Docket: IMM-5357-15
Citation:
2016 FC 764
Ottawa, Ontario, July 7, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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HENRY AMECHI
OGBUCHI
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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.
Background
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [the Act] of a decision [the Decision] by a visa officer [the Officer] at
the High Commission of Canada in Accra, Ghana refusing the Applicant’s
application for a temporary resident visa as a student.
[2]
The Applicant is a 42-year old citizen of
Nigeria. On February 13, 2015, he was accepted by the Manitoba Institute of
Trades and Technology [MITT] for a Post-Graduate Certificate in International
Business. The duration of expected study was from September 10, 2015 to August
26, 2016.
[3]
On July 14, 2015, the Applicant applied for a
study visa. On his application, the Applicant stated that he studied economics
and statistics at the University of Benin from 1995 to 1999 and that he has
been employed by subsidiaries of Chevron Nigeria Ltd. since 2004 – as a
Material/Warehouse Officer, a Senior Administrative/Project Management Officer,
and an Inventory and Procurement Analyst. He also noted that he had previously
applied for a student visa but was denied due to of a lack of evidence of his travel
history, employment status, and financial status.
[4]
On November 13, 2015, the Officer refused the
Applicant’s application for a study permit. The Officer was not satisfied that
the Applicant would leave at the end of his stay in Canada. The Officer noted that
“[i]n reaching this decision, I have considered several
factors, including… length of proposed stay in Canada [and] purpose of visit”.
[5]
In the GCMS notes that accompany the refusal
letter, the Officer provided the following reasons for the Decision:
After a review of the application and
supporting documents provided, program of study in Canada does not appear to be
consistent with previous education and employment history. Based on the
information provided, I am not satisfied that applicant is a genuine student
who intends to complete course of study in Canada. I am also not satisfied that
[the Applicant] would leave Canada at the end of an authorized stay given, in
part, educational and employment history. Application is refused.
II.
Analysis
[6]
The standard of review applicable to a visa
officer’s assessment of an application for a study permit is reasonableness (Akomolafe
v Canada (Citizenship and Immigration), 2016 FC 472 at para 9; Obot v
Canada (Citizenship and Immigration), 2012 FC 208 at para 12). As long as the
officer’s assessment is transparent, intelligible, justifiable, and falls
within a range of outcomes that are defensible in respect of the facts and the
law, this Court will not intervene (Dunsmuir v New Brunswick, 2008 SCC 9
at para 47).
[7]
The Applicant argues that he submitted evidence
that he has a wife and three minor children in Nigeria; more than twelve years
of gainful employment with an employer that expects him to return at the end of
his studies; and substantial cash savings that go well beyond those necessary
to fund his education and support his family. In light of all this, he submits
that the Officer’s assessment that the length of stay proposed by the Applicant
and the purpose of the visit weigh against granting a permit is arbitrary and
unsupported by the evidence.
[8]
The Applicant cites Zhang v Canada (Minister
of Citizenship and Immigration), 2003 FC 1493 at para 18 for the proposition
that “visa officer decisions have been cancelled
because the visa officer had not sufficiently taken into account the ties of
family which bound the applicant to their home country”. The Applicant
also cites Zuo v Canada (Citizenship and Immigration), 2007 FC 88 at
para 31, where the Court found a visa officer’s decision to refuse a study
permit unreasonable because of, among other things, “the
Officer’s failure to consider the applicant’s ties to China”; and Oloruntoba
v Canada (Citizenship and Immigration), 2012 FC 1414, where Justice Zinn
overturned a visa officer’s decision in light of a failure to address clear
evidence in the applicant’s favour.
