Docket: IMM-4519-15
Citation:
2016 FC 1053
Ottawa, Ontario, September 16, 2016
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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ISMAIL MK
AL-KATANANI
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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]
In 2012, Mr. Ismail Mk Al-Katanani applied for
permanent residence in Canada as a member of the economic class, under the self-employed
person category. Mr. Al-Katanani submitted that he had the required minimal two
periods of one-year experience in the management of a farm, one of only three
possible categories recognized by the Canadian immigration authorities to be
admitted as a self-employed person.
[2]
A visa officer [the Officer] at the Canadian
High Commission in London, England reviewed Mr. Al-Katanani’s permanent
resident application but refused it in a decision dated August 10, 2015 [the
Decision]. The Officer was not satisfied that Mr. Al-Katanani had enough
relevant experience in the management of a farm, nor that he could make a significant
contribution to this specified economic activity in Canada. Mr. Al-Katanani sought
a redetermination of his application in September 2015, but his request was
refused in November 2015 as no sufficient compelling information warranted the
re-opening of his file.
[3]
Mr. Al-Katanani has applied to this Court for
judicial review of the Officer’s Decision dismissing his permanent residence
application. He 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 properly consider the materials provided on his relevant work
experience. Mr. Al-Katanani also contends that the Officer’s reasons are
inadequate since they do not sufficiently explain how the Officer reached his
conclusion that Mr. Al-Katanani did not have the required experience under the
self-employed category. He asks this Court to quash the decision and to send it
back for redetermination by a different visa officer.
[4]
Mr. Al-Katanani’s application raises two issues:
1) was the Officer’s Decision denying the permanent resident status sought by
Mr. Al-Katanani reasonable; 2) were the Officer’s reasons sufficiently
inadequate to warrant the intervention of the Court.
[5]
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
is defensible based on the facts and the law. It falls well within the range of
possible, acceptable outcomes. I also find that the
reasons for the Decision adequately explain how the Officer found that Mr. Al-Katanani
did not meet the requirements for permanent residence in Canada in the
self-employed person category. There are no sufficient grounds to justify this
Court’s intervention, and I must therefore dismiss Mr.
Al-Katanani’s application for judicial review.
II.
Background
A.
The Officer’s Decision
[6]
In his Decision, the Officer first reiterated
all the relevant provisions and requirements to satisfy the self-employed
person class. He then indicated to Mr. Al-Katanani that, based on the evidence
provided on his education, his experience and his personal net worth, Mr.
Al-Katanani did not “show that [he had] relevant
experience gained through active involvement in the management of a farm, and
[he had] not adequately explained how [he would] be able to be self-employed in
Canada or make a significant contribution through the purchase and management
of a farm”.
[7]
The notes taken by the Officer in the Global Case
Management System [GCMS], which form part of his reasons and were indeed sent
to Mr. Al-Katanani with the Decision, offer more detail. The GCMS notes entered
on February 23, 2015 indicated that Mr. Al-Katanani listed experience in
banking as an IT manager since 1997, and seemed to have experience in computer
science. While a support letter from a Mr. Khayrat Meshrefah stated that he
participated in farm management from September 2009 to May 2012, Mr.
Al-Katanani’s evidence regarding the accumulation of his funds since 1998 showed
that he was, during that same period, “Head of
Information Tech. for Global Investment House”. The Officer found unreasonable
that Mr. Al-Katanani could have gained full-time experience in farm management at
a time where he was also working full-time in his field of study. He also noted
the absence of any explanation as to how Mr. Al-Katanani could be involved in
agriculture without having any educational or employment background in this
field. As a result, the Officer was not satisfied that Mr. Al-Katanani
demonstrated enough experience in farm management.
[8]
A procedural fairness letter was sent to Mr.
