Date: 20230301
Docket: IMM-4705-22
Citation: 2023 FC 285
Vancouver, British Columbia, March 1, 2023
PRESENT: Justice Andrew D. Little
| BETWEEN:
|
| TERMEH ZIBADEL
ELHAM RAHIMI KESHARI
|
| Applicants
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
[1] This application concerns two interdependent decisions arising from applications for a study permit and a temporary resident visa by an 8-year old and her mother, both citizens of Iran.
[2] The principal applicant on this application is T, whom I will call the “Applicant”
. She seeks to set aside a decision by a visa officer dated March 20, 2022, refusing her application for a study permit under subsection 216(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “IRPR”
). On the same day, the officer also refused her mother’s application for a temporary resident visa (“TRV”
).
[3] The officer was not satisfied that the applicants would leave Canada at the end of their stays based on the purpose of their visits.
[4] The applicants ask the Court to set aside the decisions as unreasonable, applying the principles in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563. The applicants also submitted that the officer’s study permit decision also deprived her of procedural fairness.
[5] For the reasons that follow, I conclude that the application must be allowed because the study permit decision was unreasonable. The two decisions refusing a study permit and a TRV will be set aside and the applications will be remitted for redetermination by a different officer.
I.
Background
[6] The minor Applicant, T, is an 8-year old citizen of Iran. She completed the 2nd grade at Masir Shenakht Primary School in Iran in 2022. On February 3, 2022, the Applicant was accepted to 4th grade at the North Vancouver District School for the 2022-2023 academic year. That school is a designated learning institution for the purposes of subsection 220.1(1) of the IRPR. It requires that all elementary students be accompanied by their own parent(s), who will reside with them in North Vancouver, throughout the full school year.
[7] This is the minor applicant’s second study permit application. Her first application was refused on August 5, 2021.
[8] The minor applicant’s mother, Ms Keshari, is the second applicant in this Court. She applied for a TRV so she could accompany her daughter to Canada. She proposed to stay in Canada for four months to get her daughter settled. The parents also arranged for a guardian to care for the Applicant in West Vancouver, whose name, address and contact information were provided. The applicant’s father, Mehdi Zibadel, is a gallery manager who was to remain in Iran during his daughter’s studies.
[9] The study permit application included a Study Plan prepared by Ms Keshari and documents supporting the parents’ financial position.
[10] The Study Plan addressed topics under the headings:
[11] The application also included six single-spaced pages of submissions dated March 14, 2022, from an immigration consultant. This letter sought to address the officer’s reasons for refusal on a prior study permit application in Canada. The officer in the first study permit application apparently found the previous study plan to be vague and poorly documented, and that the family was not sufficiently well-established such that the proposed studies were a reasonable expense.
[12] The submissions letter confirmed the parents’ joint short-term deposit in a bank in the amount of $33,900, prepaid tuition of $16,000, and estimated living costs for the Applicant and her mother of $14,000. The submissions presented a table that compared the tuition and living expenses for different study options in Canada, the United Kingdom, United States, Germany, Denmark, Turkey, the United Arab Emirates and Singapore. It explained the reasons why the parents did not choose a local school option. The letter also provided citations to case law from this Court, with quotations, to support their position.
II.
The Refusal Letters and GCMS Notes
[13] By separate letters dated March 20, 2022, an officer refused the applicants’ applications for a study permit and TRV. The letter addressed to T advised that the officer was not satisfied that she would leave Canada at the end of her stay, as required by subsection 216(1) of the IRPR, based on the purpose of her visit. The letter to T’s mother advised that the officer was not satisfied that she would leave Canada at the end of her stay, as required by paragraph 179(b) of the IRPR, based on the purpose of her visit.
[14] The Global Case Management System (“GCMS”
) contained the following entry on March 20, 2022, in relation to the application for the study permit:
I have reviewed the application. Minor applicant to study at North Vancouver School District. The purpose of the visit itself does not appear to be reasonable, in view of the fact that similar programs are available closer to the applicant's place of residence. Motivation to pursue studies in Canada does not seem reasonable given that a comparative course is offered in their home country for a fraction of the cost. The purpose of visit does not appear reasonable given the applicant’s socio-economic situation. Based on the documentation on file in support of the parent’s level of economic establishment and considering the purpose of the visit, I do not consider that the proposed studies in Canada is a reasonable or affordable expense. Weighing the factors in this application. I am not satisfied that the applicant will depart Canada at the end of the period authorized for their stay. Application refused.
[15] These reasons will focus on the decision refusing the study permit, as the GCMS entry for the refusal of the mother’s TRV application demonstrates that it depended entirely on the refusal of the study permit. The GCMS entry for the mother’s TRV application stated:
Client is seeking entry to accompany a family member who is applying for a study permit. Family member's study permit has been refused. For the reasons above, I have refused this application.
