Docket: IMM-5599-15
Citation:
2016 FC 756
Ottawa, Ontario, July 5, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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OLENA OLIINYK
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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.
Introduction
[1]
This is an application for judicial review of
the December 3, 2015 decision of a Visa Officer denying the Applicant a
temporary visitor’s visa. The Officer determined that the Applicant did not
have sufficient ties to her home country of Ukraine to ensure that she would
leave Canada at the end of her stay.
II.
Background
[2]
The Applicant, Olena Oliinyk, is a citizen of
Ukraine. She is self-employed as a tutor and resides in Ukraine with her young
son and parents.
[3]
In April of 2015, the Applicant married Mykhailo
Oliinyk. Mr. Oliinyk is a Canadian permanent resident, having been sponsored in
2012 by his then spouse (they divorced in 2014) after arriving in Canada in
2009 on a visitor’s visa.
[4]
Subsequent to their marriage, Mr. Oliinyk
invited the Applicant to visit him in Canada from November 20, 2015 to December
28, 2015, to celebrate his 35th birthday and the Christmas holidays.
[5]
The Officer held that the Applicant had not
satisfied him she would leave Canada at the end of her stay as a temporary
resident, as required by subsection 20(1)(b) and subsection 22(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act]. As a result, the
Officer concluded that the Applicant should not be granted a visitor’s visa to
come to Canada.
[6]
The Officer held that the Applicant possessed
weak ties to Ukraine, noting that she was self-employed. Moreover, she had not
provided her full employment history for the past 10 years as required, which raised
concerns she was purposely withholding relevant information.
[7]
The Officer further noted that Mr. Oliinyk had
arrived in Canada through “irregular migration”, and that a spousal sponsorship
application had not yet been made to bring the Applicant to Canada, despite the
couple having been married since April of 2015.
[8]
In conclusion, the Officer was not satisfied
that the Applicant was a genuine visitor to Canada or that she had demonstrated
sufficient ties to Ukraine to ensure her return there at the end of her visit.
III.
Issue
[9]
The only issue is whether the Officer’s decision
is reasonable.
IV.
Standard of Review
[10]
The standard of review of the Officer’s decision
is reasonableness: the decision is discretionary, and is therefore entitled to
significant deference (Zhou v Canada (Minister of Citizenship and
Immigration), 2013 FC 465 at para 8 [Zhou]).
V.
Analysis
[11]
The Respondent submits it was not unreasonable
for the Officer to consider the immigration history of the Applicant’s husband,
or by characterizing that history as “irregular”, given that Mr. Oliinyk did
not apply for permanent residency from abroad, as is regularly required.
[12]
Moreover, it is the Respondent’s position that
the Officer did not err by failing to consider that the Applicant’s husband is
ineligible to sponsor her. It is the Applicant’s responsibility to provide the
Officer with all relevant information to her application, and the Officer is
not required to investigate why an applicant has not been sponsored by his or
her spouse.
[13]
Finally, the Respondent argues it was reasonable
for the Officer to find that the Applicant has weak ties to Ukraine: she owns
no property in the Ukraine and has a highly mobile job. The fact that the
Applicant has a son and parents in Ukraine is not, on its own, sufficient to
demonstrate a strong tie, as the son can always be brought to Canada at a later
date.
[14]
Given the deferential nature of the Officer’s
decision, the Court should only intervene where the decision is not made in
good faith, in accordance with the principles of natural justice, or fails to
take into account relevant considerations (Maple Lodge Farms Ltd v Canada,
[1982] 2 S.C.R. 2 at para 7). In other words, only if the decision falls outside
the “range of possible, acceptable outcomes which are
defensible in respect of the facts and the law” will the Court’s
intervention be warranted (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47).
[15]
However, while an officer is presumed to have
reviewed all the evidence and need not mention every piece of evidence in his
or her reasons (Zhou, above, at para 20), an officer’s responsibility to
analyse and comment on a specific piece of evidence increases in accordance
with the importance of that evidence and the degree to which it contradicts the
decision-maker’s findings (Cepeda-Gutierrez v Canada (Minister of
Citizenship & Immigration) (1998), 157 FTR 35 at paras 14-17 [Cepeda-Gutierrez]).
