Docket: IMM-318-17
Citation:
2017 FC 1001
Ottawa, Ontario, November 6, 2017
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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GUNES FIDAN
PENEZ
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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]
The applicant, Ms. Gunes Fidan Penez, is a
citizen of Turkey who holds a degree in tourism. In November 2016, she applied
to Capilano University in Vancouver, British Columbia, to study Tourism
Management for International Students. She was accepted into the program and paid
the $5,000 tuition fee deposit. She then applied to
Citizenship and Immigration Canada [CIC] for a study permit.
Ms. Penez was meant to start classes in early January 2017, but her application for a study permit was refused in late December 2016 by
an immigration officer [Officer] at the Canadian Embassy
in Ankara, Turkey. The Officer was not convinced that Ms. Penez was seeking to enter Canada for the sole purpose of
studying and that she would leave Canada at the end of
her stay. Ms. Penez reapplied for a study permit two days later, providing the
Officer with an additional letter setting out her intentions, but her
application was again refused for the same reasons on January 4, 2017
[Decision].
[2]
Ms. Penez has filed an application for judicial
review of the Officer’s Decision. She argues that the Decision
is unreasonable because it was based on findings of fact unsupported by the
evidence. She claims that the Officer ignored or failed to consider relevant
evidence, notably her statement that she intended to go back to her country of
origin after her studies. She further submits that the Officer breached his
duty of procedural fairness by failing to send a procedural fairness letter and
to allow her to respond to his concerns. She asks this Court to quash the Decision
and to send it back for redetermination by a different immigration officer.
[3]
This application raises two issues: 1) whether the
Officer’s Decision denying the study permit sought by Ms. Penez unreasonable;
2) whether the Officer breach the principles of natural justice by failing to send
a procedural fairness letter and to give Ms. Penez an opportunity to respond to
his concerns before refusing her study permit application.
[4]
For the following reasons, Ms. Penez’s application
for judicial review will be granted. Having considered
the evidence before the Officer and the applicable law, I conclude that the Officer’s Decision is unreasonable, as the Officer
ignored evidence directly contradicting his conclusions and no evidence supported
a number of his factual findings. This is sufficient, in my opinion, to push
the Officer’s Decision beyond the range of possible, acceptable outcomes based
on the facts and the law, and to justify this Court’s
intervention. I must, therefore, send the matter back
for redetermination. However, I agree with the Minister
that the application for judicial review does not raise
procedural fairness issues.
II.
Background
A.
The Decision
[5]
The Officer’s Decision is brief and takes the
form of a standardized letter used by CIC where visa officers simply check the
relevant boxes. According to the Decision, Ms. Penez was denied a study permit
pursuant to subsection 11(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] and paragraph 216(1)(b) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations], on the basis that she
did not satisfy the Officer that she “would leave
Canada at the end of [her] stay”.
[6]
To reach the Decision that Ms. Penez would not
leave Canada, the Officer checked off one single factor on the standard form
used by CIC, namely the purpose of Ms. Penez’s visit. None of the other factors
listed under the heading “not satisfied that you would
leave Canada at the end of your stay” was checked by the Officer, such as
“family ties in Canada and in country of residence”,
“employment prospects in country of residence”,
or “current employment situation”. In the
Decision, the Officer however identified “other reasons”
in support of his Decision, and stated that Ms. Penez’s proposed studies were
not reasonable in light of her “qualifications,
previous studies, employment, level of establishment, other educational
opportunities available or [her] future prospects and plans”.
[7]
The Officer’s Global
Case Management System [GCMS] notes dated January 4, 2017 (which form part of
the Decision) provide further light on the reasons for the Officer’s refusal.
They indicate that the Officer believed that Ms.
