Docket: IMM-8398-13
Citation:
2015 FC 579
Ottawa, Ontario, May 4, 2015
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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MARIANA BESHARA
NAWWAR FARID
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION CANADA
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 for judicial review of the
decision of a visa officer [Officer], dated November 3, 2013, which refused the
Applicant’s application for a temporary resident visa.
II.
BACKGROUND
[2]
The Applicant is a citizen of Egypt. In March
2013, she was offered a job with a company located in Toronto. In May 2013, the
Applicant applied for a work permit and temporary resident visa.
[3]
In August 2013, the applications were rejected
because the Officer was unsatisfied with the Applicant’s financial
documentation.
[4]
In October 2013, the Applicant re-applied for a
work permit and temporary resident visa.
III.
DECISION UNDER REVIEW
[5]
The Applicant’s second application was rejected
on November 3, 2013. The Officer was not satisfied that the Applicant would
leave Canada at the end of her stay as a temporary resident because of her
family ties in Canada and Egypt, and because of her limited employment
prospects in Egypt. The Officer was also not satisfied by the contact
information on the Applicant’s employment letter. The Officer indicated that
the “[f]ax number may have been erased and there are no
land line numbers which is uncommon in Egypt. No evidence of social insurance
subscription” (Certified Tribunal Record [CTR] at 4). The Officer also
said that there was no documentation relating to the Applicant’s husband.
[6]
Further reasons for the Decision are provided in
the Global Case Management System [GCMS] notes (CTR at 105):
Prev intvw notes show contradictions. On the
one hand, PA indicates that husb earns low salary from govt job but then
indicates that salary from private engg work is EGP 30k per month which is very
high yet could not indicate why he insists on keeping govt job.
Also if husb is earning that much, how come
she indicated wishes to go to Cda for 2 yrs to save some money.
Funds last time were deposited all at once.
This time, no evidence of funds at all.
After a careful review of all the foregoing,
I am not satisfied that PA is well-established in Egypt nor that she would
return to Egypt after the 2 yrs of her LMO have been terminated, if granted a
WP.
No docus provided this time as evidence of
husb’s employment and reasons why he is not accompanying. I believe that husb
is only staying behind to act as a tie to Egypt.
Refused.
IV.
ISSUES
[7]
The Applicant raises the following issues in
this proceeding:
1. Whether the Officer fettered his or her discretion;
2. Whether the Officer breached procedural fairness; and
3. Whether the Decision is unreasonable.
V.
STANDARD OF REVIEW
[8]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[9]
The Applicant submits that the Officer’s factual
assessments are reviewable on a standard of reasonableness: Dhillon v Canada
(Citizenship and Immigration), 2009 FC 614 at para 19 [Dhillon]. The
Respondent submits that the Officer’s conclusions with respect to findings of
fact or mixed fact and law are reviewed on a standard of reasonableness: Dunsmuir,
above, at paras 47, 53, 55, 62; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at paras 52-62 [Khosa].
[10]
The Court agrees that the Officer’s factual
determinations are reviewable on a standard of reasonableness: Dhillon,
above, at para 19; Zhou v Canada (Citizenship and Immigration), 2013 FC
465 at para 8. Questions of procedural fairness are reviewable on a
standard of correctness: Mission Institution v Khela, 2014 SCC 24 at
para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 31.
[11]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: see Dunsmuir, above, at para 47; Khosa, above,
at para 59. Put another way, the Court should intervene only if the Decision
was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[12]
The following provisions of the Act are
applicable in this proceeding:
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Obligation
on entry
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Obligation
à l’entrée au Canada
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20. (1) Every
foreign national, other than a foreign national referred to in section 19,
who seeks to enter or remain in Canada must establish,
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20. (1)
L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y
séjourner est tenu de prouver :
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[…]
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[…]
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(b) to become
a temporary resident, that they hold the visa or other document required
under the regulations and will leave Canada by the end of the period
authorized for their stay.
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b) pour
devenir un résident temporaire, qu’il détient les visa ou autres documents
requis par règlement et aura quitté le Canada à la fin de la période de
séjour autorisée.