Al-Katanani after the February 2015 GCMS notes were written, warning him that
he did not appear to meet the applicable criteria, and giving him an
opportunity to respond. The procedural fairness notably outlined the
deficiencies identified by the Officer in Mr. Al-Katanani’s work experience,
including his hours worked, income and level of direct involvement in farming. In
response, Mr. Al-Katanani provided a letter on March 24, 2015, a business plan
and proof of his brother’s education in agriculture. No further details were
offered on Mr. Al-Katanani’s experience in the management of a farm.
[9]
In the GCMS notes entered on August 7, 2015,
after receipt of Mr. Al-Katanani’s response to the procedural fairness letter,
the Officer reiterated that Mr. Al-Katanani’s IT and management experience in
financial institutions did not give him the relevant experience in farm
management. The Officer observed that, in his March 2015 letter, Mr.
Al-Katanani himself acknowledged that his education and relevant experience “may not provide sufficient evidence for the ‘self-employed person’
in the farming business”. Mr. Al-Katanani however contended that his IT
background and management experience in financial institutions would provide
him “with the required skills and competencies to
manage the farm”.
[10]
As a result, the Officer found that Mr.
Al-Katanani’s intended reliance on his brother’s knowledge in agriculture and his
lack of relevant experience or educational background in farm management failed
to demonstrate Mr. Al-Katanani’s personal ability to make a significant
contribution to farming. Furthermore, the $150,000 to $200,000 of “seed” money foreseen in Mr. Al-Katanani’s business
plan to buy a farm was considered insufficient by the Officer. The Officer
therefore concluded that Mr. Al-Katanani was not eligible to become a permanent
residence in Canada under the self-employed person class.
B.
The standard of review
[11]
The standard of review for a visa officer’s decision
on the admissions of foreign nationals under the self-employed sub-class of the
economic class is reasonableness as it is a question a mixed facts and law (Singh
v Canada (Citizenship and Immigration), 2016 FC 904 at para 10; Guryeva
v Canada (Citizenship and Immigration), 2015 FC 1103 at para 5).
[12]
The issue of adequacy of reasons is also reviewable
under a reasonableness standard (Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at paras 14-16; Canada (Citizenship and Immigration) v Gabor,
2015 FC 168 at paras 16-19).
[13]
When reviewing a decision
on the standard of reasonableness, the analysis is concerned with the existence
of justification, transparency and intelligibility within the decision-making
process, and the Officer’s findings should not be
disturbed as long as the Decision “falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47). In conducting a reasonableness review of factual findings, it is
not the role of the Court to reweigh the evidence or the relative importance
given by the decision-maker to any relevant factor (Kanthasamy v Canada
(Minister of Citizenship and Immigration), 2014 FCA 113 at para 99). Under
a reasonableness standard, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, and the decision is supported by acceptable evidence that can
be justified in fact and in law, a reviewing court should not substitute its
own view of a preferable outcome (Newfoundland Nurses at para 17).
III.
Analysis
A.
The Officer’s Decision is reasonable
[14]
Mr. Al-Katanani argues that the Officer’s Decision
is unreasonable, as it ignored much of the information contained in the
detailed letter from Mr. Meshrefah and in Mr. Al-Katanani’s business plan. Mr.
Al-Katanani claims that Mr. Meshrefah’s letter indicated clearly that he had
farm management experience as he assisted in “planning,
budgeting, and managing production and handling business administration”.
He adds that Mr. Meshrefah also described the activities in which he
participated, namely “planting, growing, and harvesting
crops or breeding and raising livestock”, assisting in “inspecting the farm buildings and equipment”, as well
as “ensuring that farm operations and practices meet
health, safety, and environmental standards and regulations”.
[15]
Mr. Al-Katanani further submits that he
addressed all the issues raised by the Officer in the procedural fairness
letter and provided evidence to confirm his statements. He pleads that, in
dismissing his application, the Officer either ignored or misconstrued his explanations.
Mr. Al-Katanani refers notably to his evidence showing that he would capitalize
on his brother’s experience in agriculture, who will be his partner with a 50%
share in the farm, that he would hire a full time technical manager, that he
would be fully dedicated to enriching his knowledge in farm management, and
that his IT background in financial institutions would provide him with the
required skills and competencies to succeed in farm management.
