Docket: IMM-1438-17
Citation:
2017 FC 992
Ottawa, Ontario, November 3, 2017
PRESENT: The
Honourable Mr. Justice Pentney
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BETWEEN:
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SALAH AZIZ
MOHAMMED
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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
[1]
This is an application for judicial review of a
decision by a Visa Officer (Officer) denying the Applicant’s request for a
Temporary Resident Visa (TRV). This application is brought pursuant to s 72 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
I.
Background
[2]
The Applicant is a citizen of Iraq who applied
for a TRV on March 15, 2017. His application stated that the purpose of the
trip was “visiting Canada to conduct Business
Opportunities”, and a cover letter prepared by the Applicant’s counsel
added that this was to be “an exploratory visit to
Canada to see business opportunities since he is interested in applying for an
investment program in the near future.” The application states that the
Applicant owns a successful business in Iraq, and that he had previously
travelled to other countries, including Canada. Further, the application states
that while most of his immediate family lives in Iraq, he has one brother
located in Sweden and another living in Canada. He also provided information
regarding his business as well as a letter from a bank.
II.
Decision Under Review
[3]
On April 11, 2017, the Officer rejected the
application on the basis that the Applicant had not satisfied the statutory
requirements of IRPA and the Immigration and Refugee Protection
Regulations, SOR/2002-227 [IRPR] which put the onus on the applicant
for a TRV to establish that they “will leave Canada by
the end of the period authorized for their stay” (see s 20(1)(b), IRPA
and s 179(b), IRPR). The Officer notes three concerns as the basis for
the refusal: the Applicant’s family ties in Canada and Iraq, the purpose of the
proposed visit, and whether the Applicant had sufficient funds for the trip. In
the Global Case Management System (GCMS) notes, the Officer states: “Given the current economic and security environment in
country of residence strong push pull factors to remain in Canada. I am not
satisfied applicant is a bona fide visitor who will leave Canada at end of
authorized stay. Refused.”
III.
Issues and Standard of Review
[4]
There are only two issues here:
- Was there a
denial of procedural fairness because the Officer relied on extrinsic
evidence but did not provide the Applicant with an opportunity to rebut
that evidence?
- Is the decision
reasonable, or did the Officer simply pay “lip
service” to the evidence and the legal requirements?
[5]
The standard of review regarding procedural
fairness is correctness (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43), and the standard of review regarding the decision is
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 53 [Dunsmuir];
Shakeri v Canada (Citizenship and Immigration), 2016 FC 1327 at para 10;
Singh v Canada (Citizenship and Immigration), 2017 FC 894 at para 15).
Previous decisions have found that, in light of the volume of applications
considered by visa officers abroad and the nature of the interests affected by
these decisions, the duty to provide reasons is “at the
lower end of detail and formality”: Wang v Canada (Citizenship and
Immigration), 2006 FC 1298 at para 20; Bahr v Canada (Citizenship and
Immigration), 2012 FC 527 at paras 32-33 [Bahr]; AloOmari v
Canada (Citizenship and Immigration), 2017 FC 727 at para 26.
IV.
Analysis
A.
Was there a denial of procedural fairness?
[6]
The Applicant submits that the Officer’s
comments in the GCMS notes about the “push/pull”
factors indicates that there was a reliance on extrinsic evidence, and that the
failure to advise the Applicant of this evidence and to provide an opportunity
to comment on it amounts to a denial of procedural fairness. The Applicant
refers to the case of Rukmangathan v Canada (Citizenship and Immigration),
2004 FC 284 [Rukmangathan] in support of this argument.
[7]
It is settled law that visa officers are
entitled to rely on their personal knowledge of the local conditions in
assessing evidence and documents provided in support of visa applications. In Bahr
Justice James Russell stated:
[42] So it seems to me that what applicants
should expect is that the onus is upon them to make a convincing case and that,
in assessing their applications, visa officers will use their general
experience and knowledge of local conditions to draw inferences and reach
conclusions on the basis of the information and documents provided by the
applicant without necessarily putting any concerns that may arise to the
applicant. The onus is upon the applicant to ensure that the application is
comprehensive and contains all that is needed to make a convincing case.
[8]
Furthermore, in Rukmangathan Justice Richard
Mosley found that a visa officer has a duty to advise an applicant of “concerns about the credibility, accuracy, or genuine nature
of the information he submitted” (para 22). This was elaborated upon in Hassani
v Canada (Citizenship and Immigration), 2006 FC 1283 at para 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, as was the case in Rukmangathan,
and in John and Cornea cited by the Court in Rukmangathan,
above.
[9]
More recent decisions confirm this approach: Madadi
v Canada (Citizenship and Immigration), 2013 FC 716 at para 6 citing Perez
Enriquez v Canada (Citizenship and Immigration), 2012 FC 1091 at para 26; Lazar
v Canada (Citizenship and Immigration), 2017 FC 16 at para 21.
[10]
There is no evidence that the Officer relied on
extrinsic evidence other than generally available information about the
situation in Iraq at the time of the application, a matter which falls within
the core of the expertise of a visa officer. In this case, in light of the
recent situation in Iraq, it was entirely reasonable to expect an applicant for
a TRV to anticipate this sort of concern. The Applicant here cannot claim to
have been taken by surprise that the Officer would take into consideration the
economic and security situation in Iraq.
[11]
I find that there was no denial of procedural
fairness because the Officer did not refer to extrinsic evidence of the sort
that might have given rise to the obligation to provide a fairness letter to
the Applicant.
