Docket: IMM-4115-16
Citation:
2017 FC 600
Ottawa, Ontario, June 16, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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NOUH HUSSEIN
ABDALLA HAMAD, MUNIRA SALEH MAHMOUD AND ABDALLA, AHMAD, ASIA, AND ABDERRAHMAN
HAMAD, BY THEIR LITIGATION GUARDIAN, NOUH HUSSEIN ABDALA HAMAD
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Applicants
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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
[1]
The Applicants are a family from Libya. This is
a judicial review of a Visa Officer’s [the Officer] decision to deny the Principal
Applicant, Nouh Hussein Abdalla Hamad [PA] a permit to study in Canada. The PA
argues that the Officer’s decision is unreasonable and that his procedural
fairness rights in being considered for a study visa were not respected. For
the reasons that follow, I conclude the Officer’s decision is reasonable and that
there is no merit to the procedural fairness argument. The application for judicial
review is therefore denied.
I.
Background and decision under review
[2]
In 2011, the PA made his first application to
study in Canada. His family made an application for temporary resident visas in
conjunction with his study visa. His application was denied, as the Visa Officer
was not satisfied that the PA and his family would return to Libya after the
period of study. A judicial review of that refusal was successful. However, upon
reconsideration, the application was again refused. Once again, the Applicants
sought judicial review of the second denial and were successful. Eventually,
the PA and his family were issued the necessary visas to come to Canada. In early
2014, the PA enrolled in English classes at George Brown College in Toronto. However,
before the expiry of their visas, the PA and his family returned to Libya.
[3]
In June 2016, the PA once again applied for a
student visa and his family applied for temporary resident visas.
[4]
Following a personal interview, the Officer
denied the application. In his decision and accompanying notes, the Officer states
that he was not satisfied that the PA would leave Canada at the end of his
studies. The Officer was also not satisfied that the Applicant was a genuine
student or that his intended course of study was a “logical
continuation of [his] academic and professional career.” This is the
decision under review.
II.
Issues
[5]
There are two issues for determination in this
application for judicial review:
- Is the Officer’s
decision reasonable?
- Was there a
breach of the PA’s procedural fairness rights?
III.
Standard of Review
[6]
A Visa Officer’s decision to grant a temporary
resident visa or a study permit is reviewable on a standard of reasonableness
(see: Ngalamulume v Canada (Citizenship and Immigration, 2009 FC 1268 at
paras 15-16; Punia v Canada (Citizenship and Immigration), 2017 FC 184
at para 20; Patel v Canada (Citizenship and Immigration), 2009 FC 602 at
para 28).
[7]
A decision is reasonable when it is justifiable,
intelligible, and transparent and “falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (see Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47).
[8]
Issues of procedural fairness are assessed on a
standard of correctness (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43). Under this standard, the reviewing court shows no
deference to the decision maker’s reasoning process and will substitute its own
view if it doesn’t agree with the decision maker’s determinations and provide
the correct answer. (see Dunsmuir at para 50)
IV.
Analysis
A.
Is the Officer’s decision reasonable?
[9]
The PA argues that the Officer erred in finding his
career plans were unrealistic in light of the political instability in Libya. The
PA alleges that the Officer’s conclusion that he would have little chance of
being hired in a managerial position as a recent graduate was unreasonable. He
argues that the Officer ignored his business background, and the fact that he is
a successful and experienced businessman.
[10]
The PA stated that he wanted to study in Canada
to increase his chances of being hired by an international company after the
conflict in Libya concluded. The PA advised the Officer that with a diploma from
a Canadian college and the ability to speak English, he would be sought after
for management level positions. The Officer found this to be “unrealistic” and it cast doubt on the PA’s true purpose
in applying for a study permit.
[11]
The Officer also noted that the PA’s businesses
appeared to have done well without the PA having a college degree or speaking
English. The Officer stated that it was “very unlikely
that an international company would hire a fresh graduate from a community
college in a managerial position.”
[12]
This was a reasonable conclusion for the Officer
to make based upon the assessment of the evidence before him. In Zhang v
Canada (Minister of Citizenship and Immigration), 2003 FC 1493, this Court
stated that a “visa officer has wide discretion in
assessing the evidence and coming to a decision” (see para 7).
