Docket: IMM-1861-16
Citation:
2016 FC 1176
[ENGLISH
TRANSLATION]
Ottawa, Ontario, October 21, 2016
PRESENT: The Honourable
Mr. Justice Shore
|
BETWEEN:
|
|
RIMA CHARARA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Background
[1]
Under the constitution, immigration is an area
of shared jurisdiction between the federal government and the provinces. In
Quebec, the Certificat d’acceptation du Québec (CAQ) is an essential tool of
the Ministère de l’Immigration, de la Diversité et de l’Inclusion for selecting
immigrants eligible to settle in the province. In exercising its constitutional
power, Quebec uses the CAQ to achieve its provincial immigration objectives.
Thus, Quebec’s prior consent is required for an international student to
be admitted by Canada and to have a visa issued. However, admitting
individuals into the province is within the jurisdiction of the federal
government, which defines and enforces the conditions and criteria to be
met to obtain authorization to enter and remain in Canada. It is essential
that each level of government fulfill its role, i.e. concurrent jurisdictions.
II.
Nature of the matter
[2]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA) of a decision rendered by a Citizenship and Immigration
Canada (CIC) officer on April 16, 2016, to deny the applicant a study permit
under subsection 11(1) of the IRPA.
[3]
The application for judicial review is dismissed
for the following reasons.
III.
Facts
[4]
The applicant, age 36, is a Lebanese citizen and
a permanent resident of the United Arab Emirates. She is married and the mother
of a three-year-old boy. One of the applicant’s sisters lives in Montréal,
Canada.
[5]
The applicant has a master of science degree
from the Université Libanaise, which she obtained in 2002. She worked as an
assistant pharmacist from 2003 to 2005. She studied at the Dubai Pharmacy
College from 2007 to 2010.
[6]
On February 3, 2016, the applicant was admitted
to the “Health, Assistance and Nursing care”
diplôme d’études professionnelles (DEP) program at the Competency Development
Centre Vimont (Laval) operated by the Sir Wilfrid Laurier School Board. The
tuition fees for this program were $32,500.
[7]
On February 5, 2016, the applicant obtained a
CAQ issued by the Ministère de l’Immigration, de la Diversité et de l’Inclusion
certifying that she met the Quebec requirements for temporary residents in the
student category.
[8]
On February 22, 2016, the applicant submitted
the Application for a Study Permit form to the Immigration Division of the
Canadian Embassy in Abu Dhabi. This application was accompanied by banking
information and documentation certifying her husband’s employment and salary.
[9]
On April 16, 2016, this application was denied,
and the applicant filed an appeal from the decision before our Court on May 2,
2016.
IV.
Decision
[10]
In a letter dated April 16, 2016, a CIC officer
in the Immigration Division of the Canadian Embassy in Abu Dhabi denied the
applicant’s application for a study permit. The officer explained in writing
that after having reviewed the applicant’s file, he was not satisfied that she
met the criteria set out in the IRPA.
[11]
The officer was not convinced that the applicant
had the necessary financial resources to cover the tuition fees for her course
of study or that she would leave Canada by the end of [the period authorized
for] her stay. The officer also cited the absence of a study plan and the
apparent inconsistency between the project submitted and the applicant’s
academic profile. He also noted that the applicant had not provided consent
from the father of the minor child accompanying the applicant.
[12]
The officer’s notes, given to the applicant on
May 17, 2016, also outlined the officer’s doubts regarding the financial
capacity of the applicant’s spouse: “Although spouse
appears to have adequate income, bank statement shows loan repayments and
modest overall balance. Balance appears insufficient to cover both tuition and
living expenses for his wife and child in Canada.” Doubting the
consistency of the proposed sequence of studies, the officer questioned the
applicant’s ability to study full-time and be the sole care provider for the
minor child who was to accompany her.
V.
Issues
[13]
The issues raised in this case are:
1.
Did the officer breach his duty of procedural
fairness by failing to seek clarification from the applicant before refusing
her case?