[16] It is clear that if the decision refusing the study permit is set aside as unreasonable, the decision on the TRV application is also vitiated.
III.
Standard of Review and Relevant Legislative Provisions
[17] The parties correctly agreed that reasonableness is the applicable standard of review: see Iyiola v Canada (Citizenship and Immigration), 2020 FC 324 at paras 11-14; Aghaalikhani v Canada (Citizenship and Immigration), 2019 FC 1080, at para 11.
[18] Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision is transparent, intelligible and justified: Vavilov, at paras 12-13 and 15. The starting point is the reasons provided by the decision maker, which are read holistically and contextually, and in conjunction with the record that was before the decision maker. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrained the decision maker: Vavilov, esp. at paras 85, 91-97, 103, 105-106 and 194; Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at paras 2, 28-33, 61.
[19] Justice Roussel, when she was a member of this Court, set out the standard of review concisely in Lingepo v Canada (Citizenship and Immigration), 2021 FC 552, at paragraph 13:
The standard of review applicable to a review of a visa officer’s decision to refuse a study permit application is that of reasonableness (… Vavilov, at paras 10, 16–17 … ; Nimely v Canada (Citizenship and Immigration), 2020 FC 282 at para 5 …; Hajiyeva v Canada (Citizenship and Immigration), 2020 FC 71 at para 6). While it is not necessary to have exhaustive reasons for the decision to be reasonable given the enormous pressure on visa officers to produce a large volume of decisions each day, the decision must still be based on an internally coherent and rational chain of analysis and be justified in relation to the facts and law that constrain the decision maker (Vavilov at para 85). It must also bear “the hallmarks of reasonableness — justification, transparency and intelligibility” (Vavilov at para 99).
[20] In order to intervene, the Court on this application must find an error in the decision that is sufficiently central or significant to render the decision unreasonable: Vavilov, at para 100.
[21] Part 12 of the IRPR governs how “Students”
as a class of persons may become temporary residents of Canada. To study in Canada, IRPR section 213 requires a foreign national to apply for a study permit before entering Canada. Under subsection 216(1), an officer shall issue a study permit to a foreign national if, following an examination, certain criteria are established. Those criteria include that: the foreign national will leave Canada by the end of the period authorized for their stay (paragraph 216(1)(b)); the foreign national must meet the requirements of Part 12 (paragraph 216(1)(c)); and the foreign national must have been accepted to undertake a program of study at a designated learning institution (paragraph 216(1)(e)). The onus is on an applicant to satisfy the officer that they will not remain in Canada once the visa has expired: Solopova v Canada (Citizenship and Immigration), 2016 FC 690, at para 10.
[22] Paragraph 179(b) of the IRPR similarly contemplates that the officer be satisfied that an applicant will leave Canada by the end of the period for their stay.
IV.
Analysis
[23] The applicants submitted that the officer’s reasons for refusing the study permit were arbitrary or unintelligible for failure to point to any evidence or documents to support the reasoning. They argued that the GCMS notes were vague in their use of terminology, such as “the visit itself does not appear reasonable”
, “reasonable or affordable expense”
and “socio-economic situation”
. The applicants asserted that the GCMS notes did not disclose the officer’s thought process, did not address evidence contrary to the important findings of fact and did not provide a rational basis for conclusions reached.
[24] I do not agree that at a general level, the officer’s reasons are arbitrary or unintelligible for any of these reasons. Nor am I persuaded that the words and phrases in the GCMS notes are so inherently vague as to imply the absence of a rational basis for making the decision.
[25] I turn to the applicant’s arguments that, based on the applicable case law and the record, one or more elements of the officer’s study permit decision was unreasonable.
[26] The reasons in the GCMS essentially resolve into two findings, both of which the officer related to the purpose of the proposed visit to Canada. The applicants challenged both and made additional submissions concerning why the decision did not display the required hallmarks of reasonableness.
[27] To reach a conclusion on this application, I will analyze three issues in turn.
[28] First, the applicant’s position challenged the following part of the GCMS notes:
The purpose of visit does not appear reasonable given the applicant’s socio-economic situation. Based on the documentation on file in support of the parent’s level of economic establishment and considering the purpose of the visit, I do not consider that the proposed studies in Canada is a reasonable or affordable expense.
[29] The applicants submitted that the officer misapprehended the evidence related to the conclusion that the proposed studies were a reasonable expense given the applicant’s family’s “level of economic establishment”
. The applicants submitted that the parents had available funds to finance their daughter’s year in Canada, based on evidence that the GCMS notes reasons did not expressly mention that: her $16,000 tuition amount was fully pre-paid; the applicant’s parents had $33,900 cash in their bank after the tuition was paid; the parents owned an apartment building in Iran that had been purchased for more than $1.2 million in 2021; and the parents’ combined monthly income exceeded $8,000. On the basis of that evidence, they contended that it was unreasonable for the officer to conclude that the proposed studies were not a reasonable or affordable expense.