Penez’s purpose for entering Canada did not seem reasonable in the context of
her background. In particular, the Officer noted that Ms. Penez appeared to
have been unemployed from 2008 to 2014 and held irregular employment since
2014. The Officer further noted that Ms. Penez had provided no explanation as
to why she intended to pursue studies at a “lower level”
than the diploma she had already obtained in the same field of study. It is useful to reproduce the GCMS notes in
their entirety. They state the following:
Application
reviewed. Previous refusal noted. 31 year old married Turkish national
travelling to Canada to study for a tourism diploma. Applicant graduated in
2008 with a bachelor degree in tourism. No explanation on why she is pursuing
studies at a lower level than what she has already obtained. Appears to have
been unemployed from 2008 until 2014, and has been holding irregular employment
since 2014. Purpose does not appear to be reasonable in context of applicant’s
background. Not satisfied that the applicant is a genuine student. Application
refused.
[8]
As part of the process leading up to the
Decision, Ms. Penez had sent two motivation letters to the Canadian Embassy
officials. In the first motivation letter sent prior to the first decision of late
December 2016, Ms. Penez expressed interest in studying in Canada because it
would positively contribute to her career and help her achieve her goal of
managing her own hotel someday. In a second letter that followed the initial
refusal, she reiterated that she hoped to go into her own business in the
tourism sector and intended to return to Turkey. She claimed that her husband
had a good full-time job in Turkey and that her large family owned over a dozen
real estate properties in Turkey. In that second motivation letter, Ms. Penez
expressly indicated that she “fully intends to return
to Turkey after completing [her] studies in Canada”.
B.
The relevant provisions
[9]
The relevant provisions of the IRPA are
subsections 11(1) and 22(2), which provide that a person wishing to become a
temporary resident of Canada must satisfy an officer that “she or he meets the requirements of the Act” and that
“an intention by a foreign national to become a
permanent resident does not preclude them from becoming a temporary resident if
the officer is satisfied that they will leave Canada by the end of the period
authorized for their stay”.
[10]
Paragraph 216(1)(b) of the Regulations further
requires a study permit applicant to establish that he or she “will leave Canada by the end of the period
authorized for their stay.” Thus, it is well
accepted and clear that an applicant for a study permit bears the burden of
satisfying the visa officer that he or she will not remain in Canada once the
visa has expired (Solopova v Canada (Citizenship and Immigration), 2016
FC 690 [Solopova] at para 10; Zuo v Canada (Citizenship and
Immigration), 2007 FC 88 at para 12; Zhang v Canada (Minister of
Citizenship and Immigration), 2003 FC 1493 [Zhang] at para 7). This
Court has taken the view that “[t]he
visa officer has wide discretion in assessing the evidence and coming to a decision.
However, the decision must be based on reasonable findings of fact” (Zhang at para 7).
C.
The standard of review
[11]
There is no dispute that, when reviewing a visa officer’s factual assessment of an application
for a student visa and the officer’s belief that an applicant will not leave
Canada at the end of his or her stay, the standard of review is reasonableness
(Solopova at paras
12-13; Li v Canada (Citizenship and Immigration),
2008 FC 1284 [Li] at para 15). Such a decision by a visa officer is “an administrative decision
made in the exercise of a discretionary power” (My Hong v Canada
(Citizenship and Immigration), 2011 FC 463 at para 10). As a discretionary
decision based on factual findings, it is entitled to considerable deference in
view of the visa officer’s special expertise (Obeng v Canada (Citizenship
and Immigration), 2008 FC 754 at para 21).
[12]
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 decision-maker’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). 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 and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses]
at para 17).
[13]
Turning to the principles
of natural justice and procedural fairness issues, they are to be reviewed according
to the correctness standard (Mission Institution v Khela, 2014 SCC 24 at
para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 43; Sketchley v Canada (Attorney General), 2005 FCA 404 at para
53). This requires the Court to determine whether the process followed achieved
the level of fairness required by the circumstances of the matter (Suresh v
Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 115).
