Docket: IMM-2687-17
Citation:
2017 FC 1105
[ENGLISH
TRANSLATION]
Ottawa, Ontario, December 5, 2017
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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GUSTAVO DE JESUS
GONZALEZ ZULUAGA
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OFELIA ROSA
GONZALEZ DIAZ
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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]
This is an application to consider the
reasonableness of an immigration officer’s refusal to issue super visas to the applicants.
For the reasons that follow, this application for judicial review is dismissed.
[2]
The applicants — husband and wife — are citizens
of Colombia. On March 30, 2017, they each sought a Temporary Resident Visa [TRV]
in the super visa category (parents and grandparents). The super visa allows
parents or grandparents of a Canadian citizen or permanent resident to obtain a
multiple entry visitor’s visa for a ten-year period, and to stay in Canada for a
two-year period for the first visit, without having to renew their status. That
is the main difference from a “regular” visa
that allows only one six-month visit at a time (see “Determine your eligibility
– Visit your children or grandchildren” (October 30, 2015), online: Government of
Canada <https://www.canada.ca/en/immigration-refugees-citizenship/services/visit-canada/parent-grandparent-super-visa/eligibility.html>
[Determine your eligibility]).
[3]
Bear in mind that for a regular TRV application,
the officer must assess whether the applicant has a bona fide intention to
visit temporarily and whether the applicant will leave at the end of the visit
(see paragraph 79(b) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations]). The officer might consider the applicant’s ties
with his or her country of origin; the purpose of the applicant’s visit; the
applicant’s family and financial situation; the economic stability and global
policy of the country of origin; the invitations made by the Canadian hosts;
etc. These last factors are indeed consistent with this Court’s jurisprudence (see,
for example, Duong v Canada (Minister of Citizenship and Immigration),
2003 FC 834 [Duong]).
[4]
In principle, an applicant (parent or grandparent)
is eligible for a super visa if the applicant satisfies the requirements for
temporary residence in Canada as a visitor and if the applicant provides
the additional documents required (see “Temporary residents: Super visa” (September
21, 2017), online: Government of Canada <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/super-visa.html>
[Temporary residents: Super visa]). A super visa applicant must satisfy certain
specific requirements, namely: prove that the child or grandchild in Canada
meets a minimum income threshold; provide a written statement from that child
or grandchild that he or she will give you financial support; have valid
Canadian medical insurance coverage for at least one year; and finally have an
immigration medical exam (see: Determine your eligibility; Temporary residents:
Super visa).
[5]
On April 20, 2017, both super visa applications
were refused. According to the standard form, the factors considered by the
officer were the family ties in Canada and in Colombia, as well as the personal
property and the financial situation. In the case of the female applicant, the
officer added travel history. Also, according to the notes in the GCMS, the
officer did not believe that the applicants were bone fide visitors who would
leave Canada at the end of their authorized stay.
[6]
The officer supports his findings with the
following factors:
•
The applicants have a daughter in Canada whose
arrival in Canada was irregular;
•
The applicants made various applications for
authorization to enter Canada and the United States, aside from their
sponsorship application in Canada. All these applications were refused. The
officer noted in passing that the female applicant has a history of misrepresentation.
She declares at this time a criminal record in the United States;
•
The applicants did not submit any banking
information, or evidence from their financial institution in Colombia;
•
They have weak family ties in Colombia: all
their children live in Canada or the United States. They did not make any
attempt to meet in another country where a visa would not be required;
•
The family has a history of irregular immigration
in Canada and we can infer from the refusals that this is also the case in the United
States; and
•
In terms of travel history, the male applicant
made only one international trip in the last decade, and the female applicant
none.
[7]
It is not disputed that the information on the
forms and the GCMS notes make it possible to understand the officer’s reasoning.
However, the applicants submit that the officer based his refusal on irrelevant
considerations. So, instead he should have considered the super visa eligibility
criteria contained in the Ministerial Instructions available on the Immigration,
Refugees and Citizenship Canada website, and as prescribed by subsection 15(4) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]). The
applicants provided the required documentation attesting that they satisfied
all the eligibility criteria: a pledge of financial support from their daughter;
proof of the financial ability of their daughter and her husband; proof of
relationship; proof of the family members’ Canadian citizenship; and proof of
insurance. Proof of family ties and their financial situation in Colombia is
not required under the Ministerial Instructions. The references to the female
applicant’s criminal record, to the immigration history, and to the family
member’s irregular arrival in Canada are also irrelevant considerations and
amount to imposing [translation] “double punishment” on the female applicant — since the
inadmissibility period has ended. Further, the officer erred in fact. In
particular, he mentions that all the children are in Canada or in the United
States, when in reality, two of the applicants’ six children live in Colombia. He
also failed to mention the land titles included in the record. The applicants’
counsel submits that these documents could have been filed in Spanish with the
embassy, and should have been considered. Finally, the refusal is contrary to
the spirit of the super visa regime. As such, it is normal that the applicants
who fall under this category would have children and grandchildren in Canada, as
well as weak ties with their country of origin based on their age. The refusal
to issue super visas is not an acceptable outcome.