[13]
The comments by Justice Leblanc in Akomolafe
v Canada (Citizenship and Immigration), 2016 FC 472, are applicable here:
[20] The Applicant explained in his
“affidavit on purpose of visit” that he intends to studying at Centennial
College to develop his “analytical, organizational and management skills” and
that “studying in Canada will also help me to develop the skill needed to deal
with ever-changing Business World.” He also explained in his affidavit to “show
ties to the home country” that his intention is to “achieve a long standing
dream to studying abroad to gain international relationship and position myself
to harness the numerous available potentials in Nigeria as related to my
profession.”
[21] These reasons are indeed vague and
it was entirely open to the Officer to make a finding to that effect. The
Applicant is a mature 37 year old adult who appears to be well-established at
his place of work as a head business analyst and personal assistant to the
Managing Director. He plans on returning to the same position following his
studies with the view of eventually establishing a consultancy firm to advise
companies on business development. I would presume that the Applicant already
possesses the requisite analytical, organization and management skills to carry
out his functions in his current position. It was therefore entirely open for
the Officer to find that the Applicant did not sufficiently articulate the
specific benefits to be accrued for his current position, thereby putting into
question the genuineness of the Applicant’s intention.
[14]
Here, the PA appears to be professionally well
established in Libya as a purchasing officer for a University and running his
own business as a partner in a building construction store. It was therefore
reasonable for the Officer to conclude that improved English language skills
and a Canadian college degree do not demonstrate how the PA could improve his employment
marketability such as to allow him to obtain a management level position with
an international company.
[15]
Additionally, it was reasonable for the Officer
to consider gap in the PA’s studies, namely that, since completing his business
administration studies in Libya, he has not undertaken any further studies in
the business field to improve his professional competencies.
[16]
Ultimately, the burden of proof lies upon the PA
to satisfy the Visa Officer that he would not remain in Canada once the visa
expires. Here, the Officer was not satisfied that would be the case. It was
open to the Officer to make a negative finding regarding the PA’s genuine
intention to study, especially given the PA’s vague and intangible explanations
and predictions that were not based on any concrete evidence.
[17]
Accordingly, the Officer’s decision is reasonable.
B.
Was there a breach of the PA’S s procedural
fairness rights?
[18]
The PA argues that the Officer breached his duty
of fairness by failing to disclose his concerns regarding the current situation
in Libya as against the PA’s assessment of the situation in Libya. The PA
portrayed a positive view of the situation in Libya which the Officer found difficult
to reconcile against the reality on the ground. The PA
argues he should have had the opportunity to respond to the Officer’s concerns
in this regard.
[19]
In Hassani v Canada (Citizenship and
Immigration), 2006 FC 1283, Justice Mosley explained the duty of fairness
owed to Applicants by Visa Officers:
[24] Having reviewed the factual
context of the cases cited above, it is clear that where a concern arises
directly from the requirements of the legislation or related regulations, a
visa officer will not be under a duty to provide an opportunity for the
applicant to address his or her concerns. Where however the issue is not one
that arises in this context, such a duty may arise. This is often the case
where the credibility, accuracy or genuine nature of information submitted by
the applicant in support of their application is the basis of the visa
officer’s concern (…)
[20]
In this case, the Officer did not question the credibility
or authenticity of the evidence presented by the PA. Rather, the Officer was
simply not satisfied that the reasoning provided by the PA for his wanting to
study in Canada was realistic. This finding fell within the Officer’s
discretion.
[21]
Further, as has been noted by this Court,
procedural fairness does not require a Visa Officer “to provide an applicant with a ‘running
score’ of the weaknesses in their application” (Rukmangathan
v Canada (Minister of Citizenship and Immigration), 2004 FC 284 at para
23). Rather, in the “case of
visa applicants, the minimum degree of procedural fairness to which they are
entitled is at the low end of the spectrum” (see
Pan v Canada (Citizenship and Immigration), 2010 FC 838 at para 26).
[22]
Here, there is no evidence that any breach in procedural
fairness occurred.
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