Therefore, the question raised by the duty to act fairly is not so much whether
the decision was “correct”, but rather whether
the process followed by the decision-maker was fair (Aleaf v Canada
(Citizenship and Immigration), 2015 FC 445 at para 21; Makoundi v Canada
(Attorney General), 2014 FC 1177 at para 35).
III.
Analysis
A.
Was the Decision reasonable?
[14]
The Minister argues that the Officer’s refusal
in this case was well within the range of acceptable outcomes, particularly given
the discretionary nature of visa decisions. The Minister contends that it was
perfectly reasonable for the Officer to refuse Ms. Penez a study permit in
light of Ms. Penez’s history of unemployment, in addition to the fact that she
was seeking to earn a tourism diploma when she already had a university degree
in tourism since 2008. Since it was Ms. Penez’s burden to demonstrate that she
would leave Canada at the end of her study period (Loveridge v Canada (Citizenship
and Immigration), 2011 FC 694 at para 20), the Minister submits that her
failure to rebut this presumption was well within the Officer’s purview to
assess, and that the Court should not revisit such factual findings.
[15]
I disagree with the Minister.
[16]
I do not dispute that the role of this Court is
not to reweigh the evidence on record and to substitute its own conclusions to
those of visa officers (Solopova at para 33; Babu v Canada
(Citizenship and Immigration), 2013 FC 690 at paras 20-21). Visa officers
have a wide discretion when rendering decisions under section 216 of the Regulations
and their decisions attract a high degree of deference from the Court given
their specialized expertise. If the decision falls within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law, it should not be disturbed (Dunsmuir at para 47). However, while a
reviewing court should resist the temptation to intervene and to usurp the
specialized expertise that Parliament has opted to confer to an administrative
decision-maker like the Officer, the Court cannot show “blind
reverence” to a decision-maker’s interpretation and assessment of the
evidence (Dunsmuir at para 48).
[17]
Under a reasonableness
review, it is the Court’s role to detect “irrationality
or arbitrariness of the sort that implicates our rule of law jurisdiction”, such as “the presence of
illogic or irrationality in the fact-finding process” or in the analysis, or the “making
of factual findings without any acceptable basis whatsoever” (Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113 at para 99; Dandachi v Canada (Citizenship and Immigration),
2016 FC 952 at para 23). This will normally be exceptional, but this is where
the Officer’s Decision regrettably falls in this case. I add that conducting such an exercise does not amount to a reweighing of the evidence
assessed by the Officer or of the various elements singled out in his Decision.
It is rather a process which leads me to a determination that the evidence
required to reasonably support the refusal decided by the Officer was absent.
[18]
I further acknowledge that a decision-maker is not required to refer to each and every detail supporting his or her
conclusion. It is sufficient if the reasons permit the Court to understand why
the decision was made and to determine whether the conclusion falls within the
range of possible, acceptable outcomes (Newfoundland Nurses at para 16).
But the standard of reasonableness also requires that the findings and overall
conclusion of a decision-maker withstand a somewhat probing examination (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]
at para 63). Where parts of the evidence are not considered or are
misapprehended, where the findings do not flow from the evidence and where the
outcome is not defensible, a decision will not withstand such probing
examination.
[19]
I find that the exercise of discretion by the
Officer in this case was arbitrary and fell outside the range of possible,
acceptable outcomes. There are three main reasons for that.
[20]
First, the Officer was unconvinced that, in
light of her long record of unemployment or checkered employment, and her
desire to pursue studies in the same field as the one in which she already held
a diploma, Ms. Penez was a genuine student. I fail to see what logic or
rational reasoning could lead the Officer to conclude that pursuing studies in
an area where Ms. Penez already had a diploma could be an indication that she
is not a genuine student. It is in fact the very opposite situation (i.e.,
applicants intending to study in areas totally disconnected from their
background and experience) that typically prompt visa officers to question the
true intent behind a study permit application.
