Docket: IMM-840-17
Citation:
2017 FC 1046
Ottawa, Ontario, November 16, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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JOHN PAUL
IGNACIO CAYANGA
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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]
The Applicant, John Paul Ignacio Cayanga, is a
32 year old citizen of the Philippines who applied for a study permit and
temporary resident status in December 2016, intending to study Hotel Operations
Management at Centennial College in Toronto, Ontario. In a letter dated
February 9, 2016, an Immigration Officer at the Embassy of Canada Visa Section
in Makati City, Philippines, refused the Applicant’s application because the
Officer was not satisfied he would leave Canada upon completion of his studies.
The Applicant has now applied under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27, for judicial review of the Officer’s
refusal of the Applicant’s application for a study permit.
I.
Background
[2]
The Applicant’s mother, father, and only sibling
are Canadian citizens who live in Toronto. He has been married for
approximately five years and has no children. In 2006, he obtained a Bachelor
of Science in Hotel and Restaurant Management from the Lyceum of the
Philippines University. Following his graduation, the Applicant completed a
six-month internship at Raffles Hotel in Singapore. He then worked for several
years as a galley utility for Costa Cruises before returning to the Philippines
in 2010 to act as a caregiver for a family member. The Applicant says he wished
to upgrade his credentials and level of education in order to work in the
competitive hospitality industry of the Philippines.
[3]
In 2011, the Applicant applied for a study
permit and temporary resident status in Canada, but this application was
refused. In December 2016, the Applicant applied again for a study permit and
temporary resident status. He provided evidence of his acceptance to Centennial
College and indicated his reasons for choosing that institution in a cover
letter. The Applicant’s parents and brother provided statutory declarations and
documentary evidence indicating their intention and ability to provide
financial support to the Applicant during his studies.
II.
The Officer’s Decision
[4]
The Officer stated in the refusal letter of
February 9, 2017, that the Applicant had “not satisfied
me that you would leave Canada at the end of your stay.” In making this
determination, the Officer considered several factors such as the Applicant’s
travel history, his family ties in Canada and in the Philippines, the purpose
of his visit, and his employment prospects in the Philippines. The Global Case
Management System notes show the Officer’s reasons for refusing the Applicant’s
application:
Prev. SP refusal (2011). Applying to take
Hospitality – Hotel Operations Mgt. program. LOA indicates 448-hour work
practicum Parents to cover costs. Both parents and only sibling in Canada. PA
is married, no dep child. I note unused US visa; travel history limited to
previous overseas employment. Study plan seen. Unclear why PA is taking program
at this time or why a similar program would not have been pursued until this
time locally or regionally at less cost and higher convenience given the costs.
While PA has related educ gained over 10 years ago, unclear how program is
relevant to long-term experience (caregiver of family member since Jun 2010),
galley utility (Jan 2007 to May 2010). No docs provided to support declared
activity. Presents weak econ ties to home country, strong family ties in
Canada. Based on info and docs on file, I am not satisfied the applicant is
sufficiently established in home country, to compel departure from Canada after
a period of authorized stay. Appln refused
III.
Issues
[5]
There is only one issue which requires the Court’s
consideration – that is, was the Officer’s decision reasonable?
IV.
Analysis
A.
Standard of Review
[6]
Absent any allegation of procedural unfairness,
a visa officer’s decision on a study permit application is reviewed on the
reasonableness standard (see, e.g., Patel v Canada (Citizenship and
Immigration), 2009 FC 602 at para 28, 344 FTR 313; Gu v Canada
(Citizenship and Immigration), 2010 FC 522 at para 14, [2010] FCJ No 624 [Gu];
and Li v. Canada (Citizenship and Immigration), 2008 FC 1284 at paras
14-16, 337 FTR 100 [Li].
[7]
Under the reasonableness standard, the Court is
tasked with reviewing a decision for “the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether 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 at para 47,
[2008] 1 S.C.R. 190. Those criteria are met 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”: Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16,
[2011] 3 S.C.R. 708 [Newfoundland Nurses]. Additionally, “as long as the process and the outcome fit comfortably with
the principles of justification, transparency and intelligibility, it is not
open to a reviewing court to substitute its own view of a preferable outcome”;
and it is also not “the function of the reviewing court
to reweigh the evidence”: Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paras 59 and 61, [2009] 1 S.C.R. 339.
B.
Was the Officer’s decision reasonable?