[16]
More particularly, Mr. Al-Katanani singles out the
fact that the Officer failed to mention the Meshrefah letter and thus ignored
his working experience of 3 years on a farm. Finally, Mr. Al-Katanani submits
that the Officer did not apply the proper test as he indicated in the GCMS
notes that “although only two one year periods is
required in the management of a farm, it appears reasonable to expect that a
person with the ability to purchase a farm in Canada and make a significant
contribution, would have several years’ experience in agriculture both at and
below the management level”. Furthermore, says Mr. Al-Katanani, the
Officer wrongly required “full-time” work
experience.
[17]
I do not agree with Mr. Al-Katanani and instead conclude that the Officer’s
Decision fits well within the boundaries of reasonableness.
[18]
Contrary to Mr. Al-Katanani’s submissions, the Officer
did not ignore the letter from Mr. Meshrefah. In fact, the Officer’s GCMS notes
went to considerable length in explaining his specific concerns with the
shortcomings of that letter. It is simply incorrect for Mr. Al-Katanani to
state that there “is no mention whatsoever of the
letter in the reasons for decision” and that the Officer gave “no indication as to why the experience and duties outlined
in the letter were not found to be suitable”. The GCMS notes rather
unveiled many problems identified by the Officer in the Meshrefah letter, such
as the absence of a statement or explanation regarding Mr. Al-Katanani’s
participation outlined in the letter, the reasons for Mr. Al-Katanani’s involvement
in agriculture (an industry unrelated to his educational or employment
background), and the fact that “[w]ithout additional
evidence of his experience, [the Officer] cannot be satisfied the purpose of
this letter was not to facilitate [Mr. Al-Katanani’s] application”.
[19]
In his discussion of Mr. Mesherfah’s letter, the
Officer also observed that it did not appear reasonable that Mr. Al-Katanani “would have gained full-time experience in the management of
a farm” during a period where he also listed “experience
as the Head of Information Tech. for Global Investment House”. In short,
the Officer discussed extensively Mr. Meshrefah’s letter and its references to
Mr. Al-Katanani’s alleged participation in farm management, and he was not
satisfied that such experience “meets the definition of
two one year periods in the management of a farm”.
[20]
I also observe that the letter from Mr. Meshrefah
refers to Mr. Al-Katanani’s “participation” and “assistance” in the farm business but contains no real
description of the tasks he actually performed. While this could arguably have
been sufficient for someone who clearly had past experience or educational
background in agriculture, Mr. Al-Katanani had neither. Instead, the evidence
shows that he studied computer science during 7 years, followed by 15 years of
work in IT jobs in the banking sector. Thus, it was certainly not unreasonable
for the Officer to raise the incompatibility between his alleged two lines of
work experience and to conclude that Mr. Al-Katanani’s alleged experience in
farming was not sufficient. Indeed, the Officer flagged those concerns to Mr.
Al-Katanani in his procedural fairness letter, but Mr. Al-Katanani elected not
to address them in his responses.
[21]
Under subsection 88(1) of the Immigration and
Refugee Protection Regulations, SOR/2002-227, a self-employed person is
someone who brings together a “relevant experience”,
the ability “to be self-employed in Canada” and “to make a significant contribution to specified economic
activities in Canada”, as well as the intention to do all of the above.
At least two years of experience in farm management out of the last five years
is required to prove the first element, which is the relevant experience. Not
only did the Officer find that Mr. Al-Katanani did not have the necessary experience,
but he also concluded that he lacked the ability to make a significant
contribution through the purchase and management of a farm. Contrary to what
Mr. Al-Katanani alleges, to expect more than the sole the two years of farm experience,
and to expect that an applicant shows an ability to contribute to the Canadian society,
is part of the test. It does not amount to a reviewable error.