2.
Did the officer render his decision based on
erroneous findings of fact, namely insufficient funds and the applicant’s
intention to remain in Canada after the end of [the period authorized for] her
stay?
[14]
The first issue involves natural justice and
must be reviewed on the standard of correctness (Singh v Canada (Citizenship
and Immigration), 2012 FC 526 at paragraph 31 [Singh]).
[15]
The second issue is one of fact, which falls
within the officer’s discretion and must therefore be reviewed on the standard
of reasonableness. As has been pointed out repeatedly, this Court should give
great deference to decisions rendered by visa officers, given their expertise
in analyzing and assessing student visa applications (Singh, above, at
paragraph 14).
VI.
Relevant provisions
[16]
In this case, subsection 11(1) of the IRPA
provides that foreign nationals must apply to an officer for a visa in order to
obtain a permit to study in Canada.
|
Application before entering Canada
|
Visa et documents
|
|
11 (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
|
11 (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
|
[17]
The student permit is granted by the officer if
the applicant proves that he meets the criteria set out in sections 216(1)
and 220 of the Immigration and Refugee Protection Regulations,
SOR/2002-227. These provisions require applicants to demonstrate that they will
leave Canada upon the expiry of the resident permit and that they have
sufficient funds to cover their tuition fees and living expenses.
|
Study permits
|
Permis d’études
|
|
216 (1) Subject to subsections (2) and
(3), an officer shall issue a study permit to a foreign national if,
following an examination, it is established that the foreign national
|
216 (1)
Sous réserve des paragraphes (2) et (3), l’agent délivre un permis d’études à
l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis :
|
|
(a) applied for it in accordance with this Part;
|
a) l’étranger a demandé un permis d’études conformément à la
présente partie;
|
|
(b) will leave Canada by the end of the period authorized for
their stay under Division 2 of Part 9;
|
b) il quittera le Canada à la fin de la période de séjour qui lui
est applicable au titre de la section 2 de la partie 9;
|
|
…
|
[…]
|
|
Financial resources
|
Ressources financières
|
|
220 An officer shall not issue a study
permit to a foreign national, other than one described in paragraph 215(1)(d)
or (e), unless they have sufficient and available financial resources,
without working in Canada, to
|
220 À
l’exception des personnes visées aux sous-alinéas 215(1)d) ou e), l’agent ne
délivre pas de permis d’études à l’étranger à moins que celui-ci ne dispose,
sans qu’il lui soit nécessaire d’exercer un emploi au Canada, de ressources
financières suffisantes pour :
|
|
(a) pay the tuition fees for the course or program of studies that
they intend to pursue;
|
a) acquitter les frais de scolarité des cours qu’il a l’intention
de suivre;
|
|
(b) maintain themself and any family members who are accompanying
them during their proposed period of study; and
|
b) subvenir à ses propres besoins et à ceux des membres de sa
famille qui l’accompagnent durant ses études;
|
|
(c) pay the costs of transporting themself and the family members
referred to in paragraph (b) to and from Canada.
|
c) acquitter les frais de transport pour lui-même et les membres
de sa famille visés à l’alinéa b) pour venir au Canada et en repartir.
|
VII.
Submissions of the parties
A.
Submissions of the applicant
[18]
As submitted in her factum, the applicant argued
that the officer acted unfairly by not allowing her to provide further
explanations if he had any doubts with regard to her study plan (at
paragraph 7.2) or her financial situation (at paragraph 8.3).
[19]
With respect to the reasons given by the
officer, the applicant first argued that the officer erred in assessing the
funds available to pay for her studies in Canada. The applicant complained that
the officer did not consider the documentary evidence submitted. The applicant
alleged that the evidence provided showed that her husband earned CAD$80,000
per year ($6,500 per month) and had an available bank balance of nearly
CAD$14,000. Also, the fact that the applicant had obtained a CAQ tended to show
that she had the financial resources needed to pay for her studies.
[20]
The applicant then argued that the officer
committed an error in his assessment of the purpose of her stay in Canada.
