Docket: IMM-4153-15
Citation:
2016 FC 690
Ottawa, Ontario, June 20, 2016
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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YULIYA SOLOPOVA
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Applicant
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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
I.
Overview
[1]
The applicant, Ms. Yuliya Solopova, is a
Ukrainian citizen currently residing in Spain. She lives with her common law
partner, a citizen of the United Kingdom, and their four-year-old son. In the summer of 2015, Ms. Solopova applied to Citizenship and
Immigration Canada [CIC] for a study permit, as she had been admitted to the triOS
College in Mississauga, Ontario in the Physiotherapy/Occupational Therapy
Assistant program. Her application for a study permit was refused in June 2015 by
a visa officer [the Officer] at the Embassy of Canada
in Paris, France, as the Officer was not convinced she
would leave Canada at the end of her stay. Ms. Solopova reapplied for a study
permit the following month and it was also refused for the same reasons.
[2]
Ms. Solopova has filed an application for
judicial review of the Officer’s decision dated July 27, 2015. She argues that the Officer’s decision is unreasonable because it was based on
findings of fact unsupported by the evidence and the Officer ignored or failed
to consider relevant evidence. Ms. Solopova also contends that the Officer’s
reasons are inadequate since they do not explain how the Officer reached the
conclusion that Ms. Solopova does not intend to go back to her country of
origin after her studies. She further submits that the Officer breached his duty
of procedural fairness by failing to allow her to respond to his concerns. She
asks this Court to quash the decision and to send it back for redetermination
by a different visa officer.
[3]
This application raises two issues: 1) was the
Officer’s decision denying the study permit sought by Ms. Solopova reasonable;
2) did the Officer err by failing to ask for additional explanations or to call
Ms. Solopova for an interview before deciding on her application.
[4]
Having considered the evidence before the
Officer and the applicable law, I can find no basis for overturning the
Officer’s decision. The decision was responsive to the evidence and the outcome
was defensible based on the facts and the law. Therefore, I must dismiss Ms. Solopova’s
application for judicial review.
II.
Background
A.
The Officer’s decision
[5]
The Officer’s decision is brief.
[6]
The Officer refused Ms. Solopova’s application
for a study permit because he was not satisfied that Ms. Solopova would leave
Canada at the end of her stay. In reaching his decision, he considered several
factors which he then checked off from the standard form used by CIC. These
were: Ms. Solopova’s immigration status in her country of residence, her family
ties in Canada and in her country of residence, the purpose of her visit, and
her current employment situation.
[7]
The Officer’s Global Case Management System
(GCMS) notes dated July 24, 2015 provide further light on the reasons for the
Officer’s refusal. It is useful to reproduce them in their
entirety. They state the following:
Couple:
Ukrainian 35 yr old female and older (57 yr old) UK national CL partner –
currently residing in Spain. She’s asking for an SP and he an open WP. 4 yr old
child to accompany. Previous refusal noted. Rep’s submissions on previous
refusal noted. Given ages of clients and previous academic history, appear - at
least as far as the female is concerned – to be intending immigrants. The rep’s
submissions do not make sense. States the main reason family is choosing Cda
over UK is because of the cost of the physiotherapy program – yet states that
UK CL partner has some 400 000 euros in savings. Not satisfied of clients’
intentions/decision to return to studies and no evidence that female has ties
to Spain, Ukraine, UK or any country which would motivate a departure from Cda.
[8]
The GCMS notes dated July 3, 2015 provide additional
background information on Ms. Solopova, indicating that she holds long-term
residence status in Spain, set to expire in February 2020, and that she works
as an office manager.
B.
The relevant provisions
[9]
The relevant provision of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] is subsection 22(2), which
provides that “an intention by a foreign national to
become a permanent resident does not preclude them from becoming a temporary
resident if the officer is satisfied that they will leave Canada by the end of
the period authorized for their stay.”