[9]
The Respondent argues that the Applicant is
simply taking issue with the weight that the Officer assigned to the evidence
and that “the weight to be assigned to the factors… is
not a basis for judicial review” (Baylon v Canada (Citizenship and
Immigration), 2009
FC 938 at para 25). The Respondent submits that the onus was on
the Applicant to demonstrate that he would leave Canada at the end of the study
period (Dhillon v Canada (Citizenship and Immigration), 2009 FC 614 at
para 41) and that he failed to do so. Finally, the Respondent argues that there
was nothing unreasonable in the Officer’s conclusion that the Applicant’s
program of study – his purpose of visit – was inconsistent with his education
and employment history. As a result, the -Decision should not be disturbed.
[10]
I agree with the Applicant that the Decision
lacked justification in this case. Specifically, the Officer did not offer any
explanation as to why he found the Applicant’s program of study in Canada to be
inconsistent with his previous education and employment history.
[11]
After all, the Applicant is seeking a
post-graduate certificate in international business. He asserts that he studied
economics and statistics in university and has been employed for over a decade
by a large multinational business in the oil and gas sector, in part as a
procurement analyst. I cannot understand, from the Officer’s reasons, how this professional
and educational background is inconsistent with a one-year study program in
international business.
[12]
It may be that the Officer was aware of
underlying issues in the application. However, the only explanation regarding
the reason for refusal – that the Applicant would not leave Canada at the end
of his authorized stay because of his “educational and
employment history” – is entirely unhelpful since the Officer does not
state what it is about either his education or employment that is actually problematic.
[13]
In other words, the Officer may have had perfectly
justifiable reasons for basing a refusal on any of the grounds, but needed to
state, with a modicum of clarity, what they were. A visa officer’s reasons need
not be perfect but they must “allow the reviewing court
to understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes” (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16). Where, as in this case, the reasons are so inadequate
as to render the decision itself unjustified and unintelligible, and the
conclusion thus falls, as a result, outside of the range of acceptable
outcomes, then the decision should be reviewed and sent back for
reconsideration.
[14]
One final note: at the hearing, the Respondent made,
for the first time, the observation that several of the documents contained in
the Application Record and cited by the Applicant in his arguments – including
the Applicant’s alleged application cover letter and employment reference
letters – were not in the Certified Tribunal Record [CTR] and therefore not
before the visa officer. The Respondent submitted that, as a result, this Court
could not consider those documents in its decision.
[15]
The jurisprudence is clear that the onus is on
the Applicant to demonstrate that something was before the decision-maker if it
is not in the CTR:
Where the Certified Tribunal Record
does not contain a document or make any reference to such a document, a bare
assertion by the applicant that the document was sent will not suffice to meet
this burden (Singh Khatra at para. 6; Adewale v. Canada (Citizenship
and Immigration), 2007 FC 1190 at para. 11).
(El Dor v Canada (Citizenship and Immigration), 2015
FC 1406 at para 32)
[16]
If the Applicant cannot overcome this presumption, the disputed evidence
cannot be considered by this Court on judicial review (Ajeigbe v Canada
(Citizenship and Immigration), 2015 FC 534 at para 13; Adewale v Canada
(Citizenship and Immigration), 2007 FC 1190 at para 10 [Adewale]).
[17]
While a review of the records suggests that the Respondent is correct, I
need not rule on the document controversy since the unreasonableness of the Decision
is clear even without considering the disputed documents. Having said that, it
would be helpful to the Court in the future for parties to raise any issue of
conflicting records in advance of the hearing so that it can be properly
addressed. In Adewale, for example, Justice Blanchard ultimately concluded
that he could not consider the disputed evidence, but only after Department of Justice
brought a motion to strike it from the record.
[18]
It is particularly incumbent on the Respondent to raise any evidentiary
inconsistency in a timely manner when one of the arguments posited is that the
officer in question sufficiently considered the evidence that was before him or
her. Similarly, in situations where a piece of disputed documentation is
central to the applicant’s position, the issue should be addressed up front and
in a timely manner, lest that Applicant find him or herself in the position of
being unable to overcome the presumption of a complete CTR.
III.
Conclusion
[19]
In light of the above, this application for
judicial review is granted.
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