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[…]
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[…]
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Temporary
resident
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Résident
temporaire
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22. (1) A
foreign national becomes a temporary resident if an officer is satisfied that
the foreign national has applied for that status, has met the obligations set
out in paragraph 20(1)(b), is not inadmissible and is not the subject of a
declaration made under subsection 22.1(1).
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22. (1)
Devient résident temporaire l’étranger dont l’agent constate qu’il a demandé
ce statut, s’est déchargé des obligations prévues à l’alinéa 20(1)b), n’est
pas interdit de territoire et ne fait pas l’objet d’une déclaration visée au
paragraphe 22.1(1).
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[13]
The following provisions of the Immigration
and Refugee Protection Regulations, SOR/2002-227 are applicable in this
proceeding:
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Issuance
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Délivrance
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179. An
officer shall issue a temporary resident visa to a foreign national if,
following an examination, it is established that the foreign national
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179. L’agent
délivre un visa de résident temporaire à l’étranger si, à l’issue d’un
contrôle, les éléments suivants sont établis :
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(a) has
applied in accordance with these Regulations for a temporary resident visa as
a member of the visitor, worker or student class;
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a) l’étranger
en a fait, conformément au présent règlement, la demande au titre de la
catégorie des visiteurs, des travailleurs ou des étudiants;
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(b) will
leave Canada by the end of the period authorized for their stay under
Division 2;
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b) il
quittera le Canada à la fin de la période de séjour autorisée qui lui est
applicable au titre de la section 2;
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[…]
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[…]
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VII.
ARGUMENT
A.
Applicant
[14]
The Applicant submits that the Officer erred in
finding that she would not return to Egypt when her visa expired: Dhanoa v
Canada (Citizenship and Immigration), 2009 FC 729; Cao v Canada
(Citizenship and Immigration), 2010 FC 941. The Applicant relies primarily
on the fact that her husband will remain in Egypt, where he works and earns a
high income. She also has other family members who will remain in Egypt. The
Applicant says that her lack of employment prospects in Egypt cannot be a valid
consideration because no applicant would ever receive a work permit if that
were the standard.
[15]
The Applicant also submits that the Officer
erred in discounting her employment letter. The Officer should have contacted
the Applicant or her employer if there were questions regarding the letter. The
Applicant also complains that, in an earlier temporary resident visa
application, she was not advised that there were problems with the employment
letter. As a result, it was reasonable for her to expect that the letter was
sufficient. Further, it is uncommon for employees in Egypt to have social
insurance numbers.
[16]
Finally, the Officer erred in finding that there
was no documentation concerning the Applicant’s husband. The Applicant
submitted documents relating to his employment, property ownership and tax
records.
B.
Respondent
[17]
The Respondent objects to the evidence attached
to the Applicant’s affidavit which was not before the Officer. Judicial review
should proceed only on the basis of the evidence that was before the
decision-maker: Lemiecha v Minister of Employment and Immigration (1993),
72 FTR 49 at para 4; Samsonov v Canada (Citizenship and Immigration),
2006 FC 1158 at para 7.
[18]
The duty to provide reasons for temporary
resident visas is minimal. An applicant has no legal right to obtain a visa and
bears the burden of establishing the merits of his or her request; and the
refusal of a temporary resident visa has a minimal impact on someone who is
outside of Canada: Donkor v Canada (Citizenship and Immigration), 2011
FC 141; Obeng v Canada (Citizenship and Immigration), 2008 FC 754; Singh
v Canada (Citizenship and Immigration), 2009 FC 620. The Officer met the
minimal requirements. The Officer gave reasons for not being satisfied that the
Applicant would leave Canada at the end of her authorized stay. The Officer
considered the Applicant’s family ties in Canada and the limited employment
prospects in her home country. There was also insufficient contact information
in the Applicant’s employment letter and she failed to provide evidence of a social
insurance number. The Officer is entitled to consider the totality of the
circumstances: Wong v Canada (Minister of Citizenship and Immigration)
(1999), 246 NR 377 (FCA); Pei v Canada (Citizenship and Immigration),
2007 FC 391 at para 15. The Officer clearly explained why the Applicant’s
application was rejected and the Applicant simply asks the Court to reweigh the
evidence.
