Docket: IMM-552-17
Citation:
2017 FC 949
Ottawa, Ontario, October 25, 2017
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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MOBOLAJI JOSHUA
CHIDIRIM ALAJE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Defendant
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JUDGMENT AND REASONS
[1]
The applicant challenges the reasonableness or
legality of a decision rendered by the visa section of the High Commission of
Canada in Ghana, refusing the applicant’s study permit application which was
filed pursuant to subsection 11(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA], and section 213 of the Immigration and
Refugee Protection Regulations, SOR/2002/227 [IRPR].
[2]
The basic facts are not contested.
[3]
The applicant is a twelve year old Nigerian
citizen. He lives with his parents, both Nigerian citizens, in Lagos, Nigeria.
His extended family resides in Nigeria as well. He applied for a study permit
to attend an elementary school in Canada as a full-time student for the
2016-2017 school year, under the care of his aunt Joy Ochiabuto. He submitted a
letter of admission to a private elementary school in Toronto, the Cathedral
Christian Academy. The applicant claims having no family in Canada, apart from
his aunt.
[4]
A first study permit application was refused sometime
in 2016, as the visa officer apparently questioned the purpose of the visit in
Canada. On December 1, 2016, the applicant submitted a second study permit
application. This time, to support this application, the applicant submitted additional
evidence, including:
(a)
A statutory declaration of Joy Ochiabuto
explaining her relationship to the applicant, her intention to provide for him
during his stay in Canada, and her intention to ensure his return to Canada;
(b)
Joy Ochiabuto’s certificate of citizenship and Canadian
identification card;
(c)
Various documents pertaining to Ms. Ochiabuto’s
employment and financial means, including a Scotiabank account summary
displaying the applicant’s name under designated beneficiaries;
(d)
The applicant’s parents’ declaration of
custodianship;
(e)
The applicant’s letter of admission at the
Cathedral Christian Academy in Toronto, dated May 25, 2016, and proof of
continued admission despite his first visa application refusal, dated October
13, 2016;
(f)
A sworn affidavit of the applicant’s mother, Nkechi
Patience Alaje, in which she explains her choice to send the applicant to study
in Canada under the care of her sister. She mentions the poor quality of
schools in Nigeria and her strong ties with her sister. She affirms she will
undertake to ensure her son’s return to Canada upon completion of the program;
(g)
A sworn affidavit of the applicant’s father, Mobolaji
Alaje. The content is similar to the mother’s;
(h)
The applicant’s parents’ marriage certificate;
and
(i)
The mother’s birth certificate which shows her
maiden name, Ochiabuto, the same as the care provider in Canada.
[5]
On January 31, 2017, the visa section of the
Canadian High Commission in Accra, Ghana, denied the application by way of a refusal
letter in standard form. In a nutshell, the officer was not satisfied that the
applicant would leave Canada at the end of his stay. He mentions having
considered several factors, including “travel history”
and “purpose of visit”. On February 27, 2017,
the applicant received lengthier written reasons by fax.
[6]
The present case raises two distinct issues:
(a)
Was the officer’s decision to refuse the study
permit application reasonable?
(b)
Did the officer breach procedural fairness by
not calling the applicant’s parents to attend an oral interview?
[7]
At the hearing, the Court ordered that the style
of cause be amended to designate the Minister of Citizenship and Immigration as
the respondent.
Was the officer’s
decision to refuse the study permit application reasonable?
[8]
A foreign national
seeking to enter Canada is presumed to be an immigrant. Subsection 11(1) of the IPRA states that a foreigner must
obtain a visa before entering Canada. Moreover, subparagraph 20(1)(b) and subsection
22(1) of the IRPA provide that a foreigner must demonstrate that he or she will
leave Canada at the end of his or her authorized stay. The burden is on the
applicant to do such a demonstration, and rebut the presumption by submitting convincing
evidence. To study in Canada, a foreign national needs to apply for a study
permit (subsection 30(1) of the IRPA and section 213 of the IRPR).
