Docket: IMM-5706-13
Citation:
2014 FC 606
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 23, 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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RACHEL RUNNATH
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
An application for judicial review was brought
with respect to a decision made by an immigration officer at the Canadian
Embassy in Bangkok on August 5, 2013.
[2]
This is an application for judicial review under
section 72 of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act].
[3]
After hearing the parties’ arguments and
reviewing the record, the Court has concluded that the application for judicial
review should be allowed for the following reasons.
[4]
The applicant is a citizen of Cambodia. She applied for a visa to study in Canada. She was admitted to CDI College in Montréal in a financial management program requiring 12 to 14 months of studies.
Her family and her future spouse in Cambodia supported her plan. Her uncle in Montréal
had signed a declaration of financial support and, with her aunt, undertook to
provide lodging and food and to cover expenses during her stay in Canada. She had obtained a Quebec certificate of acceptance as well as insurance for
medical expenses.
[5]
The officer rejected the application for a
student visa. The decision letter states: “You have not
satisfied me that you would leave Canada at the end of your stay.” The
factors cited in support are indicated by checked boxes on a form that
accompanied the letter and that is part of the reasons for decision: “length of proposed stay in Canada”, “purpose of visit”, and “your
personal assets and financial status”.
[6]
The issue is whether the visa officer’s
conclusion that the applicant would not return to Cambodia was reasonable given
the evidence in the record. Indeed, a similar decision was the subject of
judicial review on the basis of the reasonableness standard (Hussain v Canada (Citizenship and Immigration), 2012 FC 900).
[7]
The applicant obtained the notes from the
Computer‑Assisted Immigration Processing System [CAIPS]. In them, the
officer made the following comments: “… Ap has registered
for 12 weeks Financial Management Program at College CDI in Montreal. ... Ap
has no proof of her personal fund. Ap was recently refused trv to visit her Cdn
husb. Based on the submitted info, I am not satisfied that ap is fully well
established and that he [sic] has sufficient ties and motivaiton [sic]
to leave Cda once her vist [sic] is ended. refused.”
[8]
The role of judges on judicial review is not to
substitute their view of the facts but to see that the decision rendered was
lawful. Since the standard of review is reasonableness, reviewing judges must
be able to satisfy themselves that the decision is reasonable. Accordingly, the
decision must have the hallmarks of reasonability within the meaning of Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]:
[47] ... 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.
[9]
Here, the reasons given do not appear to me to
meet this minimum justification. It is well known that the adequacy of reasons is
not a basis for quashing a decision (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 [Newfoundland Nurses]). Reviewing judges are invited to
look to the record for the purpose of assessing the reasonableness of the outcome,
but they must not substitute their reasons for the decision‑maker’s. The
test is articulated at the end of paragraph 16 of Newfoundland Nurses:
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.
[10]
It is certainly not necessary to provide
extensive reasons. But to provide only conclusions by way of reasons did not
satisfy the minimum conditions for understanding why the decision was made. The
insufficient reasons for decision in this case prevent us from understanding what
the officer was dissatisfied with. The clarity of the decision must not be
confused with understanding why the decision was made. Here, there is no doubt
about the decision that was made. What is lacking is an understanding of the
basis for the decision.
[11]
The officer had to ensure that the applicant had
adequate financial resources to pay her expenses and support herself and that
she had sufficient ties to her country of origin. Here, one would have hoped
that the decision would consider that one of the persons who sponsored the
applicant was her uncle, an official with the Department of Citizenship and
Immigration for 24 years. Counsel for the respondent submits that [translation] “the
officer did not find that the applicant did not have sufficient funds to study
in Canada” and instead concluded that [translation]
“the applicant’s lack of personal funds resulted in a
lack of proof of attachment to Cambodia”. Indeed, reading only the [translation] “decision”, it would take a
clever person to be able to state for what purpose the notation “Ap has no proof of her personal fund” was made and what the
officer’s reasoning was. Instead there is a
terse, cryptic sentence: “Based on the submitted info, I
am not satisfied that ap is fully well established and that he [sic] has
sufficient ties and motivaiton [sic] to leave Cda once her vist [sic]
is ended. refused.” A decision without reasons smacks of arbitrariness.
When it is not possible to know why a decision was made, reviewing its legality
becomes impossible. The attributes of rationality cannot be discerned.
[12]
At the hearing, counsel for the respondent
valiantly defended her client’s position that a heavy burden cannot be imposed
in these cases. The Minister claims that considerable deference is owed to his
decisions.
[13]
The Minister is not wrong. But deference is not
an abdication of the need to consider the reasons. Moreover, the Supreme Court specifically
noted this in Dunsmuir at paragraph 48:
It does not mean that courts are subservient to
the determinations of decision makers, or that courts must show blind reverence
to their interpretations, or that they may be content to pay lip service to the
concept of reasonableness review while in fact imposing their own view.…
[14]
Just as so‑called administrative
constraints cannot be used to justify not complying with what is required as a
minimum, these visa applications cannot be transformed into exercises in
rhetoric. This is not a matter of requiring visa officers to produce a thesis
every time a visa is refused. Soon, visas that should be validly refused would be
granted rather than having to provide lengthy reasons. Blaise Pascal said
one day, [translation] “Man is neither angel nor beast, and the misfortune is that he
who would act the angel acts the beast.”
[15]
In my view, the minimum test set out in
paragraph 16 of Newfoundland Nurses was not satisfied in this case,
despite the efforts of counsel for the respondent to paint a more complete
picture from the short remarks provided by the decision‑maker. Counsel
argued that the decision clearly said what it consisted of. I agree. However,
that it is not the test; rather, the test is to understand the basis of the
decision not just what it consists of.
[16]
The Act provides that the person requesting a
visa must establish that they will leave Canada at the end of their stay (section 20
of the Act). But simply not being satisfied that the person will leave provides
no indication for the basis of the decision. In my view, stating that the
person is not well established in her country of origin where she lives and
works on the basis that she “has no proof of her personal fund” does not meet
the reasonability requirements under Dunsmuir.
[17]
It is understandable that the decision‑maker
was suspicious of the applicant. But he did not attempt to explain his
suspicions or relate them to the reasons for refusing the visa. A brief
explanation that will satisfy the minimum test of reasonability, which “is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process” (para
47, Dunsmuir), is what is required. With respect, I do not believe that
the decision‑maker can avoid this minimum obligation for so‑called
administrative reasons or volume.
[18]
It is certainly possible that it is not
appropriate to issue a visa. But considering the record that was submitted, the
refusal decision deserved better. A minimum justification is required, without
which it is the reviewing judge’s opinion, in one direction or the other, that will
prevail. That would be interfering in an area that is not the Court’s domain.
[19]
Accordingly, the application for judicial review
is allowed. The case is remitted to another decision‑maker for reassessment.
The parties did not suggest a serious question of general importance, and there
is no question to certify.
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