[21]
Here, the Officer acknowledged that Ms. Penez’s proposed
studies in Canada were consistent with what she had previously studied in
Turkey. The Officer noted that Ms. Penez’s previous academic history did accord
closely with her intended field of study in Canada. On its face, the field of
study contemplated by Ms. Penez was complementary to her background and
experience. In the circumstances, it was not reasonable, in my opinion, for the
Officer to find that Ms. Penez was not a genuine student on the basis that she
was seeking to come to Canada to obtain a diploma in a field she already knew,
and that this could be an element for which to disqualify her.
[22]
I further agree with Ms. Penez that the Officer
failed to properly consider the rationale for Ms. Penez’s further tourism
studies. In her first motivation letter to CIC, Ms. Penez expressed interest in
studying “tourism management” in Canada because
it would positively contribute to her career and help her achieve her goal of
managing her own hotel someday. In her second letter that followed the initial
refusal, she reiterated that she hoped to go into her own business in the
tourism sector. In those circumstances, discounting Ms. Penez’s study permit
application because she intended to continue in a field she was already
familiar with was unreasonable.
[23]
Second, there was simply nothing on the facts before
the Officer to suggest that Ms. Penez would stay in Canada illegally at the end
of her authorized period of study. The evidence instead pointed to the
contrary. Twice, Ms. Penez explicitly stated in her second motivation letter
that she would leave at the end of her studies. In addition, her history showed
that she had already studied and worked abroad previously, and had indeed
returned to Turkey at the end of her stay. The Officer ignored that evidence in
his assessment.
[24]
While the reasons must not be read
hypercritically by a court, a decision-maker cannot act “without regard to the evidence” (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL)
[Cepeda-Gutierrez] at paras 16-17). Moreover, “the
more important the evidence that is not mentioned specifically and analyzed in
the [decision-maker]’s reasons, the more willing a court may be to infer from
the silence that the [decision-maker] made an erroneous finding of fact without
regard to the evidence” (Cepeda-Gutierrez at para 17).
[25]
It is well-recognized that a decision-maker is
generally not required to make an explicit finding on each constituent element
of an issue when reaching its final decision. Nevertheless, it is also clear
that contradictory evidence should not be overlooked. This is particularly true
with respect to a key element relied upon by the decision-maker to reach its
conclusion. I accept that a decision-maker is presumed
to have weighed and considered all the evidence presented to him or her unless
the contrary is shown (Florea v Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 (FCA) (QL) at para 1). I also agree that failure
to mention a particular piece of evidence in a decision does not mean that it was
ignored and does not constitute an error (Newfoundland Nurses at para 16; Cepeda-Gutierrez at paras 16-17). But, when an
administrative tribunal is silent on evidence clearly pointing to an opposite
conclusion and squarely contradicting its findings of fact, the Court may
intervene and infer that the tribunal overlooked the contradictory evidence
when making its decision (Ozdemir v Canada (Minister of Citizenship and
Immigration), 2001 FCA 331 at paras 9-10; Cepeda-Gutierrez at para
17). The failure to consider
specific evidence must be viewed in context and will lead to a decision being
overturned only when the non-mentioned evidence is critical, contradicts the
tribunal’s conclusion and the reviewing court determines that its omission
means that the tribunal disregarded the material before it. This is the case
here.
[26]
The Officer was faced with express statements
that Ms. Penez would leave at the end of her stay, coupled with the fact that
she had effectively done so in a previous analog situation. In those
circumstances, the Officer could not simply conclude that Ms. Penez would not
leave at the end of her studies without mentioning and discussing the
contradicting evidence on this issue. He had the obligation to provide an
analysis and explain why he preferred his conclusion over this evidence. He did
not.