[19]
The Federal Court has held that an officer has
no obligation to provide a visa applicant with a running score of the
weaknesses in an application: Thandal v Canada (Citizenship and Immigration),
2008 FC 489 at para 9; Nabin v Canada (Citizenship and Immigration),
2008 FC 200 at paras 7-10 [Nabin]; Kaur Soor v Canada (Minister of
Citizenship and Immigration), 2006 FC 1344 at para 12. The Officer had no
obligation to notify the Applicant of his or her concerns.
[20]
Finally, the Officer was not bound by any
findings in the Applicant’s previous visa applications. The Officer was only
required to consider the evidence placed before him or her in this application.
Regardless, there are no findings concerning the employment letter in the
previous decision.
C.
Applicant’s Reply
[21]
In reply, the Applicant reiterates her
submissions and submits that if the Officer required her social insurance number,
the Officer could have contacted the Applicant for the information. She was
unable to include it in her original application because of long delays in
obtaining it from the Egyptian government.
VIII.
ANALYSIS
[22]
The Respondent is right to point out that it is
not open to the Applicant to supplement the record and ask the Court to
consider materials and facts that were not before the Officer. See Association
of Universities and Colleges of Canada v Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at paras 19-20. Consequently, I will only
address the concerns raised by the Applicant on the basis of the record that
was before the Officer.
[23]
Two principal points arise out of the Decision: the
Officer’s concerns about the contact information on the Applicant’s employment
reference letter, and “No docus for husb.”
[24]
It is not clear why the contact information
provided was a problem. The contact information on the reference letter included
the company’s address and gave the cell phone of the general manager who signed
the letter. The reasons say that the “[f]ax number may
have been erased and there are no land line numbers which is uncommon in
Egypt.” It is unclear whether the contact information prevented the Officer
from making appropriate investigations with the company, or whether it caused
the Officer to doubt the authenticity of the reference letter. After reading
the GCMS notes, my conclusion is that the Officer is simply pointing out
certain features of the reference letter but they do not play any material role
in the Decision which is clearly based upon the Officer’s determination that he
or she was not satisfied that the Applicant would leave Canada at the end of
the visa period.
[25]
The reasons say there were no documents for the
Applicant’s husband, and the GCMS notes elaborate and say “No docus provided this time as evidence of husb’s employment
and reasons why he is not accompanying. I believe that husb is only staying
behind to act as a tie to Egypt.”
[26]
The CTR contains a letter from the Applicant in
which she says that she is submitting the following “financial
support documents” (CTR at 16):
a) The experience letter for the Applicant’s spouse’s work as a civil
engineer in Saudi Arabia;
b) The current employment letter and the payslips for the Applicant’s spouse
as a civil engineer from the local unit of Talkha-El Dakahha – Egypt;
c) The business registration for the spouse’s engineering consulting
company; and
d) The Notice of Assessment from the “National Taxes Authority” for the
years 2012, 2011, 2010, and 2005 related to the consulting office income.
[27]
The Applicant explains that “[m]y spouse is working as a civil engineer in the local unit
of Talkha city, El Dakha, Egypt from 07/04/1997 till 07/10/1997 and from
01/01/2002 till now” [sic, emphasis removed]. She also explains
that “[m]y spouse has an Engineering Consulting Office
from 01/09/2004.”
[28]
My review of the CTR reveals that it does not
include the evidence of the husband’s current employment (as referred to above)
and does not explain why he is not accompanying. There is an experience letter
relating to the Applicant’s husband’s work as a civil engineer in Saudi Arabia
which indicates that he worked for the company until 2001 (CTR at 18). There
are a series of other documents following this experience letter but they all
appear to be written in Arabic.
