Docket: IMM-3465-15
Citation:
2016 FC 268
Ottawa, Ontario, March 1, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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KEHINDE PAUL BALEPO
TEMITOPE JULIANA BALEPO
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a decision
dated June 1, 2015 of an officer of the Visa Section of Citizenship and
Immigration Canada, at the High Commission of Canada in Accra, Ghana [the
Officer], in which the Officer refused the application of the Principal
Applicant, Kehinde Paul Balepo, for issuance of a study permit under section
219 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Principal Applicant is a 28 year old citizen
of Nigeria who has been working as a relationship manager with First Bank of
Nigeria Ltd since 2008. He was accepted to pursue a post-secondary diploma in
Environmental Engineering Technology at Saskatchewan Polytechnic and applied
for a study permit. The other Applicant is his spouse, who is planning to
accompany him to Canada.
II.
Impugned Decision
[4]
The Officer was not satisfied that the Principal
Applicant met the requirements of IRPA and the regulations made thereunder. In
particular, the Officer was not satisfied the Principal Applicant would leave
Canada at the end of his authorized stay. The factors considered were his
travel history, his family ties in Canada and Nigeria, the length of his
proposed stay in Canada, the purpose of visit, his current employment situation
and his personal assets and financial status. The Global Case Management System
[GCMS] notes, prepared prior to issuance of the decision, include the following:
A.
The Principal Applicant is married, with no
children, and his spouse is accompanying him and had requested a work permit;
B.
The Principal Applicant declares his mother and
one sibling as residing in Canada. He has strong family ties to Canada and limited
remaining family ties to his home country;
C.
He had some UK travels but no significant travel
since 2013;
D.
He obtained a BSc in Geology with average grades
in 2005;
E.
He has limited financial and professional ties
to his home country;
F.
There was no evidence that the Principal
Applicant’s employer is aware that he intended to study abroad;
G.
He was sponsored by siblings;
H.
He had been out of studies for nine years, and it
was unclear why he wanted to return now. The Principal Applicant had already
obtained a higher bachelor degree in a similar field and it appeared unusual to
apply now for a post-secondary diploma in this field.
[5]
The GCMS notes record that, based on the
evidence, the Officer was not satisfied with the Principal Applicant’s purpose
for his studies. The Officer was not satisfied that he had sufficient ties to
compel return to his home country, that he was a genuine student who would
depart at the end of his authorized stay, or that studying in Canada was not
principally for the purpose of gaining entry to Canada.
III.
Issues and Standard of Review
[6]
The parties agree, and I concur, that the standard of review
applicable to the Officer’s decision is reasonableness (see Obot v Canada
(Minister of Citizenship and Immigration), 2012 FC 208). The sole issue
raised by the parties is whether the Officer’s decision is reasonable.
IV.
Submissions of the Parties
A.
The Applicants’ Position
[7]
The Applicants submit that the Officer relied on
extraneous considerations and considered irrelevant facts in reaching the
decision to refuse the study permit application, such as the Principal Applicant’s
current employer’s awareness of his intentions, his average grades and the
sponsorship by his sibling.
[8]
The Applicants also argue that the Officer
disregarded evidence including the Principal Applicant’s positive travel history
to the UK without any overstay, the fact that his parents and several siblings live
in Nigeria, and his financial assets, which he argues the Officer erroneously
described as “limited”. The Principal Applicant
notes that his mother is not a permanent resident of Ontario but was visiting
Canada on a temporary resident visa. His application indicated her present
address, not her permanent address, to be in Canada.
[9]
The Principal Applicant refers to his personal
statement which explained the reason for proposing his course of study, which
is to retrain in an advanced course in a field in which he had not worked since
getting his degree. He also says that the Applicants erroneously requested a
work permit for his spouse rather than a temporary resident visa and submits
that it was unfair for the Officer not to have given them an opportunity to
clarify this as well as his mother’s status in Canada.
B.
The Respondent’s Position
[10]
The Respondent argues that the onus was on the
Applicants to demonstrate that they would leave Canada at the end of the period
for which they were authorized to stay. The Applicants’ arguments amount to
taking issue with the weight given to the various factors and evidence by the
Officer, in a circumstance where the Officer’s decision should be afforded a
high level of deference.
[11]
The Respondent’s position is that, with the
evidence indicating his mother and sister were in Canada and that his wife
would be accompanying him, the Officer reasonably found the Principal Applicant
to have strong ties to Canada and limited remaining ties to Nigeria. On the
subject of the Principal Applicant’s assets, the Respondent notes that the
value of his real estate was not provided and, while the Officer did not
expressly discuss the value of the Principal Applicant’s stocks, the Officer is
not required to refer to every piece of evidence. The Respondent also submits
that, in the personal statement provided with his application, the Principal
Applicant did not explain why he wanted to complete a program similar to, and at
a lower level than, the one he had already completed in Nigeria.
[12]
Responding to the Applicants’ other arguments, the
Respondent submits that the Principal Applicant’s employer’s knowledge of his
study plans is relevant to his application for a study permit, as it could have
been a positive factor if the employer had been aware, and submits that his
travel history was not a significant or determinative factor in the decision.