[22]
As to the Officer’s reference to a lack of “full-time” experience, I fail to see how such an
interpretation of section 88 of the Regulations can be unreasonable. Section
88 requires that, in the five years before the application, there needs to be
two one-year periods of experience in the management of a farm. Evidently, the
five-year denominator in section 88 is not a less than full-time period; so,
the two-year numerator must also logically (and reasonably) refer to a
full-time dimension as well.
[23]
I pause to point out that Mr. Al-Katanani himself
acknowledged, in his March 2015 letter responding to the procedural fairness
letter, that his “education and/or relevant experience
may not provide sufficient evidence for the ‘self-employed person’ in the
farming business”.
[24]
As for the business plan, it was also taken into
consideration by the Officer, even though Mr. Al-Katanani was found not to have
enough relevant experience. The Officer mentioned Mr. Al-Katanani’s net worth,
but his “seed” money of $150,000-$200,000 was
considered insufficient. An unrealistic or insufficiently-funded business plan
is a factor that a visa officer can retain in assessing whether an applicant
meets the requirements (Singh Sahota v Canada (Minister of Citizenship and
Immigration), 2005 FC 856 at para 13; Wohlmayer v Canada (Minister of
Citizenship and Immigration), 2002 FCT 155 at para 11). Also, the
Operational Manual of Citizenship and Immigration Canada regarding the
self-employed persons class clearly establishes that purchasing a farm can be
onerous, and that an officers must take into account different factors in order
to assess an applicant’s experience, intent and ability to own a farm in Canada.
[25]
In sum, Mr. Al-Katanani does not point to any cogent
evidence suggesting that documents were ignored by the Officer. On the
contrary, the GCMC notes are replete with explicit references to the materials
submitted by Mr. At-Katanani, such as Mr. Meshrefah’s letter, his business plan
and the education certificates of Mr. Al-Katanani’s brother.
[26]
It is well recognized that a decision-maker is presumed to have weighed and considered all the
evidence presented to it unless the contrary is shown (Florea v Canada
(Minister of Employment and Immigration), [1993] FCJ no 598 (FCA) at para
1). A decision-maker is not required to refer to each
and every piece of evidence supporting its conclusions 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). Similarly, a failure to mention
a particular piece of evidence does not mean that it was ignored. It is only when a tribunal is silent on evidence clearly pointing
to an opposite conclusion that the Court may intervene and infer that the
tribunal overlooked the contradictory evidence when making its finding of fact
(Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration)
(1998), 157 FTR 35 (FCTD) at paras 16-17). This is not the case here, as the
evidence was clearly referred to and the facts contained in Mr. Al-Katanani’s
submissions were taken into consideration by the Officer. The Ekladious
Mansour v Canada (Citizenship and Immigration), 2013 FC 343 matter relied
on by Mr. Al-Katanani is clearly distinguishable as, in that case, the Officer
completely omitted to refer to a material letter provided by the applicant.
[27]
The reasons are to be
read as a whole, in conjunction with the record (Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira] at para 53; Construction
Labour Relations v Driver Iron Inc, 2012 SCC 65 at para 3). That said,
a judicial review is not a “line-by-line
treasure hunt for error” (Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at para 54). The Court should approach the reasons with a
view to “understanding, not to
puzzling over every possible inconsistency, ambiguity or infelicity of
expression” (Ragupathy v Canada (Minister of Citizenship
and Immigration), 2006 FCA 151 at para 15).
[28]
In essence, Mr. Al-Katanani is simply inviting
the Court to reweigh the evidence that he has presented before the Officer. In
conducting a reasonableness review of factual findings, it is not the role of
the Court to do so or to reassess the relative importance given by the
decision-maker to any relevant piece of evidence. If the findings provide
sufficient justification and rationality in light of the totality of the
evidence before the decision-maker, a reviewing court should not substitute its
own view of a preferable outcome. In the end, I find nothing unreasonable in
the Officer’s Decision.
B.