[16]
In this case, I find that the Officer’s decision
was unreasonable.
[17]
The Officer made factual findings at odds with
evidence that was not discussed in his reasons. He did not mention at any point
in the reasons evidence establishing that the Applicant’s minor son and parents
remained in Ukraine while she came to Canada to visit her husband. This
evidence directly contradicts the Officer’s conclusion that the Applicant
possesses only weak ties to Ukraine: a mother’s ties to her only son, a minor
child, at the very least calls into question the Officer’s finding. The lack of
analysis, or even reference to such evidence demonstrates a failure to properly
engage in the fact-finding process, and entitles the Court to infer that
finding was made “without regard to the evidence”
(Delios v Canada (Attorney General), 2015 FCA 117 at para 27; Cepeda-Gutierrez,
above, at para 14).
[18]
By way of affidavit, the Officer attempted to
clarify his decision, stating that though he was aware of the existence of the
Applicant’s son, that fact was not sufficient to convince him that the
Applicant would return to Ukraine, as her son may always be brought to Canada
at a later date. This statement is an impermissible attempt by the Officer to
bolster his decision after the fact, and I attribute it no weight. As stated by
the Federal Court of Appeal in Sapru v Canada (Minister of Citizenship and
Immigration), 2011 FCA 35 at paragraphs 52-53:
52 With respect to the affidavit of the
medical officer, in my view the Judge's reliance upon this affidavit was
problematic in two respects. First, the information contained in the affidavit
was not before the immigration officer when he was assessing the reasonableness
of the medical officer's opinion. It was the duty of the immigration officer to
assess the reasonableness of the medical opinion. Second, as candidly
acknowledged by counsel for the Minister in oral argument, an affidavit cannot
be used to bolster the reasons of a decision-maker on judicial review. In this
Court, Justice Pelletier wrote for the majority in Sellathurai v. Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FCA 255:
45 The application judge may have
been lead to that conclusion by the nature of the affidavit filed by the
Minister's delegate. While the letter setting out the reasons for the refusal
of Mr. Sellathurai's request deals only with the evidence of the legitimacy of
the source of the seized funds, the Minister's delegate filed an affidavit
in which he restated and reviewed the grounds for suspicion identified by the
customs officer, and indicated why he believed they remained unanswered. In my
view, this form of affidavit is inappropriate and ought not to have been given
any weight at all.
46 The judges of the Federal Court
have previously stated that a tribunal or a decision-maker cannot improve upon
the reasons given to the applicant by means of the affidavit filed in the
judicial review proceedings. In Simmonds v. Canada (Minister of National
Revenue), 2006 FC 130, 289 F.T.R. 15, Dawson J. wrote at paragraph 22 of
her reasons:
I observe the transparency in
decision-making is not promoted by allowing decision-makers to supplement their
reasons after the fact in affidavits.
47 Any other approach to this issue
allows tribunals to remedy a defect in their decision by filing further and
better reasons in the form of an affidavit. In those circumstances, an
applicant for judicial review is being asked to hit a moving target.
[emphasis added]
53 No weight
should have been given to the affidavit of the medical officer to the extent
the officer sought to explain or bolster her reasons.
[Emphasis in
original]
[19]
Though this above error in the Officer’s
decision alone is sufficient to grant this application, I also find that the
Officer made other findings, which further add to the unreasonableness of the
decision.
[20]
Namely, the Officer placed weight on the fact
that the Applicant was not yet sponsored by her husband by way of spousal
sponsorship. This is unreasonable given the facts before the Officer, which indicated
that the Applicant’s husband is prohibited from sponsoring her until 2017,
because he himself gained permanent residency as a result of a spousal
sponsorship.
[21]
The Officer’s failure to consider, let alone
even mention, evidence directly contradictory to his finding that the Applicant
had weak ties to Ukraine is a reviewable error that goes to the very heart of
the decision to refuse the Applicant a temporary visitor’s visa. Accordingly, I
would allow the application.
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