[8]
For his part, the respondent submits that, other
than the published Ministerial Instructions, the applicants had to satisfy the IRPA
eligibility requirements and the Regulations. In particular, the officer must
be satisfied that they will leave Canada by the end of the authorized period (paragraph
20(1)(b) and subsection 22(1) of the IRPA; paragraph 179(b) of the Regulations).
The evidence in the record was not sufficient to persuade the officer of the applicants’
intention to return to Colombia by the end of the authorized period. The
reasons for the refusal are intelligible and transparent: all the applicant’s
children are in Canada or the United States; they have already filed numerous
applications that have been refused; they did not provide any financial
information demonstrating their establishment in Colombia; the officer had no
obligation to consider Spanish documents that were not translated; finally, the
applicants have a virtually non-existent travel history. Indeed, even though
independent proof of financial ability is not required for a super visa, the applicants’
financial situation could be considered to establish their ties in Colombia,
and therefore whether or not they intended to leave Canada by the end of the authorized
period. As for the misrepresentation and the criminal record, the respondent submits
that the officer was free to consider these facts in the overall assessment of
the applicants’ profile. Finally, with respect to the error regarding the
number of children, the respondent leaves that to the discretion of this Court.
[9]
There is no reason to intervene in this case.
[10]
The refusal to issue a super visa to either applicant
is based on the evidence in the record and is justified by intelligible and
transparent reasons. It is an acceptable outcome in light of the applicable law
and the evidence in the record. The applicants had the onus of persuading the officer
that they would leave Canada by the end of the period authorized for the stay (see
paragraph 20(1)(b) of the IRPA). Bear in mind that any person who seeks to
enter Canada is presumed to be an immigrant (see, e.g., Danioko v Canada (Minister
of Citizenship and Immigration), 2006 FC 479 at para 15). The officer could
reasonably find that the applicants would not leave Canada by the end of the
authorized period based on the applicants’ family ties, as well as on their financial
situation (see, e.g., Duong at paras 9–10).
[11]
The officer determined that the applicants had
weak family ties in Colombia, considering that all their children and
family are in Canada or in the United States. It must be recognized that the officer
erred in fact on this point, since the applicants have two children (and also
several brothers and sisters) in Colombia. I do not find, however, that this
error is determinative. The officer also mentions that the applicants did not
provide banking information and determines that they did not prove that they
had any financial establishment in Colombia. In this case, the officer was
entitled to not consider the land titles written in Spanish. In fact, the super
visa application guide clearly indicates that documents in a foreign language
must be translated into one of Canada’s official languages (see “Applying for
Visitor Visa” (August 31, 2017), online: Government of Canada <https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5256-applying-visitor-visa-temporary-resident-visa.html>).
[12]
In the case of the female applicant, the officer
also checked off the “travel history” factor. Lack of previous travel can
only at most be a neutral factor and should not hurt the application (see Dhanoa
v Canada (Citizenship and Immigration), 2009 FC 729 at para 12). The
officer therefore did likely err in considering this as a negative factor. I do
not consider that those factors played a determinative role in his assessment
of the record. This is therefore not sufficient to render the decision
unreasonable.
[13]
Finally, and more generally, the GCMS notes
indicate that the officer had various concerns about whether the applicants were
bone fide visitors. The applicants filed many other applications in the United
States and in Canada, including a sponsorship application. All these applications
were refused. The officer also notes a misrepresentation by the female
applicant and a family history of irregular immigration to Canada. It seems
reasonable to me to infer from these uncontested facts that the applicants could
intend to establish themselves in Canada rather than come for a simple visit.
[14]
In closing, even if a different result seems
possible, it is not up to this Court to substitute its view for that of the
administrative decision-maker. This does not preclude the fact that, even if
the officer’s decision is discretionary, the presence of two children and many
brothers and sisters and personal property in Colombia certainly plays in the applicants’
favour. Nothing can prevent them from filing a new visa application, insisting
this time on these positive factors and submitting admissible evidence of
immoveable property and cash in Colombia. While the Court understands the applicants’
frustration that they cannot come to Canada themselves to see their children
and grandchildren, this application for judicial review must fail.
[15]
Counsel did not raise any question of general
importance.
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