[29]
Applicants are advised that their supporting
documents must be provided in English or French, or be translated into English
or French (Government of Canada, Guide 5487 – Applying for a Work Permit
outside of Canada):
Translation of documents
Unless instructed otherwise by a CIC
employee, all supporting documentation must be:
• in English or French; or
If it is not in English or French, it must
be accompanied by:
• the English or French
translation; and
• an affidavit from the person who
completed the translation;
• and a certified photocopy of the
original document.
[Emphasis in original]
[30]
The CTR does not contain translated copies of
the documents. The documents may be, as the Applicant says, evidence of her husband’s
current employment and consulting work. But without translated copies of the
documents, there was no way for the Officer to know what information they
contained, and there is no way for the Court to know.
[31]
In her application record, the Applicant
includes (at 85, 87, 92-94):
a) A “Certificate of Experience” for her spouse showing that he
returned to work for the local unit for Talka city center on 12/01/2002. While
the translation is not clear, it appears that he continues to work for the
company (“he one of staff headed by the center city of
Talkha so far…”);
b) A “Statement of Salary Synonyms” for the month of July 2013;
c) A “Tax Card” from the Arab Republic of Egypt. It is unclear what
information the tax card provides. It provides a starting date of 01/09/2004
and says it was issued for an individual. An annex, dated 15/05/2011, provides
that the Applicant’s husband requested that the address of an engineering
office be moved as of 16/11/2006. The final page is described as a “Tax avowal/
wealth avowal” which simply states it was issued 15/05/2011 and expires
14/05/2016.
[32]
There is no evidence that any of this
documentation was before the Officer. It does not appear in the CTR which, in
accordance with Rule 17 of the Federal Courts Citizenship, Immigration and Refugee
Protection Rules, SOR/93-22, is a certified record of the documents that
were before the Officer.
[33]
At the oral hearing of this application, the
Applicant questioned the accuracy and the completeness of the CTR but offered
no reason why it should be incomplete. The record shows that the Applicant has
made several visa applications that have been refused and she does not appear
to be entirely clear as to what she submitted with each application as she
regards them all as part of one application, which they are not.
[34]
The Applicant also requested further time to
provide the Court with evidence that the CTR is incomplete and that she did
submit the documentation referred to in this application as listed above.
[35]
If the Applicant felt that the CTR was incomplete,
she should have obtained a copy of it and submitted evidence of its
incompleteness with her application. In fact, the covering letter that
accompanies the CTR shows that a copy of the CTR was sent to the Applicant in
accordance with Rule 17. I have no evidence before me that the Applicant did
not receive her copy or that she could not have raised any issues regarding the
CTR in her application.
[36]
In any event, even if the information that the
Applicant says she submitted had been before the Officer, it is entirely
unclear what the documentation establishes. The tax card references an
engineering office but it does not establish that her husband has a consulting
business. There is no other documentation to establish her husband’s consulting
business, and there is no evidence as to the reasons why he is not accompanying
the Applicant.
[37]
On the record before me, then, I cannot say that
the Officer was mistaken regarding the husband’s documentation, or that it
gives rise to a material reviewable error.
[38]
The Respondent is right to say that the
Applicant has no legal right to a visa and bears the burden of establishing the
merits of her request and providing the information and documentation required
for the Officer to make an assessment. See Hamza v Canada (Citizenship and
Immigration), 2013 FC 264 at para 22 [Hazma]; Nabin, above,
at para 7.
[39]
It is also clear that, in this context, the
Officer was under no obligation to contact the Applicant with a view to
correcting any weaknesses or gaps in her application. The Officer’s concerns
are in relation to the sufficiency of the evidence, not with the credibility or
authenticity of the evidence. See Lam v Canada (Minister of
Citizenship and Immigration) (1998), 152 FTR 316 at para 4; Hassani v
Canada (Citizenship and Immigration), 2006 FC 1283 at para 24; Hamza,
above, at para 24. I can see no procedural fairness issue.
[40]
All in all, I can find no reviewable error with
this Decision that would require it be returned for reconsideration.
[41]
Both sides agree there is no question for
certification and the Court concurs.
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