Docket: IMM-4975-16
Citation:
2017 FC 490
[ENGLISH TRANSLATION]
Montréal, Quebec, May 11, 2017
Present: The
Honourable Mr. Justice Shore
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BETWEEN:
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MAKINY WAFFO
TÉKADAM
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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
[12] It seems evident that the
evidence, and especially the appellant’s previous record, led the visa officer
to conclude that the appellant would not abide by the time limits of his right
of residence, regardless of the standard of review applied. A decision which is
based on the evidence is impervious to the reasonableness simpliciter
standard because in dealing with such a decision a reviewing court cannot
engage de novo in its own analysis or substitute its own reasons (Law
Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII), [2003] 1 S.C.R. 247
at paragraph 47). In short, the visa officer had the last word, no matter what
standard applied.
(Eymard Boni v Canada (Minister of
Citizenship and Immigration), 2006 FCA 68, according to a unanimous
decision by the Federal Court of Appeal, written by then Mr. Justice Marc Noël)
[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 Ababa 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)
(As stated by Mr. Justice Denis Gascon in Solopova
v Canada (Citizenship and Immigration), 2016 FC 690)
II.
Nature of the case
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 [IRPA] of a decision dated October 17, 2016, by a visa officer
from the Canadian Embassy in Paris, refusing the applicant’s study permit application.
III.
Facts
[2]
The applicant, 28 years old, is a citizen
of Cameroon. She arrived in Canada in November 2009 with a study permit that
was valid until March 31, 2013.
[3]
The applicant’s studies were interrupted in
February 2013, after the death of her father, who provided for her needs, on
January 24, 2013. At that time, she had completed two-thirds of her bachelor’s
degree in chemistry.
[4]
The applicant remained in Canada illegally until
June 2016. In order to complete her studies, she applied for restoration of temporary
resident status on February 1, 2016, which was refused on May 27, 2016.
The applicant left Canada on June 15, 2016, to return to Cameroon.
[5]
The applicant submitted five new study permit
applications between July and September 2016, which were refused. On September
27, 2016, she submitted a new application for a study permit, which was
refused.
IV.
Decision
[6]
On October 17, 2016, a visa officer from the
Canadian Embassy in Paris refused the applicant’s sixth application for a study
permit, not convinced that she satisfied the requirements of the IRPA. In the
refusal letter, the officer ticked off the following elements:
You have not satisfied me that you would
leave Canada at the end of your stay as a temporary resident. In reaching this
decision, I considered several factors, including:
your family ties in Canada and in
your country of residence;
purpose of visit;
your history of having contravened
the conditions of entry on a previous stay in Canada
(Letter dated October 17, 2016, Embassy
Record, at p. 57)
[7]
The officer also recorded his reasons in the
Global Case Management System [GCMS]:
[translation]
5 previous refusals noted. PA had a SP valid
until March 2013, but stayed in Cda without status until June 2016. PA states
that she stayed because she was upset by the death of her father. PA does not
explain why she did not return to be near those closest to her at that
difficult time. Also, according to the letter from the Univ Montréal, in two
years PA only earned 6 credits. PA recently returned to Cameroon, single, no children,
seems to have limited ties with her country of residence. I am not persuaded
that PA is a gf student. refusal [sic]
(GCMS notes, Embassy Record, at p. 3)
V.
Issue
[8]
The issue is the following: did the visa officer
err in refusing the applicant’s study permit application?
[9]
It is well established that a visa officer’s
decision to refuse or grant a study permit is within that officer’s discretion
and must be reviewed on a standard of reasonableness. Given their expertise in
analyzing and assessing student visa applications, the Court must give
deference to the decisions made by visa officers Singh v Canada (Citizenship
and Immigration), 2012 FC 526 at para 14).
VI.
Analysis
[10]
The applicant argues that the officer erred in
considering the evidence submitted regarding her family ties in Cameroon and
the absence of family in Canada, and her intention to complete her chemistry studies
in Canada, as well as regarding her failure to respect the conditions on a
previous stay. The applicant further alleges that the officer erred in finding
that she would not leave Canada at the end of her stay and that she was not a good
faith student. In her view, the officer should have let her provide
explanations at an interview.
[11]
The respondent argues on the contrary that the
officer adequately analyzed the evidence in the study permit application file.
In fact, the officer noted that: (1) the applicant did not return to her
family following her father’s death, she is single and has no children;
(2) she did not demonstrate that the purpose of her visit was to finish
her program of study; (3) she stayed illegally in Canada between March
2013 and June 2016. Indeed, the respondent submits that the onus was on the
applicant to provide all the relevant information and documents in support of
her application (De La Cruz Garcia v Canada (Citizenship and Immigration),
2016 FC 784) and that the officer was not bound to conduct an interview with
her.
[12]
The Court must determine whether the visa
officer’s decision is justified, transparent and intelligible, and therefore,
whether it falls within the range of possible, acceptable outcomes based on the
facts and the law (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC
9 at para 47).
[13]
The visa officer enjoys discretion in his
decision-making. He is entitled to consider the totality of the circumstances (Rammal
(Guardian of) v Canada (Minister of Citizenship and Immigration), [2003]
FCJ No. 462, 2003 FCT 318; Wong (Litigation Guardian) v Canada (Minister of
Citizenship and Immigration), (1999), 246 NR 377 (FCA)).
[14]
It was open to the officer to draw a negative
inference from the fact that the applicant stayed in Canada without status for
three years after her study permit expired, as well as from the refusals of her
previous visa applications.
[15]
Accordingly, the officer did not make any error
in his decision that requires the Court’s intervention.
VII.
Conclusion
[16]
The application for judicial review is
dismissed.
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