V.
Analysis
[13]
The Officer’s June 1, 2015 letter to the
Principal Applicant, which denied his application for a study permit, conveys
that the denial is based on the Officer not being satisfied that the Principal
Applicant would leave Canada at the end of his stay. While that letter recites
a number of factors considered by the Officer in reaching this decision, it is
apparent from the GCMS notes that the decision was based on a combination of
the Officer not being satisfied that the Principal Applicant was a genuine
student and not being satisfied that he had sufficient ties to Nigeria to
compel a return home. As explained below, it is the Officer’s findings on the
Principal Applicant’s ties to Nigeria that the Court finds to be unreasonable
and which result in this application for judicial review being allowed. The
Officer considers both the Principal Applicant’s family ties and his financial
and professional ties. In both areas, I find that the Officer’s decision does
not demonstrate sufficient regard to the evidence to be transparent and
intelligible.
[14]
On the subject of family ties, I do not fault
the Officer for concluding that the Principal Applicant’s mother resides in
Canada. While that may not be accurate, as the Respondent did not contest the
Applicants’ assertion that the mother was just visiting Canada, the Officer was
making the decision based on the information available, which included the
Family Information form completed by the Principal Applicant that gave his
mother’s present address as that of his sister in Ontario. However, even operating
with the understanding that the mother lived in Ontario, my conclusion is that
the combination of the Officer’s finding that the Principal Applicant has
strong family ties to Canada and the finding that he has limited remaining
family ties to his home country cannot be reconciled with the evidence.
[15]
The evidence before the Officer on this issue
appears on the Family Information form. This document refers to the Principal
Applicant’s mother and one sister having addresses in Ontario, his father and
three siblings having addresses in Nigeria, and (although the relationships are
not expressly provided) apparently two siblings living in the United Kingdom
and two living in the Unites States. While the picture is one of a family that
is somewhat dispersed, it does not support the combined conclusion of strong
family ties to Canada and limited remaining family ties to Nigeria. I
appreciate the Respondent’s point that the Principal Applicant’s spouse should
be taken into account, as the GCMS notes refer to her intention to accompany
him to Canada immediately before stating there are limited remaining ties to
Nigeria. However, this still leaves one of his parents and three of his
siblings in Nigeria.
[16]
The Officer then refers to the mother and sister
residing in Canada and states the conclusion that the Principal Applicant has
strong family ties to Canada. It is not clear how the Officer concludes that
the presence of one parent and one sibling in Canada results in strong family
ties to this country, while the presence of the other parent and three siblings
in Nigeria results in limited family ties in the home country. It may be that,
as argued by the Applicants, the Officer did not advert to the evidence.
Regardless, in the absence of a transparent and intelligible analysis by the
Officer supporting these findings, I conclude them to be unreasonable.
[17]
The Officer’s finding that the Principal
Applicant has limited financial ties to Nigeria suffers from the same
difficulty. The GCMS notes refer to the Principal Applicant’s pay slips showing
limited income and his bank statements showing limited funds. I find no fault
with those particular conclusions. However, the Applicants point out that the
decision demonstrates no consideration of the Principal Applicant’s stock or
real estate holdings. The Respondent argues that the Officer is not required to
refer to every piece of evidence. However, when a decision-maker is silent on
evidence pointing to the opposite of its conclusion, this supports an inference
that the contradictory evidence was overlooked (see Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425).
[18]
The evidence demonstrates stock holding with a
value exceeding 4.1 million Nigerian naira. While there is no evidence before
the Court on the applicable exchange rate, the Applicants’ written submissions
refer to this being close to 30,000 Canadian dollars, and I am comfortable
taking judicial notice that the exchange rate is such that this is the correct
order of magnitude. More important than the absolute value of the stock is the
comparison to the Principal Applicant’s bank statements, which demonstrate
accounts with balances in the range of 28,000 and 15,000 Nigerian naira. The
stock holdings are a couple of orders of magnitude larger than these figures. The
Officer makes no mention of the stock holdings or the real estate. The Respondent
correctly points out that there is no evidence as to the value of the real
estate. However, with the stocks alone appearing to have a value so significantly
higher than the bank accounts, the Officer’s finding of limited financial ties
to Nigeria, which expressly refers to the latter and makes no mention of the
former, cannot be considered reasonable.
[19]
In my view, the findings related to the
Principal Applicant’s family and financial ties are sufficiently fundamental to
the Officer’s decision as to make the decision unreasonable and require the
Court to set it aside and return the application to be considered by another
visa officer. I emphasize that I am not making any finding as to whether the
Principal Applicant’s family and financial ties to Nigeria should be regarded
as sufficient to compel return to his home country. That is a decision to be
made by the visa officer who re-determines the application.
[20]
The Applicants proposed for certification a
question related to the correct manner of completing forms associated with an
application for a study permit, when the applicant has a relative who is
staying in Canada on a temporary basis. The Respondent opposed certification,
taking the position that the question proposed by the Applicant is not of
general importance, as it arises out the particular circumstances of the present
case. As the Applicants have prevailed on this application, such that this
question would not be dispositive of an appeal, no question will be certified.
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