[27]
Third, there was strictly no evidence on the
record to support the statement made by the Officer in his “other reasons” to the effect that Ms. Penez’s
proposed studies were not reasonable in light of her “level
of establishment, other educational opportunities available or [her] future
prospects and plans.” Further to my review of the record, I detect no
evidence related to the level of establishment of Ms. Penez, or to other
educational opportunities that might be available to her. As to her future
prospects and plans, the only evidence on the record referred to her admitted
intention to go back to Turkey. In other words, for three of the six factors
expressly singled out by the Officer in his “other reasons”
for finding that Ms. Penez was not a genuine student and would not leave at the
end of her stay, there is no evidence on the record to support them.
[28]
The case law recognizes that a finding for which
there is no evidence before the tribunal will be set aside on review because
such a finding is made without regard to the material before the tribunal (Canadian
Union of Postal Workers v Healy, 2003 FCA 380 at para 25). Findings for
which there is no evidence before the tribunal do run afoul of paragraph 18.1(4)(d)
of the Federal Courts Act, RSC 1985, c F-7 (Rahal v Canada
(Citizenship and Immigration), 2012 FC 319 at paras 34-40).
[29]
All of these errors suffice, in my view, to
bring the Decision beyond the scope of possible, reasonable outcomes. However
large the spectrum of possible, reasonable outcomes or the margin of
appreciation of the Officer can be, I find that the Officer’s finding on Ms.
Penez’s study permit tumbles outside of it.
[30]
I acknowledge that a decision need not be
comprehensive and that decision-makers can 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. However, decisions need to be comprehensible. The reasons must 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). When read as a whole, in
conjunction with the record, the reasons must allow the reviewing court to
conclude that they provide the justification, transparency and intelligibility
required of a reasonable decision (Agraira v
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53; Construction Labour
Relations v Driver Iron Inc, 2012 SCC 65 at para 3; Dunsmuir at para
47).
[31]
Here, they do not. The Officer’s reasons are incomprehensible
because there is no evidence on the record to support part of it, and they
appear to be entirely arbitrary in light of the evidence before the Officer. To
borrow the words of the Federal Court of Appeal in Delios Canada (Attorney
General), 2015 FCA 117 at para 27, the Officer’s decision in this case bears
several “badges of unreasonableness”. Further to a review of the record, I can
only conclude that the Officer ignored or misconstrued the evidence in
assessing Ms. Penez’s application, and in reaching his conclusions on Ms. Penez’ lack of a genuine intention to leave Canada at the
end of her studies.
[32]
Given my conclusion on the unreasonableness of
the Officer’s Decision, I do not have to deal with the procedural fairness
issue raised by Ms. Penez. However, in light of the extensive submissions made
by both parties on this front, I will make the following remarks.
[33]
Ms. Penez relies on the unreported decision in Yazdanian
v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 411 (QL) to
contend that the Officer was required to offer Ms. Penez the opportunity to
respond to concerns that could negatively impact her study permit application. Ms.
Penez argues that refusing to give notice to applicants deprives them of the
right to be heard and properly respond to concerns (Keymanesh v Canada (Minister
of Citizenship and Immigration), 2006 FC 641 [Keymanesh]; Beltran
Velasquez v Canada (Minister of Citizenship and Immigration), 2006 FC
1024). Had she been afforded that chance, claims Ms. Penez, she would have been
able to show the Officer that the program she sought to study in adapted very
well to her education and work backgrounds, as well as her future plans.
[34]
I do not agree with Ms. Penez on this point.
[35]
It is well-recognized that the onus is on visa applicants
to put together applications that are convincing, and that anticipate adverse
inferences contained in the evidence and address them; procedural fairness does
not arise whenever an officer has concerns that an applicant could not have
reasonably anticipated (Singh v Canada (Citizenship and Immigration), 2012
FC 526 at para 52).