[9]
The standard of review applicable to the merits
of the impugned decision is reasonableness, as it calls for a review of the
visa officer’s findings of fact with respect to the evidence provided in
support of the work permit application (see Dunsmuir v New Brunswick,
2008 SCC 9 at para 51 [Dunsmuir]). Indeed, an officer’s assessment
of whether to grant temporary resident status is an exercise of discretion that
attracts a high degree of deference (see Dunsmuir at para 51).
[10]
On its face, the impugned decision is
transparent and intelligible. The officer’s reasons to refuse the present application
read as follows:
PA LoA to attend school in Canada. State he will reside with his
aunt who will cover all costs and be his custodian. State aunt is JOY CHINYERE
OCHIABOUTCI (UCI: 3819 7128) but no evidence of relationship provided other
than affidavits from her and parents. Mother states aunt has been involved in
his upbringing but no evidence of this provided. Family state schools are not
good in Nigeria and expensive and aunt willing to pay for him to attend school
in Canada; however note schools are available in Lagos and are less expensive
than bringing the applicant to Canada. Concerned that applicant is so young.
Concerns as to whether it is in his best interest to be separated from his
parents to live in a country where he has never visited and to stay with
someone for whom there is no evidence (other than the affidavits) that he is
related or has a relationship. Having reviewed the application, I am not
satisfied that intended studies in Canada are not principally for the purpose
of gaining entry to Canada. Application refused.
[11]
Firstly, the applicant submits that the officer
made a reviewable error in finding that the nature of the relationship between
the applicant and the custodian in Canada had not been adequately established.
The applicant claims having submitted strong evidence in this regard. It showed
the custodian’s relationship with the applicant, strong financial interest and
history of support. He further claims Ms Ochiabuto met all Immigration,
Refugees and Citizenship Canada’s requirements for custodians of minor
applicants studying in Canada. It was therefore unreasonable for the officer to
question their relationship. Indeed, there is no statutory requirement to prove
the relationship between the minor and the custodian. The applicant submits he
complied with all requirements of the IRPA: he submitted a letter of admission,
evidence of financial means and resources, and evidence of family ties in
Nigeria. He claims the officer failed to take into consideration the strength
of his family ties and the affidavit evidence submitted.
[12]
Secondly, the applicant submits that the officer
failed to consider relevant factors on evidence in questioning the true purpose
for making a visa application to study in Canada. While the applicant
recognizes that the officer was allowed to consider the availability of less
costly programs, he claims having submitted objective evidence on poor school
conditions in Nigeria and the comparative value of the Canadian educational program.
He further submits it is not the officer’s role to assess the value of an
education program. The applicant had strong ties with Nigeria. He is still a
minor and is the only child of the two parents living in Nigeria. Thus, the
officer acted unreasonably when he concluded that the applicant was not a bona
fide student and would not leave Canada at the end of the authorized stay
period.
[13]
The respondent reminds the Court that an
officer’s assessment of whether to grant temporary resident status is an
exercise of discretion that attracts a high degree of deference. The impugned decision
to refuse the permit falls within the range of those reasonably open to him on
the facts and law. The respondent claims it was not unreasonable to conclude
that the applicant provided insufficient evidence of his relationship with the
aunt: there was no birth certificate, no evidence of their actual relationship
– just financial evidence and the designation as beneficiary, which could have
been made just before filing the demand. The reasons show that all relevant evidence
was considered, including the ties with Nigeria, and the young age of the
applicant. The onus was on the applicant to come with his best case. The Court
should not intervene simply because the applicant disagrees with how the
officer weighed the different factors or evidence submitted by the applicant.
Finally, it was reasonable to consider the lack of travel history and the fact
the applicant was never away from his parents.
[14]
Overall, I find that the officer’s decision was
reasonable. I completely agree with the respondent’s submissions. Indeed, the
Court owes great deference to the officer’s assessment of the evidence.
Although brief, his reasons are sufficient to show that he carefully weighed
the evidence submitted, and allow the Court to understand how his decision
falls within the range of possible outcomes. The Court’s role is not to
reassess the officer’s findings of fact, but rather to see whether his reasons
generally support his conclusions. The onus was on the applicant to satisfy the
officer that he will leave at the end of the period. The officer’s findings should
not be read microscopically. It was not necessary for the officer to refer to
every specific aspect of the application in his decision.
