Union, above, at para 12), a
review of the record almost exclusively reveals factors – those canvassed
immediately above – that strongly support the opposite conclusion to
that reached by the officer; namely she has been invited by a Canadian friend
to visit and holiday with her for three weeks (and the friend provides an
affidavit to the effect), and she leaves behind in Nigeria a job, a husband,
two minor children, and property. How on those facts can it reasonably be said
that she has failed to establish on the balance of probabilities that she will
leave Canada at the conclusion of her visit?
[12]
For
those reasons, I grant this application and quash the officer’s decision. The
decision rendered is so outrageous that it is perverse. As such, it is
appropriate that this Court also order that the applicant’s file with the
Minister reflect that it has been quashed and is of no force or effect and further
that it is not to be at all considered in any future application by Ms. Agidi.
[13]
No
question was proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application is allowed and the decision of an officer dated August 10, 2012, is
quashed;
2.
The
period for which the temporary resident visa was sought has expired; however, should
Ms. Agidi wish a temporary resident visa to visit Canada, she may refile her application
with the existing or new supporting information and it is to be considered by
another officer on an expedited basis;
3.
The
decision dated August 10, 2012, that has been quashed shall not be considered
by any officer when considering any future request for a temporary resident visa
by Ms. Agidi; and
4.
No
question is certified.
"Russel W.
Zinn"
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