[10]
Paragraph 216(1)(b) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [the Regulations] further
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 an applicant for a study permit bears the burden of satisfying the
visa officer that he or she will not remain in Canada once the visa has
expired (Zuo v Canada (Citizenship and Immigration), 2007 FC 88 [Zuo]
at para 12; Zhang v Canada (Minister of Citizenship and Immigration),
2003 FC 1493 [Zhang] at para 7).
[11]
Accordingly, when considering a study permit
application, the visa officer must determine whether the applicant is likely to
return to his or her country of origin after the studies (Akomolafe
v Canada (Citizenship and Immigration), 2016 FC 472 [Akomolafe] at para
12; Zhang at para 8; Guo v Canada (Minister of Citizenship &
Immigration), 2001 FCT 1353 at para 11). 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).
C.
The standard of review
[12]
There is no dispute that, when reviewing a visa officer’s factual assessment of an application
for a student visa and the officer’s belief that an applicant will not leave
Canada at the end of his or her stay, the standard of review is reasonableness
(Akomolafe at para 9; Li v Canada (Citizenship and Immigration), 2008
FC 1284 [Li] at para 15; Bondoc v Canada (Citizenship and
Immigration), 2008 FC 842 at para 6). Such a decision by a visa officer is “an administrative decision
made in the exercise of a discretionary power” (My Hong v Canada
(Citizenship and Immigration), 2011 FC 463 [My Hong] at para 10). As
it is a discretionary decision based on factual findings, it is entitled to
considerable deference in view of the visa officer’s special expertise [and
experience] (Obeng v Canada (Minister of Citizenship and Immigration),
2008 FC 754 at para 21).
[13]
Based on this standard of review, the Court must
ensure that the visa officer’s decision meets the test of clarity, precision
and intelligibility and that it is supported by acceptable evidence that can be
justified in fact and in law. The standard of reasonableness not only commands
that the decision at issue falls within a range of possible, acceptable
outcomes defensible in respect of the facts and law, but it also requires the
existence of justification, transparency and intelligibility within the
decision-making process (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47).
[14]
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 [Newfoundland
Nurses] at para 14).
[15]
Turning to the principles
of natural justice and procedural fairness issues, they are to be reviewed on
the basis of a correctness standard of review (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43; Sketchley v Canada
(Attorney General), 2005 FCA 404 at para 53; Li at para 17).
III.
Analysis
A.
Was the Officer’s decision reasonable?
[16]
Ms. Solopova argues that the Officer made
several erroneous findings of fact. First, she claims that the Officer’s
statements on her lack of ties to Spain were based on vague and irrelevant
facts that misconstrued the evidence. Ms. Solopova contends that her temporary
status of long duration in Spain does not imply that her ties with that country
are weak. On the contrary, Ms. Solopova and her partner have significant
financial assets in Spain and they are both gainfully employed there, two
factors ignored by the Officer.
[17]
Ms. Solopova further submits that the Officer
unreasonably used Ms. Solopova’s lack of family connections as an indication
that she would likely remain past her intended status in Canada, whereas her
absence of family ties in Canada should have instead lead to the opposite
conclusion. Furthermore, Ms. Solopova complains that the Officer failed to
consider her twelve years of residence and work in Spain, illustrating her
connections to that country.
[18]
The Officer’s reasons also did not adequately
address Ms. Solopova’s submissions, namely a letter prepared by her
representative stating that she has financial assets and real property in Spain,
that an educational program in Spain similar to what she applied for in Canada would
require taking several exams and would be financially onerous, and that the
program in Canada would allow her to improve her English.
[19]
Ms. Solopova also argues that the Officer’s
reasons for rejecting her application do not provide any substantive analysis
or comments as to why her evidence was rejected, merely stating “previous refusal noted” and the “rep’s submissions on previous refusal noted.” This
does not constitute adequate reasons, says Ms. Solopova, and the Officer should
have at least considered and responded to new evidence that specifically
addressed the concerns raised in the first decision (Dhillon v Canada
(Minister of Citizenship and Immigration), 2003 FC 1446 at paras 5-8).
[20]
Ms. Solopova finally submits that in assessing
whether she would leave Canada at the end of her studies, the Officer failed to
consider her dual intent pursuant to subsection 22(2) of the IRPA. She contends
that a person may have the dual intent of immigrating and of abiding by the
immigration law respecting a temporary entry. Pursuant to that provision, the
Officer must be satisfied that applicants will not remain illegally in Canada
if they fail to meet the requirements and their application for permanent
residence is rejected. Therefore, even if the Officer had concerns about Ms.
