Dockets: IMM-1946-17
IMM-1947-17
Citation:
2017 FC 972
[ENGLISH TRANSLATION]
Ottawa, Ontario, October 31, 2017
PRESENT: The Honourable Mr. Justice Martineau
|
Docket: IMM-1946-17
|
|
BETWEEN:
|
|
MAHDI ABDOLLAHI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
|
Docket: IMM-1947-17
|
|
AND BETWEEN:
|
|
LEILA ABDOLLAHI
|
|
Applicant
|
|
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The applicants are challenging the
reasonableness of two decisions rendered by an immigration officer in Ankara,
Turkey, on March 14, 2017, summarily dismissing their applications for
temporary visas because they failed to establish that they would leave Canada
at the end of the authorized period or that they had sufficient financial means
to support themselves during the planned stay of fifteen days in Canada.
[2]
The applicants are husband and wife. They are
Iranian citizens and have two minor children who are already enrolled in
school. The applicant has managed a family-owned construction business for over
ten years, and wished to take a short fifteen-day trip to Canada with his wife
to see whether he wanted to initiate an immigration process as an entrepreneur.
Visits with entrepreneurs were arranged by consultants and lawyers. It should
be recalled that an initial exploratory visit is required for any application
to the BC Provincial Nominee Program’s entrepreneur immigration stream. It was
in this context that they applied for temporary resident visas on February 14,
2017, to complete the trip in question between June 15 and 30, 2017. The
application excluded both minor children.
[3]
In support of their application, the applicants
provided numerous documents, including the following:
a)
Invitation letters from two companies;
b)
Airline tickets with a scheduled departure from
Canada on June 30, 2017 (their return tickets to Iran were already purchased);
c)
Several bank statements which were accompanied
by a certified letter from the bank attesting to a credit balance of
USD$66,418.71. During the period, expenses were allegedly USD$325,423.09 and
revenue was USD$212,742.87;
d)
Documents attesting to the minors’ academic
enrolment in Shiraz, Iran;
e)
The company’s financial statements between March
2013 and March 2016, accompanied by an audit report;
f)
Various documents related to title transfers:
property certificates, building licences, excerpts from the land register,
etc.;
g)
The children’s birth certificates;
h)
The applicant’s marriage certificate; and
i)
Copies of the pages from the applicants’
passports attesting to their entries into and exits from Iran.
[4]
On March 14, 2017, the applications were denied.
The boxes checked on the standard form show that the officer based his refusal
on the fact that the applicants failed to establish that they would leave
Canada at the end of the authorized period or that they had the means to
support themselves during their stay.
[5]
The only issue is whether the denial of the visa
applications is unreasonable in light of all the evidence in the record and the
applicable law.
[6]
The applicants complained about the lack of
reasons provided by the officer and that he had not considered all the evidence
or had otherwise dismissed relevant evidence without good reason. The
respondent replied that the decision was reasonable in view of the inadequacy
of all the evidence, and given the minimal duty to provide reasons with respect
to a temporary visa application.
[7]
Intervention is warranted in the case at hand.
[8]
It should be noted that, with respect to
temporary resident visa applications, the duty to provide reasons is limited (see
Da Silva v Canada (Citizenship and Immigration), 2007 FC 1138
at paras 11–12). However, the reasons must nonetheless “[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). These principles were applied in the context of immigration decisions
(see, for example, Zhou v Canada (Citizenship and Immigration), 2013 FC
465 at para 21 [Zhou]). In several decisions cited by the parties,
limited grounds were deemed reasonable, but they were nevertheless reasons of
several lines that referred to the evidence (see Zhou at paras 5 and 19).
In Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61 at para 54, the Supreme Court tells us that “the direction that courts are to give respectful attention
to the reasons ‘which could be offered in support of a decision’ is not a
‘carte blanche to reformulate a tribunal’s decision in a way that casts aside
an unreasonable chain of analysis in favour of the court’s own rationale for
the result’ [citation omitted].”
[9]
That said, the officer’s notes are in the Global
Case Management System [GCMS] and succinctly outline the following concerns:
[TRANSLATION]
Low income, debt higher than savings. No
history of travel, limited ties to the country of residence. I am not satisfied
that the applicant is a bona fide visitor who will leave Canada at the end of
the authorized stay. Denied.
[10]
I am satisfied that the impugned decision was
made without consideration of relevant evidence establishing that they could
support themselves and that they had very strong family and economic ties with
their country. Overall, the officer’s decision is unreasonable, while the
evidence in the record does not support the general reasons for refusal
provided to the applicants in the case at hand.