[15]
Firstly, the officer had to be satisfied that,
as a minor child who will travel to Canada to study, the applicant will be
under the care of a custodian. Once the aunt was designated by the applicant’s
parents as the custodian of the applicant in Canada, the officer could
reasonably take issue with the nature and extent of their relationship. The
officer’s assessment of the evidence in this respect is not unreasonable. He
clearly mentions having considered the affidavits, but concluded they were
insufficient. The evidence only shows Ms Ochiabuto’s financial means and the
applicant as beneficiary. The designation could very well have been made the
day before the application. Apart from the affidavit, nothing attests of the
nature or strength of the relationship between the custodian and the applicant.
[16]
Secondly, the officer’s appreciation of the
applicant’s likelihood to leave Canada is also based on evidence. Again, this
assessment is highly discretionary. The officer is allowed to consider and
weigh in different factors. As long as his appreciation is based on the
evidence, and not on generalizations and stereotypes, the decision will be
reasonable. In the case at bar, the applicant simply disagrees with the
officer’s appreciation of the facts. While it seems odd to think that parents
would send their child alone to Canada – his return to his family would seem
likely – at the same time, the evidence could lead the officer to infer that
the parents were so inclined to improving the child’s life conditions that they
would send him to Canada indefinitely. The officer was allowed to doubt the
sincerity of a project to send a twelve year old alone, with a more or less
distant relative, to Canada for only one year of high school. It was also reasonable
for the officer to consider the availability of schools in Nigeria as one
factor in his assessment of the applicant’s visa project. Although I do not necessarily
agree with all his findings, I cannot say the refusal to grant the application is
not supported by the evidence or clearly irrational or arbitrary in the
circumstances.
Did the officer breach
procedural fairness by not calling the applicant’s parents to attend an oral
interview?
[17]
The applicant readily recognizes that there is
no statutory right to an oral interview. Nevertheless, the applicant submits
that the officer should have permitted the applicant’s parents to participate
in an oral interview. By failing to do so, he breached the applicant’s right to
procedural fairness. In this case, the officer formed a strong opinion on the
applicant’s likelihood to stay in Canada, while at the same time questioning
his relationship with the custodian. The officer could not disregard the
applicant’s statutory declaration that he or she will not overstay, or the uncontradicted
statements made in sworn affidavits by the parents and the aunt, without first
convoking the parents at an oral interview. The applicant therefore submits
that an oral interview with the applicant’s parents would have been useful to
alleviate the officer’s concerns.
[18]
The respondent submits that there is no
obligation to grant an oral interview. Some factors indeed limit the content of
the procedural fairness duty in visa application cases: the absence of a legal
right to a visa, the burden of proof on the applicant, and the low impact on
the individual of a visa application refusal. In addition, such a right to
respond is usually available only when the officer has information of which the
applicant is not aware. Where a concern arises directly from regulations’
requirements, a visa officer has no duty to provide such a hearing. As such,
the respondent concludes that the officer has no obligation to bring his concerns
to the attention of the applicant and allow a response. He was merely assessing
the information provided to him, as he must do to reach a decision. The case
law does not support the claim made by the applicant that an oral interview was
necessary in these circumstances (see Huang v Canada (Minister of
Citizenship and Immigration), 2012 FC 145 at para 7).
[19]
I find that the decision was made in accordance
with procedural fairness. I endorse the arguments of the respondent. There was
no obligation on the part of the visa officer to grant the applicant an oral
interview, and despite the arguments made by the applicant’s learned counsel, I
am not able to see this case as one falling under some recognized exception.
All the cases cited by the applicant are clearly distinguishable and not
applicable here. Indeed, several cases have confirmed that the officer is under
no duty to provide a hearing when he is simply drawing conclusions from the
evidence submitted. In addition, 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.
Conclusion
[20]
For the above reasons, the present application
is dismissed. There is no question of general importance warranting
certification.
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