Obtaining a CAQ showed that she was serious, especially in view of the fact
that none of the required forms indicated that a study plan had to be
submitted. The fact that she left her husband behind should have convinced the
officer that she would return to the United Arab Emirates upon completing her
studies.
B.
Submissions of the respondent
[21]
The respondent countered that the officer met
his duty of procedural fairness. The applicant had the burden of convincing the
officer that she met the requirements of the Act by producing the best
evidence. The officer did not have to put his concerns to the applicant or
inform her of the importance of submitting a detailed study plan.
[22]
The respondent further argued that the officer’s
decision fell within a range of possible outcomes and that it was reasonable in
light of the factors reviewed.
[23]
The respondent contended that the officer
correctly assessed the funds made available to the applicant by her husband,
taking into account not only the assets but also the liabilities posted in the
account. While the couple’s income and savings were sufficient to cover living
expenses and the annual $16,000 tuition fees, they would nevertheless be
inadequate after the loan on the bank statement was deducted. The respondent
also noted that a Certificat de Sélection du Québec cannot be used as a
substitute for the Canadian officer’s assessment of the financial resources of
an international student or guarantee that the officer will issue a visa.
[24]
The respondent found the officer’s decision
reasonable in that the applicant failed to demonstrate that she would leave
Canada at the end of the period for which she sought authorization. The
respondent cited the apparent inconsistency of the plan submitted by the
applicant, who although she had a master of science degree, was enrolling in a
vocational program. He pointed out that she did not provide a study plan and
did not explain how she could look after her son while completing her studies.
VIII.
Analysis
A.
Procedural fairness
[25]
On the issue of procedural fairness, the Court
agrees with the respondent’s arguments and finds that the officer did not err
in not seeking clarification from the applicant who did not provide a complete
record.
[26]
As this Court has reiterated in a number of
decisions, the onus is on the person applying for a study permit to convince
the visa officer that he has the financial means to complete his studies and
will leave Canada after the authorized stay. As Madam Justice Snider commented
in Ayatollahi v Canada (Minister of Citizenship and Immigration), 2003
FCT 248, 229 FTR 98 [Ayatollahi]:
[21] There was not, in my view, a breach
of procedural fairness as a result of the visa officer’s failure to put his
concerns to the Applicant. Most importantly, the burden was on the
Applicant to come forward with his best case. He did not do this;
specifically, he failed to give any rationale for his proposed course of
studies, other than to assist his father upon his return. Given the onus on the
Applicant, I believe that it would have been reasonably open to the officer to
refuse the application on that basis alone. [Emphasis of the Court]
[27]
An applicant who fails to discharge his burden
of proof, submits an incomplete record, or leaves doubt as to the true purpose
of the desired stay in Canada, cannot expect the officer to inform him of the
deficiencies in his record or give him an opportunity to explain himself (Sharma
v Canada (Citizenship and Immigration), 2009 FC 786 at paragraph 8 [Sharma];
My Hong v Canada (Citizenship and Immigration), 2011 FC 463 at
paragraph 31 [My Hong]).
[28]
In this case, the onus was on the applicant to
submit a clear record, justifying the objective of obtaining the diploma from
the program in which she wanted to enroll. The document entitled “Study Permit – Visa Office Instructions (IMM 5814),”
available on the Government of Canada website, contains clear instructions and
lists all relevant documents to support this type of application for a study
permit. The officer was under no obligation to provide the applicant with
advice on this matter.
[29]
It is surprising that the applicant chose to
seek redress from the courts to defend her interests. It would have been in her
interest to file a new application with the embassy, ensuring that it was
complete.
B.
Reasonableness of the decision based on the
evidence submitted
(1)
Financial resources
[30]
The visa officer initially denied the application
for a study permit because the applicant did not have the resources needed to
complete her studies, given that the loan reduced the amount available in the
bank account.
