Docket: IMM-3919-14
Citation:
2015 FC 657
Ottawa, Ontario, May 25, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
|
BETWEEN:
|
|
ASHKAN SAFAEI
HAKIMI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
IMMIGRATION AND CITIZENSHIP
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
Ashkan Safaei Hakimi [the Applicant] has brought
an application for judicial review pursuant to s 72 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the IRPA]. The Applicant challenges a
decision of the Immigration Program Manager [the Officer] of the Canadian
Embassy in Tel Aviv, Israel made on April 8, 2014 to deny him a Canadian study
permit.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
II.
Background
[3]
The Applicant is a citizen of Israel and a resident
of Jerusalem. He is a freelance journalist and writer, and he also works as an
editor of an Israeli news website.
[4]
In January, 2014 the Applicant was accepted into
the Journalism – Print and Broadcast Programme [the Programme] at the Humber
Institute of Technology and Advanced Learning in Toronto [Humber College]. The
Programme was to begin in September, 2014 and conclude in May, 2016.
[5]
Following his acceptance into the Programme, the
Applicant submitted an application to the Canadian Embassy in Tel Aviv for a
study permit on April 1, 2014. On April 8, 2014, the application was rejected on
the basis that the Officer was not satisfied that the Applicant met the
requirements for obtaining a study permit prescribed by the IRPA and the Immigration
and Refugee Protection Regulations, SOR/2002-227 [the Regulations].
III.
The Officer’s Decision
[6]
The Officer’s decision consists of a letter that
was sent to the Applicant on April 8, 2014 and the Officer’s notes in the
Global Case Management System (GCMS).
[7]
The Officer was not satisfied that the Applicant
had sufficient and available financial resources to maintain himself during the
proposed period of study without working in Canada. The Officer’s GCMS notes indicate
that the Applicant had $32,166 in his bank account with recent deposits of
$6,300. The Officer questioned the source of the funds, as this was not
identified in the application. The Officer observed that this sum may be enough
to cover tuition fees and living expenses “for a little
while”; however he was not convinced that it would be enough “for the long-term”.
[8]
The Officer also noted that if the Applicant’s
parents continued to reside in Iran (the Applicant’s country of origin), then they
would probably not be able to support him financially due to economic sanctions
that have been imposed on that country.
[9]
In addition, the Officer was not satisfied that
the Applicant would leave Canada upon the expiration of his study permit. The Officer’s
decision was based on several factors, including the Applicant’s travel history;
the extent of his family ties in his country of residence; the purpose of his proposed
travel to Canada; his employment situation; and his personal assets and
financial status.
[10]
The Officer noted that the Applicant had lived
in Israel only since 2010, and he had offered no evidence to substantiate his
claim that he had been working as a freelance journalist since 2012. The
Officer questioned whether the Applicant was well-integrated into Israeli
society. Given the Applicant’s tenuous social and economic ties to Israel, the
Officer was not convinced that the Applicant was well-established in that
country and that he would leave Canada at the end of his stay.
IV.
Issues
[11]
The following issues are raised by this
application for judicial review:
A. Whether the Officer’s conclusion that the Applicant did not meet the
requirements of a Canadian study permit was reasonable; and
B.
Whether the Applicant was given a sufficient opportunity
to respond to the Officer’s concerns.
V.
Analysis
[12]
A visa officer’s exercise of authority in
granting visas is an administrative decision made in the exercise of
discretionary power. The applicable standard of review is therefore reasonableness
(My Hong v Canada (Minister of Citizenship and Immigration), 2011 FC 463
at paras 10-13 [Hong]).
[13]
Whether the Applicant was given a sufficient
opportunity to respond to the Officer’s concerns is a question of procedural
fairness. The Respondent relies on the Federal Court of Appeal’s decision in Maritime
Broadcasting System Limited v Canadian Media Guild, 2014 FCA 59 at paras 50
to 58 [Maritime Broadcasting] for the proposition that a specialised
tribunal’s procedural choices are entitled to deference and should be reviewed
against a standard of reasonableness.
[14]
Maritime Broadcasting was decided in the context of labour relations, and its application
to this case is therefore uncertain. This Court has held that questions of procedural
fairness arising from visa applications are to be reviewed against a standard
of correctness (Singh v Canada (Minister of Citizenship and Immigration),
2012 FC 526 at para 14 [Singh]). That said, the
procedural protections that arise in the processing of a student visa
application are “relaxed” (Tran v Canada (Minister of Citizenship and
Immigration), 2006 FC 1377 at para 2 [Tran]).
A.
Whether the Officer’s conclusion that the
Applicant did not meet the requirements of a Canadian study permit was
reasonable
[15]
The Officer’s GCMS notes read as follows:
30 years old national of Israel wants to
study at Humber College in Toronto. Single with no children. [Applicant] is
born in Iran and moved to Israel in 2010. Says to be working as a journalist
freelancer since 2012 but no proof of that has been provided. Has $32,166 in bank
with recent deposits of $6,300. This may be enough to cover tuition fees and
living expense for a little while however I’m not convinced it is enough for
the long-term. No info is given as source of money, whether from parents or
not. If parents still in Iran then they are probably unable to send him money
because of international sanctions. I note from stamps in his passport that
[Applicant] was in Canada from September 2013 until March 2014 so not clear if
he was working during that time (says on app form that he studied while in
Canada). Also not clear if [Applicant] has well-integrated into Israeli society
given the relatively short time since arriving in Israel. In sum, I’m not
convinced that [Applicant] is well-established in Israel and that he will leave
Canada at the end of his stay. Refused.