The Officer’s reasons are sufficient and
adequate
[29]
Mr. Al-Katanani further claims that the Officer’s
reasons are inadequate to meet the requirement of fairness as the Officer did
not offer any acceptable explanations as to why Mr. Al-Katanani did not satisfy
the self-employed person requirements. He submits that reasons “are adequate when they are clear, precise and intelligible
and when they state why the decision was reached” (Canada
(Citizenship and Immigration) v Jeizan, 2010 FC 323 [Jeizan] at para
17). Relying on Canada (Minister of Citizenship and Immigration) v Wong,
2009 FC 1085 [Wong], Mr. Al-Katanani further pleads that the “reasons should be sufficiently clear and detailed so as to
demonstrate to the Minister that all relevant facts have been considered and
weighed appropriately and that the correct legal tests have been applied”
(Wong at para 17).
[30]
The test articulated by this Court in Jeizan
and Wong has been reaffirmed by the Supreme Court in Newfoundland Nurses. Reasons are sufficient
if they “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
Nurses at para 16). Contrary to Mr. Al-Katanani, I am of the view that the
Officer’s Decision amply meets these requirements.
[31]
As I explained in Canada (Minister of
Citizenship and Immigration) v Abdulghafoor, 2015 FC 1020 at paras 30-36, the
law relating to the sufficiency of reasons in
administrative decision-making has evolved substantially since Dunsmuir.
It is true both with respect to the degree of scrutiny to which fact-based
decisions (such as the Decision at issue in this case) should be subjected, and
in relation to the sufficiency of reasons as a stand‑alone ground for
judicial review.
[32]
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 (Newfoundland Nurses
at paras 16 and 18). 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 at para 53). 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, as long as the Court is able
to understand why the decision was made. I find that,
in this case, the Officer’s Decision is transparent and
intelligible and clearly falls within such a range.
[33]
A decision-maker is not
required to refer to each and every detail supporting his or her conclusion. In
order to provide adequate reasons, “the decision maker
must set out its findings of fact and the principal evidence upon which those
findings were based”, as well as “address the
major point in issue” and “reflect consideration
of the main relevant factors” (VIA Rail Canada Inc v National
Transportation Agency, [2001] 2 FCR 25 at para 22). This is exactly what
the Officer did. Reasons do not need to be lengthy either. Even a sentence or
two can be enough to provide adequate reasons (Vancouver International
Airport Authority v Public Service Alliance of Canada, 2010 FCA 158 at para
25). As long as the reasons “allow the individual to
understand why the decision was made” and “allow
the reviewing court to assess the validity of the decision”, they will
be sufficient (Lake v Canada (Minister of Justice), 2008 SCC 23 at para
46).
[34]
A reviewing court
looks to the record with a view to upholding the decision. Where they are readily
apparent, evidentiary gaps may be filled in when supported by the evidence, and
logical inferences implicit to the result may be drawn (Komolafe v Canada
(Minister of Citizenship and Immigration), 2013 FC 431 [Komolafe] at
para 10). I agree that Newfoundland Nurses and its progeny is not an invitation to the Courts to provide
reasons that were not given, nor is it a licence to guess what findings might
have been made or to speculate as to what a decision-maker might have been
thinking (Komolafe at para 11). However, in this case, I conclude that
the reasons are vastly sufficient and adequate with regard to the test
established by Newfoundland Nurses. The Officer’s reasons are clear,
straightforward, and well-documented. They enable me to understand how the
Officer reached its conclusion as they explain why Mr. Al-Katanani did not meet
the requirements of the self-employed person class, and there is factual
foundation for reaching this conclusion. There is no inadequacy of reasons.
IV.
Conclusion
[35]
The Officer’s refusal of Mr. Al-Katanani’s
application for permanent residence in the self-employed person category represents
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 provided adequate reasons. Therefore, I must dismiss Mr.
Al-Katanani’s application for judicial review.
[36]
Neither party has proposed a question of general
importance for me to certify, and I agree there is none.
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