[36]
Furthermore, the nature and scope of the duty of
procedural fairness are flexible and will vary depending on the attributes of
the administrative tribunal and its enabling statute, the specific context and
the various factual situations dealt with by the administrative body, as well
as the nature of the disputes it must resolve (Baker at paras 25-26; Varadi
v Canada (Attorney General), 2017 FC 155 at paras 51-52). The level and the
content of the duty of procedural fairness are determined according to the
context of each case. Its purpose is to ensure that administrative decisions
are made using a fair and open procedure, appropriate to the decision being
made and its statutory, institutional, and social context, with an opportunity for
those affected by the decision to put forward their views and evidence fully,
and to have them considered by the decision-maker (Baker at paras
21-22). It is well accepted that applicants for a study permit are owed a
degree of procedural fairness that falls at the low end of the spectrum. Procedural
fairness owed to a student permit applicant has been described as “relaxed” (Duc Tran v Canada (Minister of Citizenship
and Immigration), 2006 FC 1377 at para 2).
[37]
Visa officers are therefore generally not required
to provide applicants with opportunities to clarify or further explain their
applications (Onyeka v Canada (Citizenship and Immigration), 2009 FC 336
at para 57). The onus remains on applicants to provide all the necessary
information to support their application, not on the Officer to seek it out (Ismaili
v Canada (Citizenship and Immigration), 2012 FC 351 at para 18; Singh v
Canada (Citizenship and Immigration), 2010 FC 212 at para 11; Arango v
Canada (Citizenship and Immigration), 2010 FC 424 at para 15). Indeed, it
is well-established that the Officer had no legal obligation to seek out
explanations or more ample information to assuage concerns relating to Ms.
Penez’s study permit application by way of a ‘Procedural Fairness Letter’ or
any other means (Solopova at para 38; Mazumder v Canada (Minister of Citizenship
and Immigration), 2005 FC 444 at para 14; Kumari v Canada (Minister of Citizenship
and Immigration), 2003 FC 1424 at para 7). Imposing such an obligation on a
visa officer would amount to giving advance notice of a negative decision,
which has been rejected by this Court on many occasions (Dhillon v Canada
(Citizenship and Immigration), [1998] FCJ No 574 (QL) at paras 3-4; Ahmed
v Canada (Citizenship and Immigration), [1997] FCJ No 940 (QL) at para 8).
[38]
The responsibility lied with Ms. Penez to
satisfy the Officer that she would leave after her stay pursuant to section 11
of the IRPA and paragraph 216(1)(b) of the Regulations by means of the
documentation she provided; it was not up to the Officer to apprise her of
concerns that may have a negative bearing on the outcome of her application and
invite her to respond, or to provide the applicant with a running score at
every step of the application process (Solopova at para 41; Sharma v
Canada (Citizenship and Immigration), 2009 FC 186 at para 8; Fernandez v
Canada (Minister of Citizenship and Immigration), [1999] FCJ No 994 (QL) at
para 13).
[39]
The case law submitted by Ms. Penez’s counsel on
this point is unhelpful, as the cases cited do not refer to matters involving
study permits. Furthermore, they can be distinguished. In Keymanesh for
example, the applicant already had some legal status in Canada, unlike a visa
applicant who is seeking one. In that decision, Mr. Justice Barnes indeed specified
that the case was very fact-specific and that any duty to give notice and the
means by which notice is effected are contextual (Keymanesh at para 14).
[40]
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. Penez of deficiencies in her application. Contrary to Ms. Penez’s submissions, this is not a situation where
she had a right to be informed of the Officer’s concerns. But she was entitled
to a decision falling within the range of reasonableness, and this is where the
Officer failed.
IV.
Conclusion
[41]
The Officer’s refusal of Ms. Penez’s application
for a study permit did not represent a reasonable outcome based on the law and
the evidence before the Officer. On a standard of reasonableness, the Court
will intervene if the decision subject to judicial review does not fall within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law. This is the case here. Therefore, I must allow Ms. Penez’s application
for judicial review and return it for redetermination by a different
immigration officer.
[42]
Neither party has proposed a question of general
importance for me to certify. I agree there is none.
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