[11]
The officer’s brief reasons are problematic:
a)
The so-called insufficiency of the
applicants’ financial resources.
The “low income, debt exceeding income” statement does not
take into account all the evidence indicating that the applicants have the
financial means to complete the planned trip. The applicant has been operating
a family-owned construction business for ten years and holds extensive assets.
All the documents filed attest to titles and assets of approximately
CAD$3,500,000, in addition to the financial valuation of the company.
Furthermore, a certified letter from the bank shows a positive balance of over
USD$60,000 in the applicant’s bank account. At the hearing, counsel for the
respondent indeed acknowledged this considerable credit balance in January
2017, when the visa application was submitted. However, since the applicant
spends more than he saves, the bank account could very well have been emptied
by the time of the trip in June 2017. This is pure speculation on the
respondent’s part, especially since the impugned decision was rendered a few
weeks after the visa applications were submitted. In any event, we are talking
about a trip to Canada of only two weeks. Based on the applicants’ budget,
expenses would not exceed $15,000, which they would have available. Given the
account balance of USD$66,418.71 and the
fact that they had already purchased their return tickets, any financial
concerns on the officer’s part were not based on any objective or rational
basis.
b)
Past trips out of Iran.
The “No history of travel” statement is not supported by the evidence, and any negative
inference by the officer in this respect is unreasonable in the case at hand.
It should be noted that the travel history of applicants to the United Arab
Emirates could not adversely affect their applications and overweigh strong
evidence to the contrary in the absence of any negative travel history (see Ogunfowora
v Canada (Citizenship and Immigration), 2007 FC 471 at para 42). They
always complied with the conditions of their visas, as established by the
evidence submitted.
c)
Family and economic ties to Iran.
The officer also considers
the minimal ties to the country of origin to be problematic. However, there were several pieces of evidence
attesting to very strong ties to Iran: return tickets, the presence of minor
children, several properties, and a successful family business. The decision
makes no reference to these positive elements and provides no explanation with
respect to their inadequacy to attest to ties to Iran. The applicants’ children
are still minors and enrolled in school in Iran. It is difficult to
imagine that the applicants would not want to return to Iran after their 15-day
trip to Canada, especially since the applicant must continue to look after the
family construction business.
d)
Good faith of the applicants and the
legitimate purpose of their short stay in Canada.
It
may be asked how the officer considered this element problematic, since he did
not question the legitimate reasons for business in Canada, the job prospects
in Iran and the current employment situation—all factors that could have been
checked off in the refusal form had he truly had a problem on this point. It is
reasonable that the applicants make the planned trip to immerse themselves in the
business climate in British Columbia, since an investment project would be
difficult to imagine without being in touch with local business people.
[12]
The respondent did attempt to compensate for the
deficiencies or errors of fact emerging from the GCMS notes by suggesting
various additional reasons for the refusal. I do not think that it is within
our jurisdiction to infer from a decision reasons that simply are not there. Apart
from the brief annotations in the GCMS notes, it is clear that the officer did
not complete a proper review of the applicants’ visa applications and that he
ignored or arbitrarily excluded several relevant factors. At this stage in the
case, the officer could not presume that the applicant did in fact intend on
settling in Canada permanently.
[13]
Certainly, officers cannot be required to refer
to every element submitted or each argument raised. It must also be presumed
that he consulted the evidence (see Florea v Canada (Citizenship and
Immigration), [1993] FCJ No 598, 1993 CarswellNat 3983 at para 1 (FCA)). However,
“an officer’s responsibility to analyse and
comment on a specific piece of evidence increases in accordance with the
importance of that evidence and the degree to which it contradicts the
decision-maker’s findings” (Oliinyk v Canada
(Citizenship and Immigration), 2016 FC 756 at para 15 made reference to Cepeda-Gutierrez
v Canada (Citizenship and Immigration) (1998), 157 FTR 35, 83 ACWS (3d) 264
(FC) at paras 14-17). As was the case in Oliinyk, here again, “The Officer made factual findings at odds with evidence that
was not discussed in his reasons.” (Oliinyk at para 17).
[14]
As a whole, the decision is unreasonable.
[15]
For these reasons, the applications for judicial
review are allowed. The decisions denying the issuance of temporary visas are
quashed, and the application cases are referred for reconsideration by a
different officer. No question of law of general importance was raised by the
parties.
Email this Content