[31]
According to the evidence provided by the
applicant, the Court finds that the officer erred in his assessment of the
financial resources available to the applicant for her studies. The couple’s
annual income (CAD$80,000 net) and savings (CAD$14,000) are objectively
sufficient to cover the annual tuition fees ($16,000) and living expenses of
the applicant and their minor child. The loan mentioned by the officer is not
the type of financial burden that would jeopardize the applicant’s plan. The
officer’s assessment of the financial resources is therefore not consistent
with the standard of reasonableness.
[32]
Nevertheless, that error is not fatal to the
officer’s decision and does in itself provide grounds for the Court to set it
aside.
[33]
With respect to the CAQ submitted by the
applicant (Ramzi v Canada (Citoyenneté et Immigration), 2007 CF 486 [Ramzi];
Biao v Canada (Minister of Citizenship and Immigration) 2001 FCA 43),
according to the CIC’s instructions, the CAQ does not exempt visa applicants
seeking to study in Quebec from the financial sufficiency assessment process
conducted by Canadian visa officers. The CAQ specifically states that it is not
an admission document and does not exempt the holder from the authorizations
required by CIC.
[34]
Under the constitution, immigration is an area
of shared jurisdiction between the federal government and the provinces. In
Quebec, the CAQ is an essential tool of the Ministère de l’Immigration, de la
Diversité et de l’Inclusion for selecting immigrants eligible to settle in the
province. In exercising its constitutional power, Quebec uses the CAQ to achieve
its provincial immigration objectives. Thus, Quebec’s prior consent is required
for an international student to be admitted by Canada and to have a visa
issued. However, admitting individuals into the province is within the
jurisdiction of the federal government, which alone defines and enforces the
conditions and criteria to be met to obtain authorization to enter and remain
in Canada. It is essential that each level of government fulfill its role, i.e.
concurrent jurisdictions.
(2)
Departure from Canada upon expiry of the
authorized stay
[35]
Secondly, the visa officer denied the
application for a study permit, because he was not convinced that the applicant
would leave Canada at the end of the authorized period, in particular because
the true purpose of her stay had not been demonstrated. This was the officer’s
main concern in his review of the visa application and the main factor that
justified the denial of her application.
[36]
We should bear in mind that the onus of
convincing the visa officer of the merits of her study plan lay with the
applicant (Ayatollahi, Sharma and My Hong, above).
However, she failed to discharge her burden.
[37]
The applicant’s academic program does not appear
to be consistent with the studies she planned to complete in Canada. The
applicant holds a master’s degree in science and a diploma in pharmacy. Yet,
she would now like to obtain a diplôme d’études professionnelles (DEP)
[college-level diploma] in health. However, this DEP program is an
undergraduate program and she has completed graduate studies. The applicant did
not explain this inconsistency and therefore did not demonstrate that the
purpose of her stay in Canada was actually to pursue her education. Thus, the
officer was not convinced that the applicant intended to leave Canada at the
end of the authorized period if she were granted a study permit.
[38]
It was therefore open to the officer to deny the
application for a study permit. In the absence of a study plan specifying the
program’s utility to the applicant in light of her background and the
professional objective pursued by the applicant, the officer could reasonably
refuse to grant the visa (Hussain v Canada (Citizenship and Immigration),
2012 FC 900; Ramzi, above).
[39]
Consequently, the Court concurs with the
respondent’s arguments regarding the officer’s reasonableness based on the
incoherence of her plan for further education.
[40]
However, the Court stresses that the officer’s
assumptions about the applicant’s ability to ensure her child’s well-being
while studying full time are inappropriate. The officer made a value judgment
that belongs to the last millennium and that is unacceptable. The Court notes
that a large number of women have completed their education and entered the
labour market without unduly affecting their offspring.
C.
Reasonableness
[41]
For the reasons stated above, based on all the
evidence presented, the Court cannot agree with the applicant’s arguments and
finds that the officer’s denial of her application for a study permit is
reasonable.
IX.
Conclusion
[42]
The application for judicial review is
dismissed.
Email this Content