Solopova’s intention of remaining in Canada permanently, such intention was not
a barrier to her entry as a temporary student provided the Officer was
satisfied that she would leave at the end of her authorized stay. Ms. Solopova
also argues that her compliance with Spanish immigration laws weighs in her
favour as “previous immigration encounters are good
indicators of an applicant’s likelihood of future compliance” (Momi v
Canada (Citizenship and Immigration), 2013 FC 162 at para 20).
[21]
I am not persuaded by any of Ms. Solopova’s
submissions and arguments.
[22]
The onus was on Ms. Solopova to establish her
case on a balance of probabilities and to demonstrate that she would leave
Canada at the end of her authorized period. 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 IRPA and the Regulations (Zuo at
para 11). Ms. Solopova’s arguments in this judicial
review simply put forth alternative explanations for the Officer’s findings and
amount to taking issue with the weight given to the factors and evidence by the
Officer. On judicial review, it is not the role of this Court to reweigh the
evidence.
[23]
When the standard of review before this Court is
that of reasonableness, it is not sufficient to put forward alternate
explanations, even ones that are equally reasonable. What Ms. Solopova had to
do to succeed in her application was to point to a conclusion that was outside
the scope of reasonableness. She failed to do that.
[24]
Further to a review of the record, I am not convinced that the Officer ignored or misconstrued any
evidence in assessing Ms. Solopova’s application. For example, it was reasonably
open to the Officer to find that Ms. Solopova had provided insufficient evidence
of ties to Spain, the United Kingdom, the Ukraine or any other country that
would motivate her to leave Canada when required.
[25]
The Officer also reasonably noted that in
addition to having a prior study permit refusal, Ms. Solopova’s previous
academic history did not accord with her intended field of study in Canada. In
the circumstances, it was open for the Officer to find that Ms. Solopova was
not a genuine student, seeking now to come to Canada to obtain a diploma as a
physiotherapy assistant. It was also within the Officer’s expertise to weigh
the evidence of Ms. Solopova’s spouse’s financial situation and to come to a
conclusion different from the one proffered by Ms. Solopova as to why she was
choosing Canada over the United Kingdom or Spain.
[26]
The Officer’s GCMS notes mention the relevant
evidence contained in the certified tribunal record. I am satisfied that this evidence
does not reflect the existence of strong ties to Spain, apart from a large sum
of money (approximately 400 000 euros in savings) held by Ms. Solopova’s
partner. Contrary to Ms. Solopova’s assertion, there is no evidence that Ms.
Solopova and her partner own any real estate in Spain.
[27]
Ms. Solopova claimed that she justified her
choice of Canada on the basis of cost. However, I note that the programs used
in her comparison were university degree programs whereas Ms. Solopova’s chosen
program in Canada was for a diploma as a physical or occupational therapy
assistant. Given this fact, in conjunction with Ms. Solopova’s previous
education history and her spouse’s financial situation, it was open to the
Officer to find that this financial element was not adequate to explain why Ms.
Solopova had opted for Canada.
[28]
There is also no basis for an inference that the
Officer ignored material evidence that squarely contradicted his conclusions (Canada
(Citizenship and Immigration) v Abdulghafoor, 2015 FC 1020 at para 22). As I
stated in Mirmahaleh v Canada (Citizenship and Immigration), 2015 FC
1085 at para 25, a tribunal is presumed to have considered all the evidence and
is not required to refer to each constituent element of that evidence (Newfoundland
Nurses at para 16). Failure to refer to every piece of evidence does not
mean that all the evidence was not considered (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration) (1998), 157 FTR 35 (FCTD) at
paras 16-17). It is only when a tribunal is silent on evidence clearly pointing
to the opposite conclusion that the Court may intervene and infer that the
tribunal overlooked the contradictory evidence when making its finding of fact.
This is not the case here.
[29]
Turning to Ms. Solopova’s arguments on dual
intent, they have no merit as the Officer did not assess Ms. Solopova’s
intention to establish permanent residence. The question in this case was
whether Ms. Solopova could satisfy the precondition of such dual intent, namely
that she would leave at the end of her studies. The Officer found she did not.
