Docket: IMM-4347-15
Citation:
2016 FC 472
Ottawa, Ontario, April 27, 2016
PRESENT: The
Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
OLANREWAJU
SOLOMON AKOMOLAFE
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to section 18.1 of the Federal Courts Act, RS 1985 c F-7, in
respect of a decision made by a visa officer (the Officer) at the Canadian High
Commissioner’s office in Accra, Ghana, on September 4, 2015, refusing the
Applicant a student visa.
II.
Background
[2]
The Applicant is a citizen of Nigeria. He is
married with two children and has unsuccessfully applied for a Canadian study
permit three times since February 2015.
[3]
The Applicant was 37 years old at the time he
made the third request for a student visa with the intention of attending a two
year program in global business management at Centennial College in Toronto.
[4]
A standard form outlines the Officer’s reasons
for refusing the application:
[x] You have not satisfied me that you would
leave Canada at the end of your stay. In reaching this decision, I considered
several factors, including:
…
[x] purpose of visit
…
[x] Other reasons:
Source of funds is unclear.
[5]
The Officer’s Global Case Management System
(GCMS) notes provide greater detail for the reasons for refusal:
Sponsor is third party (employer). No
evidence of funds provided, only a letter. Short term fixed deposit shown in
the amount of 8M Naira (approx. $52K) but source of funds appears to be Molamus
[sic] General Enterprises not Bolbod, his employer. Therefore source of funds
unclear. Travel to England x 3 for 5-6 months at a time for holiday. Seems odd
to go on holiday for that period of time without having to resort to work. PPT
pages not provided to verify actual entry and exit dates. Based on the
info/docs provided – PA has a gap in education for 14 years, explanation for
why taking international studies at this juncture in his life is vague (e.g.,
specific benefits to be accrued for current position not sufficiently
articulated) and source of funds for studies is not clear. I am not satisfied
that intent is genuine and that PA is not primarily seeking to gain access to
Canada.
[6]
The Applicant argues that the Officer’s decision
regarding the source of funding is based on findings of fact unsupported by
evidence, that the Officer’s inferences are unreasonable and that the Officer
ignored or failed to consider relevant evidence. The Applicant also contends
that the Officer’s reasons are inadequate since they do not explain how the
Officer reached the conclusion that the Applicant’s intent is not genuine nor
how the Officer came to the finding that the Applicant is primarily seeking to
gain access to Canada.
[7]
The Applicant further argues that the Officer
breached the duty of procedural fairness by failing to ask the Applicant to
respond to the Officer’s concerns regarding his trips to England.
III.
Issue and Standard of Review
[8]
The issue to be determined in this case is
whether the Officer committed a reviewable error as contemplated by section
18.1(4) of the Federal Courts Act.
[9]
When reviewing an officer’s factual assessment
of an applicant’s application for a student visa and belief that an applicant
will not leave Canada at the end of his or her stay, the standard of review is
reasonableness (Li v Canada (Citizenship and Immigration), 2008 FC 1284,
at para 14, 337 FTR 100 [Li]; Bondoc v Canada (Citizenship and
Immigration), 2008 FC 842, at para 6; Obot v Canada (Citizenship and
Immigration), 2012 FC 208, at para 12). The reasonableness standard also
applies in the assessment of the adequacy of reasons (Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, at para 14, [2011] 3 S.C.R. 708 [Newfoundland and Labrador Nurses'
Union].
[10]
Questions of procedural fairness are assessed on
the correctness standard (Li, at para 17).
IV.
Analysis
[11]
Paragraph 216(1)(b) of the Immigration and
Refugee Protection Regulation, SOR/2002-227 (the Regulations), requires
a study permit applicant to establish that he or she “will
leave Canada by the end of the period authorized for their stay.” Thus,
it is quite clear that the applicant bears the burden of satisfying the visa
officer that he or she will not remain in Canada once their visa has
expired (Zhang v Canada (Minister of Citizenship and Immigration), 2003
FC 1493, at para 7, 244 FTR 299 [Zhang]; Zuo v Canada (Citizenship
and Immigration), 2007 FC 88, at para 12 [Zuo]).