[8]
The Applicant contends that, since the Officer
had seen his study plan, it was unreasonable for the Officer to consider why a
similar program would not have been pursued locally or regionally at less cost
and higher convenience. The Applicant says, in view of Zuo v Canada
(Citizenship and Immigration), 2007 FC 88 at para 23, 155 ACWS (3d) 425 [Zuo],
cost is only one of many possible motivations for choice of an educational
program. According to the Applicant, the Officer relied on information not
contained in his application and the Officer had an obligation to confront the
Applicant with this information. The Applicant argues that the Officer was
obligated to provide him with an opportunity to respond to the lack of evidence
to support his declared program of study.
[9]
The Applicant further contends that the
Officer’s conclusion that he is not sufficiently established in the Philippines
“to compel departure from Canada” fails to
consider that a temporary resident may extend or maintain their status in
Canada and hold dual intent to become a permanent resident. In this case, the
Applicant says, he stated his desire to return to the Philippines to obtain a
higher degree of employment. According to the Applicant, there must be an
objective reason to question an applicant’s motivations, and temporary resident
visas are premised on the idea that individuals may come to Canada to improve
their economic situation. In the Applicant’s view, the Officer’s finding that
he would not return to the Philippines is incomprehensible and erroneous based
on the evidence submitted. The Officer’s decision is unreasonable, the
Applicant says, “because it relies on the very factor
which would induce someone to come here temporarily in the first place as the
main reason for keeping that person out” (Cao v Canada (Citizenship
and Immigration), 2010 FC 941 at para 11, 193 ACWS (3d) 257).
[10]
The Respondent notes that the onus is always on
applicants to meet the evidentiary burden to satisfy a visa officer that they
will leave Canada following their authorized stay. In the Respondent’s view,
there was no obligation on the Officer to grant the Applicant an opportunity to
respond to the Officer’s concerns. According to the Respondent, procedural
protections are relaxed in the context of student visa applications. The
Respondent maintains that where an officer’s concerns arise from statutory
requirements or an applicant’s material, there is no obligation to raise those
concerns with an applicant. An applicant is obligated, the Respondent says, to
anticipate such concerns; the onus cannot shift to the decision-maker if there
are evidentiary concerns.
[11]
The Respondent maintains that the Applicant
failed to displace the presumption that a foreign national seeking to enter
Canada is an immigrant. The Respondent notes that the Officer considered all relevant
factors, and while an applicant seeking temporary resident status may have a
dual intent of subsequently applying for permanent residence status, the
Officer made a reasonable determination based on the evidence submitted that
the Applicant’s only intent was to remain in Canada.
[12]
Generally speaking, an applicant will not be
granted an interview in the context of a student visa application unless an
officer has relied on extrinsic evidence or otherwise forms an opinion which an
applicant had no way of anticipating (see, e.g., Gu at paras 23-24; Campbell
Hara v Canada (Citizenship and Immigration), 2009 FC 263 at para 23, 341
FTR 278; Li at para 35). In my view, nothing in the Officer’s reasons
necessitated an interview or obliged the Officer to confront the Applicant with
information the Applicant says was not contained in his application. The
Officer in this case did not rely upon any extrinsic evidence or otherwise form
an opinion which the Applicant had no way of anticipating.
[13]
It is not unreasonable for a visa officer, as
the Officer did in this case, to consider the availability of similar programs
offered elsewhere at a lower cost; this is “simply one
factor to be considered by a visa officer in assessing an applicant’s motives
for applying for a study permit” (see Zuo at para 23). Similarly,
it is not unreasonable for a visa officer, as the Officer did in this case, to
consider other factors such as the Applicant’s family ties in Canada and his
country of residence, the purpose of his visit, his employment prospects in the
Philippines, and his travel history.
[14]
Newfoundland Nurses dictates that the Officer’s reasons must be sufficiently clear to
allow the Court to understand why the Officer reached the decision he or she
did. It is not this Court’s function to reweigh the evidence that was before
the Officer. The Officer is presumed to have considered all of the evidence in
making his or her decision. Although the Officer’s reasons for the decision in
this case are brief, they are nonetheless sufficient and reasonable because
they allow the Court to know what factors the Officer considered in making the
decision, one which is well within the range of acceptable outcomes based on
the facts and the law. The Court sees no reason to intervene and set the Officer’s
decision aside. This application for judicial review will be dismissed.
V.
Conclusion
[15]
For the reasons stated above, this application
for judicial review is dismissed. The Officer’s decision in this case was
reasonable because it is transparent and intelligible and falls within the
range of possible and acceptable outcomes defensible in respect of the facts
and law.
[16]
Neither party proposed a question of general
importance for certification; so, no such question is certified.
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