He made his decision based on Ms. Solopova’s lack of evidence to show ties to
the United Kingdom, Ukraine, Spain or any other country, her previous academic
history, her previous permit refusal and her spouse’s request for an open work
permit (Odewole v Canada (Citizenship and Immigration), 2008 FC 697 at
para 16). As Ms. Solopova failed to convince the Officer on that premise, her
dual intent did not become a relevant factor to consider for the Officer.
[30]
It is true that the Federal Court has confirmed
on numerous occasions that “a person may have the dual
intent of immigrating and of abiding by the immigration law respecting
temporary entry” (Kachmazov v Canada (Citizenship and Immigration), 2009
FC 53 at para 15). The two intentions are complementary, not contradictory (Loveridge
v Canada (Citizenship and Immigration), 2011 FC 694 [Loveridge] at
para 18). However, the burden lies on the applicant to first demonstrate that he
or she will leave at the end of their study period (Loveridge at para 20,
Wang v Canada (Citizenship and Immigration), 2009 FC 619 at para
14). This threshold requirement has not been met in this case.
[31]
With respect to the sufficiency of reasons, it
is trite law that the adequacy of reasons is no longer a stand-alone basis for
quashing a decision. In Newfoundland Nurses, the Supreme Court provided guidance on how to approach situations
where decision-makers provide brief or limited reasons.
Reasons need not be fulsome or perfect, and need not address all of the
evidence or arguments put forward by a party or in the record. It is sufficient if the reasons permit the Court to understand why
the decision was made and determine whether the conclusion falls within the
range of possible acceptable outcomes (Newfoundland Nurses at para 16).
The reasons are to be read as a whole, in conjunction
with the record, in order to determine whether they provide the justification,
transparency and intelligibility required of a reasonable decision (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53; Construction Labour Relations
v Driver Iron Inc, 2012 SCC 65 at para 3; Dunsmuir at para 47).
[32]
Reasonableness,
not perfection, is the standard. Even where the reasons
for the decision are brief, or poorly written, this Court should defer to the
decision-maker’s weighing of the evidence and credibility determinations, as
long as the Court is able to understand why the decision was made. I add that a
visa officer’s duty to provide reasons when rejecting a temporary resident is
minimal and falls at the low end of the spectrum.
[33]
When the
decision and the record (including the GCMS notes) are all considered, I conclude that the Officer’s reasons are adequate and that his finding
on Ms. Solopova’s lack of a genuine intention to leave Canada at the end of her
studies is reasonable. The role of this 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).
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). I am of the view that, in this case, the Officer’s decision is transparent and intelligible and clearly falls within such a range.
B.
Did the Officer err by failing to ask for
additional explanations or to call Ms. Solopova for an interview?
[34]
Ms. Solopova also argues that the Officer made
an adverse credibility finding against her, discounting her submissions that
she would leave Canada and drawing a negative inference without putting his
concerns before her. By doing so, Ms. Solopova claims that the Officer breached
his obligation of procedural fairness in not giving her an opportunity to
provide additional information or in not calling her to an interview.
[35]
More specifically, Ms. Solopova submits that she
had no way of knowing that the Officer would draw negative inferences from the
fact that she had a temporary status of long duration in Spain. She contends
that, when a visa officer “forms a subjective opinion
that the applicant had no way of knowing would be used in adverse way,” procedural
fairness is owed (Campbell Hara v Canada (Citizenship and Immigration),
2009 FC 263 [Hara] at para 23). Had the Officer not viewed Ms.
Solopova’s evidence through such a negative lens and had the Officer allowed
her the opportunity to disabuse him of those concerns, Ms. Solopova submits
that a different conclusion would likely have been reached.
[36]
I disagree.
[37]
A visa officer’s duty on an application for a
study permit is relaxed, and Ms. Solopova has failed to establish any unfairness
on the part of the Officer. The Officer had no duty to call Ms. Solopova for an
interview to advise her of any concerns or to put her on notice that a negative
decision would be issued. The onus was instead on Ms. Solopova to satisfy the
Officer at first instance that a study permit should be issued.