B.
Is the decision reasonable?
[12]
The Applicant argues that there are several
flaws in the Officer’s decision: it focuses on only a few of the relevant
factors; it appears to ignore or misconstrue the relevant evidence in regard to
the factors that were considered; and it is so short and vague that it
indicates that the Officer was only paying “lip
service” to the relevant criteria and considerations.
[13]
There are several guideposts for this analysis
which are clearly established: (1) there is a legal presumption according to
which any person seeking to enter Canada is presumed to be an immigrant; it is
up to the applicant to rebut this presumption: Danioko v Canada (Citizenship
and Immigration), 2006 FC 479 at para 15; (2) it is not for the Court to
re-weigh the evidence; (3) the Officer is presumed to have reviewed all of the
evidence unless the contrary is shown (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ No 598 (QL) (FCA)) and is not
required to make reference to every document submitted (Hassan v Canada
(Minister of Employment and Immigration) (1992), 147 NR 317, [1992] FCJ No
946 (QL) (FCA); Zhou v Canada (Citizenship and Immigration), 2013 FC 465
at para 20; (4) the Officer’s reasons for decision include the form and the
letter, as well as the GCMS notes prepared for the case.
[14]
In assessing the adequacy of these reasons I
must be guided by the teachings of the Supreme Court of Canada on the subject:
reasons demonstrate the “justification, transparency
and intelligibility” of the decision (Dunsmuir, para 47), and “if the reasons 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, the Dunsmuir
criteria are met” (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16 [Newfoundland
Nurses]).
[15]
Here, the Applicant points to the form which
accompanied the decision letter, in which the Officer notes only three concerns
(out of the nine areas listed on the form), together with the “push/pull” factors from the GCMS notes. The Applicant
argues that the evidence submitted on the three areas of concern to the Officer
actually should have been found to support the application.
[16]
In regard to family ties in Canada and Iraq, the
Applicant points to the fact that the majority of immediate family members
currently reside in Iraq, while one brother lives in Sweden and another in
Canada. The Applicant argues that this evidence does not support a conclusion
that he will not depart from Canada at the end of the time permitted by the
TRV, and seeks to bolster this conclusion by referring to other information
that was before the Officer, including the Applicant’s prior travel history of
travel outside of Iraq. This history demonstrates that the Applicant has left
Iraq and returned, including a recent trip to Canada.
[17]
In relation to the concern about the purpose of
the visit, the Applicant points to the letter of invitation that was before the
Officer, which makes clear that the trip was planned, in part, as an
opportunity to explore business opportunities. The Applicant points out that
both IRPA and prior case-law indicate that dual purposes for trips are
permissible; indeed, otherwise it would be difficult for many proposed
investors or business professionals to establish the ties to Canada that they
need to support applications under other immigration streams.
[18]
Finally, the Applicant says that the Officer’s
doubts about whether he had sufficient funds for this visit are not reasonable
because evidence provided in support of the application included a letter from
a bank, corporate information about the registration and operation of the
company he owns in Iraq, as well as the documents which showed that the flight
and hotel room had already been paid for by the Applicant.
[19]
The Respondent argues that the decision of a
visa officer deserves great deference, and that what the Applicant is asking
for here is essentially a re-weighing of the evidence. In relation to the
argument about the form, the Respondent notes that the decision documents from
the Officer indicate that a number of factors may have been considered in
making the decision, including travel history, purpose of the trip, ties to
country of residence, ability to pay for the trip and whether the person would
likely leave Canada at the end of the trip. As to the fact that only three of
the nine boxes on the form were marked, the Respondent notes that the form
itself states: “Please note that only the grounds that
are checked off apply to the refusal of your application.” Thus the
other factors were not the basis for the refusal. The fact that the Officer
only checked three boxes is not an indication that the others were not
considered.
[20]
Here, the reasons provided by the Officer are “reasonable, intelligible and justifiable” in regard
to the evidence and the law. Although the reasons provided by the Officer are
not extensive, they provide a clear indication of the basis for the decision: Newfoundland
Nurses, para 16. There is no indication that relevant evidence was ignored
and the fact that another decision-maker might have reached a different
conclusion is not a basis to overturn the decision.
[21]
The record indicates that the Officer reviewed
the information provided by the Applicant which gave rise to a number of
concerns which the Officer points to as a basis for the denial of the TRV. The
general economic and security context in Iraq at the time of the application is
obviously a relevant consideration and within the general knowledge of the Officer.
The financial information provided was a letter from a bank, but no account
statement was included to substantiate the Applicant’s financial situation. At
the time of the application, the Applicant was a single unmarried individual,
with family members in Iraq, Sweden and Canada. The stated purpose of the trip
was to explore business opportunities, but there is no supporting information
regarding the nature of these opportunities.
[22]
Overall, it is evident that there was
information which could have supported the granting or the denial of the TRV.
The onus was on the Applicant to provide information to support the application.
The decision was made based on the Officer’s review of the information and the
application of the expertise and judgment of the Officer. That decision was not
unreasonable.
V.
Conclusion
[23]
Having considered the record and the arguments
of the parties, I find no basis to overturn the decision of the Officer.
[24]
The Applicant submitted that a question of
general importance should be certified, regarding whether officers dealing with
TRV applications have an obligation to provide specific reasons demonstrating
how economic or security conditions in the country affect the situation of the
applicant. The Respondent objected, on the basis that this case does not raise
new issues which have not already been fully canvassed in prior cases. I agree
with the Respondent – no question for certification arises here.
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