[12]
Therefore, when considering the study permit
application, the visa officer must determine whether the applicant is likely to
return to his or her country of origin after their studies (Zhang,
at para 8; Zheng v Canada (Minister of Citizenship & Immigration)
(2001), FCJ No 110, at para 16, 103 ACWS (3d) 163; Guo v Canada (Minister of
Citizenship & Immigration), 2001 FCT 1353, at para 11, 110 ACWS (3d)
724). This Court has taken the view that “[t]he visa
officer has wide discretion in assessing the evidence and coming to a decision.
However, the decision must be based on reasonable findings of fact” (Zhang,
at para 7).
[13]
Contrary to the Applicant’s submissions, the
Officer in this case did not ignore or misconstrue evidence that the Applicant
is able to personally finance his studies. Further to a review of the record, I
find that it was reasonably open for the Officer to find that the source of the
Applicant’s funds is unclear. A letter from the Applicant’s employer indicates
that it will financially support the Applicant’s family and studies while the
Applicant pursues the 2 year program. However, the letter is written in vague
terms and does not indicate how much money it will contribute to the
Applicant’s studies or to his family- if at all. Moreover, a letter drafted by
Applicant’s counsel, which was submitted to the Officer along with the
Applicant’s application, states that the Applicant has amassed enough savings
to fund his studies and that Molarms General Enterprises Ltd (Molarms) is one
of the factors contributing to his savings as it generates a minimum of $300,000.00
Naira on a monthly basis. The letter, along with the affidavit of the
Applicant’s wife, indicates that the wife is involved in a cake making, pastry
and decoration business that generates a monthly income of $70,000.00 Naira.
During the hearing, counsel for the Applicant clarified that the income
generated from the Applicant’s wife’s business is not part of the funds
allocated to fund the Applicant’s studies.
[14]
In support of the Applicant’s submissions to the
effect that he has enough savings to fund his studies, the Applicant notably
provided the Officer with a letter confirming that the Applicant has
$8,000,000.00 Naira registered in a fixed deposit account maturing on August
14, 2015, personal bank account statements, a receipt in the amount of $700,000.00
Naira representing payment of two years rent, a bank statement for Molarms, a
letter indicating that the Applicant has a pension fund in Nigeria, and a
letter from a surveyor valuating a bungalow at a market value of $7,400 180.00
Naira.
[15]
A closer examination of the documents provided
to the Officer reveals the following:
(1) The statement of account for Molarms does not provide any indication
that the company generates revenue;
(2) Other than deposits made from the Applicant’s employer, the
Applicant has made some cash deposits into his personal bank account. The
source of these funds remains unclear as the Applicant provided no explanation
or documents to support the source of the cash;
(3) The Applicant did not submit evidence supporting the allegations
that his wife’s business generates $70,000.00 Naira per month;
(4) There is no indication that the receipt for payment of rent was made
out to the Applicant in connection with the bungalow he purportedly owns. The
Applicant provided no evidence demonstrating that he owns a bungalow or that it
is rented out on a regular basis. Moreover, the bank statements submitted to
the Officer do not show any deposits made in relation to the rental of the
property; and,
(5) The Applicant provided no evidence of contributions made to his
pension fund or that the funds would be available to him during his studies in
Canada.
[16]
The evidence provided by the Applicant clearly
leaves open the question as to whether the source of the funds is the
Applicant’s employer or the Applicant’s personal savings. Moreover, the source
of funds emanating from the Applicant’s personal and corporate accounts remains
unclear. The Court reminds that a student visa applicant bears the burden of
providing a visa officer with all of the relevant information to satisfy the
officer that he or she meets the statutory requirements of the Immigration
and Refugee Protection Act, SC 2001 c 27 (the Act), and the Regulations (Zuo,
at para 11). The present case is distinguishable from Thiruguanasambandamurthy
v Canada (Citizenship and Immigration), 2012 FC 1518, cited by the
Applicant, since in this case, there is ample evidence on the record
supporting the Officer’s finding regarding the ambiguity surrounding the source
of the funds in question.