[16]
Decision-makers are presumed to have weighed and
considered all of the evidence before them, absent strong indications to the
contrary (Flores v. Canada (Minister of Citizenship & Immigration),
2008 FC 723 at para 15).
The Officer’s GCMS notes are a reasonable reflection of
the information submitted by the Applicant in support of his application, including
information regarding his work history, bank deposits, family ties, travel
history, and the stated purpose of his proposed travel to Canada.
[17]
The Applicant complains that the Officer’s GCMS
notes reveal unwarranted speculation, particularly regarding whether the
Applicant worked during his previous visit to Canada and whether the
Applicant’s parents continue to reside in Iran. The Applicant says that there
was no evidence to justify speculation of this kind. Furthermore, the checklist
that accompanied the Officer’s GCMS notes indicated that the Applicant’s travel history was an area of concern.
[18]
The Respondent concedes that the inclusion of
the Applicant’s travel history in the checklist as an area of concern was an
error. Nevertheless, the Respondent argues that questions regarding the
Applicant’s previous visit to Canada and whether his parents might be able to
provide financial support arose from the information provided by the Applicant,
as well as the requirements of the IRPA and the Regulations, and they were
therefore legitimate. I agree. Furthermore, neither of these considerations was
central to the Officer’s decision, which was fundamentally concerned with the
sufficiency of the Applicant’s existing funds to support him throughout his
stay in Canada and his willingness to leave at the end of the Programme.
[19]
The onus was on the Applicant to satisfy the
Officer that he was not an immigrant and that he met the statutory requirements
of the IRPA and the Regulations (Obeng v Canada (Minister of Citizenship and
Immigration), 2008 FC 754 at para 20 [Obeng]). As this Court observed
in Hong:
[31] Applications
for student visa are to be analyzed on a case-by-case basis and the role of the
Visa Officer does not amount to supplementing the applicant's evidence, as counsel for Ms. Hong
seems to suggest. It is trite law that the onus is on the applicant to provide
the Visa Officer with all the relevant information and complete documentation
in order to satisfy the Visa Officer that the application meets the statutory
requirements of the Act and the Regulations (Tran v. Canada (Minister of
Citizenship & Immigration), 2006 FC 1377. More particularly, in this
case, it was the applicant's responsibility to provide the Visa Officer with
all of the evidence in order to satisfy the Visa Officer of her financial
capacity.
[20]
The decision of the Officer was discretionary in
nature. It was primarily based on questions of fact. The decision is entitled to
considerable deference from this Court, given the Officer’s special expertise (Obeng
at para 21; Singh at para 31; Hong at para 13). The role of
this Court is not to reweigh the evidence but to determine if the outcome falls
within a range of reasonable outcomes (Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12 at paras 4, 59
and 61). I am satisfied that the Officer’s decision fell within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
B.
Whether the Applicant was given a sufficient
opportunity to respond to the Officer’s concerns
[21]
The Applicant says that he should have been
called for an interview, or given an opportunity by letter or telephone to
respond to the Officer’s concerns regarding his willingness to leave Canada
upon the completion of the Programme, as well as his financial support while in
Canada. I disagree. Pursuant to the IRPA and the Regulations, a foreign
national seeking to obtain a student visa must convince the visa officer that he
is not inadmissible to Canada and that he meets the eligibility requirements
set out in the legislation. As noted above, the procedural protections that
arise in the context of a student visa application are “relaxed”,
and there is no requirement that an applicant be permitted to respond to an
officer’s concerns as they arise (Tran at para 30).
[22]
If an officer intends to base his decision on
extrinsic information of which an applicant is unaware, then an opportunity to
respond should be made available to enable the applicant to disabuse the
officer of any concerns arising from that evidence (Huang v Canada (Minister
of Citizenship and Immigration), 2012 FC 145 at para 7). However, where the
issue arises out of material provided by the applicant, as in this case, there
is no obligation to provide an opportunity for explanation since the provider
of the material is taken to know the contents of the material (Poon v Canada
(Minister of Citizenship and Immigration) (2000), 198 FTR 56 at para 12,
citing Wang v Canada (Minister of Citizenship and Immigration) (1999),
173 FTR 266).
[23]
A duty to provide an opportunity to respond may
also arise where the credibility, accuracy or genuine nature of the information
submitted by the applicant is the basis of the officer’s concern (Hassani v
Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24).
However, in this case I agree with the Respondent that the basis of the
Officer’s concern was not the Applicant’s credibility, but rather the sufficiency
of the information that he provided in support of his application.
[24]
The burden was on the Applicant to satisfy the
Officer that he was not an immigrant. It was therefore incumbent upon the
Applicant to establish that his intentions were bona fide, and that he
would leave Canada at the end of the authorized period. A visa officer should
be able to make such an assessment on the face of the application (Singh
at para 32).
[25]
I am therefore satisfied that the Respondent complied
with the duty of fairness. The Officer reasonably considered the information provided
by the Applicant and made his decision in accordance with the legislative
framework of the IRPA and the Regulations. The Applicant did not discharge the
onus placed on him when he initially made his application, and there was no
obligation on the Officer to give him an opportunity to supplement his
deficient application.
[26]
For the foregoing reasons, the application for
judicial review is dismissed. Neither party proposed a question for
certification.
Email this Content