[38]
It is well established that a visa officer has
no legal obligation to seek to clarify a deficient application, to reach out
and make the applicant’s case, to apprise an applicant of concerns relating to
whether the requirements set out in the legislation have been met, or to
provide the applicant with a running score at every step of the application
process (Sharma v Canada (Citizenship and Immigration), 2009 FC 786 at
para 8; Fernandez v Canada (Minister of Citizenship and Immigration),
[1999] FCJ No 994 (QL) at para 13; Lam v Canada (Minister of Citizenship and
Immigration) (1998), 152 FTR 316 (FCTD) at para 4). To impose such an
obligation on a visa officer would be akin to giving advance notice of a
negative decision, an obligation that has been expressly rejected by this Court
on many occasions (Ahmed v Canada (Minister of Citizenship and Immigration),
[1997] FCJ No 940 (QL) at para 8; Dhillon v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 574 (QL) at paras 3-4). There is no
requirement for a visa officer to seek clarification, or to reach out and make
the applicant's case (Mazumder v Canada (Citizenship and Immigration),
2005 FC 444 at para 14; Kumari v Canada (Minister of Citizenship and
Immigration), 2003 FC 1424 at para 7).
[39]
I am therefore of the view that, in the
circumstances of this case, the Officer was not required to conduct an
interview or inform Ms. Solopova of deficiencies in her application. Contrary to Ms. Solopova’s submissions, this is not a situation where
she had a right to respond to the Officer’s concerns. This case is
distinguishable from Hara or Li, relied on by Ms. Solopova. 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 the present case, the Officer relied on numerous pieces of
evidence to support his conclusion on Ms. Solopova’s intentions.
[40]
Ms. Solopova claims that, since credibility was
an issue, an oral hearing should have been conducted by the Officer (Hamadi
v Canada (Minister of Citizenship and Immigration), 2011 FC 317 at para 14;
Duka v Canada (Minister of Citizenship and Immigration), 2010 FC 1071 at
para 13). However, Ms. Solopova conflates an adverse finding of credibility
with a finding of insufficient evidence. I dealt with this matter in Ibabu v
Canada (Minister of Citizenship and Immigration), 2015 FC 1068, where I
stated the following at paragraph 35:
[35] An
adverse finding of credibility is different from a finding of insufficient
evidence or an applicant’s failure to meet his or her burden of proof. As
stated by the Court in Gao v. Canada (Minister of Citizenship and
Immigration), 2014 FC 59, at para 32, and reaffirmed in Herman v Canada
(Minister of Citizenship and Immigration), 2010 FC 629 at para 17, “it
cannot be assumed that in cases where an Officer finds that the evidence does
not establish the applicant's claim, that the Officer has not believed the
applicant”. This was reiterated in a different way in Ferguson v Canada
(Minister of Citizenship and Immigration), 2008 FC 1067 at para 23, where
Justice Zinn stated that while an applicant may meet the evidentiary burden
because evidence of each essential fact has been presented, he may not meet the
legal burden because the evidence presented does not prove the facts required
on the balance of probabilities.
(Emphasis added)
[41]
The burden was on Ms. Solopova to adduce
sufficient evidence that she would not overstay in Canada. As stated by Mr.
Justice Boivin in My Hong at para 31, applications for student visa are
to be analyzed on a case-by-case basis and a visa officer does not have to
supplement the applicant’s evidence when it is lacking. The onus is on the
applicant to provide the visa officer with all the relevant information and
complete documentation in order to satisfy the officer that all statutory
requirements are met. This is what Ms. Solopova neglected to do.
[42]
There was therefore no breach of procedural
fairness in this case. The duty of fairness does simply oblige visa officers to
provide sufficiently clear, precise and intelligible reasons, and I am
satisfied that the Officer met that standard.
IV.
Conclusion
[43]
The Officer’s refusal of Ms. Solopova’s application
for a study permit represented a reasonable outcome based on the law and the
evidence before the Officer. On a standard of reasonableness, it suffices if
the decision subject to judicial review falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law. This
is the case here. In addition, the Officer handled Ms. Solopova’s application correctly
and there was no breach of procedural fairness. Therefore, I must dismiss Ms.
Solopova’s application for judicial review.
[44]
Neither party has proposed a question of general
importance for me to certify, and I agree there is none.
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