[17]
It was also reasonably open for the Officer to
question the Applicant’s holidays to England. While the Applicant argues
that there was no evidence before the Officer to the effect that the Applicant
had travelled to England for the period of time stated by the Officer, a review
of the record shows the opposite. The Applicant’s affidavit indicates that he
travelled to England on three occasions: November 12, 2008 to November 28,
2008, September 16, 2012 to September 23, 2012 and October 6, 2013 to November
7, 2013. The longest trip allegedly lasting approximately one month. However,
these dates do not correspond with the dates disclosed by the Applicant in the
schedule of his application for a study visa, which are October 2008 to April
2009, May 2012 to November 2012 and July 2013 to January 2014. The Respondent
pointed out during the hearing that the Officer’s concerns speak to the
Applicant’s credibility regarding his ability to gain revenue as the Officer’s
GCMS notes reveal the Officer’s concerns regarding the Applicant’s ability to support
his family while vacationing for six months at a time without resorting to
work. I agree.
[18]
On a related note, I am of the view that,
contrary to the Applicant’s submissions, this is not a case where the applicant
has a right to respond to the officer’s concerns. This case is distinguishable
from Li, relied on by the Applicant. In Li, the Court found that
the officer had a duty to give the Applicant an opportunity to respond to his
concerns since there was nothing in the Applicant's application, other than a
reference to the higher salary in Canada, to suggest the Applicant intended to
stay in Canada permanently (Li, at paras 37-38). In my view, in the case
at bar, the Applicant’s travel history was not a major concern for the
Officer, who denied the Applicant’s application based on the ambiguity of the
source of funds and on the lack of genuine intention.
[19]
In my view, the Officer’s reasons are adequate
and the finding that the Applicant lacked a genuine intention to study in
Canada is reasonable. As indicated in Newfoundland and Labrador Nurses'
Union, “the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (at para 14). While a gap in education may
not be a criteria under the Act, in my view, the gap is a relevant
consideration for assessing the genuineness of the Applicant’s intention to
study in Canada.
[20]
The Applicant explained in his “affidavit on purpose of visit” that he intends to
studying at Centennial College to develop his “analytical,
organizational and management skills” and that “studying
in Canada will also help me to develop the skill needed to deal with
ever-changing Business World.” He also explained in his affidavit to “show ties to the home country” that his intention is
to “achieve a long standing dream to studying abroad to
gain international relationship and position myself to harness the numerous
available potentials in Nigeria as related to my profession.”
[21]
These reasons are indeed vague and it was
entirely open to the Officer to make a finding to that effect. The Applicant is
a mature 37 year old adult who appears to be well-established at his place of
work as a head business analyst and personal assistant to the Managing
Director. He plans on returning to the same position following his studies with
the view of eventually establishing a consultancy firm to advise companies on
business development. I would presume that the Applicant already possesses the
requisite analytical, organization and management skills to carry out his
functions in his current position. It was therefore entirely open for the
Officer to find that the Applicant did not sufficiently articulate the specific
benefits to be accrued for his current position, thereby putting into question
the genuineness of the Applicant’s intention.
[22]
While the Applicant’s own affidavit evidence is
to the effect that he will leave Canada following the completion of his studies
to return to his family and his activities as a member of his parish, the role
of the Court is not to reweigh the evidence on record and substitute its own
conclusions to those of visa officers (Babu v Canada (Citizenship and
Immigration), 2013 FC 690, at paras 20-21). As stated by Justice Zinn in Babu,
“one cannot point to isolated facts or factors which
favoured the applicant to argue that the officer's assessment was unreasonable;
rather, the officer's determination under paragraph 216(1)(b) of the
Regulations must be examined in light of the whole record” (at para 20).
Moreover, as indicated above, visa officers have a wide discretion when
rendering decisions pursuant to paragraph 216(1)(b) of the Regulations. So long
as the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law, the decision will not be overturned
(Dunsmuir, at para 47). Ultimately, I am of the view that the Officer’s
decision falls within such a range.
[23]
Therefore, the application for judicial review
is dismissed. No question is certified.
Email this Content