[30] The respondent noted that the GCMS notes stated that the officer’s assessment was based on the “documentation on file in support of the parent’s [sic] level of economic establishment and considering the purpose of the visit”
. The respondent observed that the application estimated both $10,000 and $14,000 in living expenses for the year (creating a range between those figures), which implied that those expenses would take more than a third of the parents’ savings. The respondent referred to the reasoning in Jafari v Canada (Minister of Citizenship and Immigration), 2022 FC 1671 at para 18, which involved a study permit refused to a student of almost the same age as the applicant, T, in this case:
[18] The Applicants also contend that the Officer’s decision is unreasonable in that he or she failed to consider the financial means and other assets available for Miss Jafari’s studies. I disagree. The Respondent submitted that this course of study, for only one year, would consume over one third of the combined savings of Miss Jafari’s parents. The Respondent is generous when he refers to “over one third”; as I already noted, the amount is actually closer to one-half of their current savings. The Officer’s notes reveal that he or she “[w]eighed the factors in this application” including the documentation on file in support of the parent’s level of economic establishment. That observation, combined with the Respondent’s remarks about the percentage of savings that would be expended for this one year of study, demonstrates that the Officer turned his mind to the topic of the financial feasibility of this program for a 7-year-old minor, studying at the grade 2 level in a foreign land, more than 10,000 kilometres from home. In the circumstances, given Miss Jafari’s age, the cost of travel to Iran for visits with her father, the cost of living in Canada and the future costs of her education, the conclusion passes the test of reasonableness. It is justified, transparent and intelligible.
[31] Although the applicants’ submissions verged towards an argument on the merits of the issue, the question on judicial review is not whether the Court might come to a different conclusion than the officer did based on the evidence. That is, the reviewing court must refrain from reweighing and reassessing the evidence considered by the decision maker. It must also ordinarily refrain from deciding the issue that was before the decision maker, and must respect the decision maker’s role and expertise: Vavilov, at paras 75, 83 and 125.
[32] On this issue, the question is whether the officer’s decision failed to respect the factual constraints in the record. In my view, the applicants have not demonstrated such an error. While an applicant may provide valid reasons to choose to study in Canada in spite of the comparatively higher cost, it was open to the officer to reach the conclusion on this issue based on the evidence and submissions made. The applicants’ record included two different estimates for Canadian living expenses of $10,000 and $14,000. Those figures represent around 30-40% of their cash savings. The application did not include any additional details such as the parents’ expenses or liabilities, whether in reference to their monthly income or their apartment (including any revenue it generates). I cannot conclude that the officer fundamentally misapprehended the evidence, or ignored or failed to account for critical evidence in the record that runs counter to the conclusion on this issue: Vavilov, at paras 101 and 125-126; Gordillo v Canada (Attorney General), 2022 FCA 23, at para 62; Federal Courts Act, RSC 1985, c F-7, paragraph 18.1(4)(d).
[33] Second, the applicants challenged the reasonableness of the following statements in the GCMS notes:
The purpose of the visit itself does not appear to be reasonable, in view of the fact that similar programs are available closer to the applicant's place of residence. Motivation to pursue studies in Canada does not seem reasonable given that a comparative course is offered in their home country for a fraction of the cost.
[34] The applicants argued that this statement was “simply unintelligible”
, owing to the dearth of evidence to support this factual finding (citing Aghaalikhani, at para 20) and lack of explanation (citing Yuzer v Canada (Minister of Citizenship and Immigration), 2019 FC 781, at para 21). They argued that the officer failed to name any local Iranian options or their associated costs.
[35] An assessment of the reasonableness on this issue turns on “the particular reasons given by the visa officer, in the context of the particular submissions and evidence put forward by the applicant”
: Afuah v Canada (Citizenship and Immigration), 2021 FC 956, at paras 13-14.
[36] While there is an express statement that the officer reviewed the application and that “[m]inor applicant to study at North Vancouver District School”
, the reasons in the GCMS appear to include principally template statements. The same statements were also used in other study permit decisions reviewed by this Court: see Jafari, at para 8; Hassanpour v Canada (Citizenship and Immigration), 2022 FC 1738, at para 5; Torkestani v Canada (Immigration, Refugees and Citizenship), 2022 FC 1469, at para 5; Soltaninejad v Canada (Citizenship and Immigration), 2022 FC 1343, at para 4.
[37] In Ekpenyong v Canada (Immigration, Refugees and Citizenship), 2019 FC 1245, Justice Pamel recognised that it is permissible to use template language for decisions on study permits. However, he also observed that “when using templates, visa officers should bring the necessary modifications or render reasons that would indicate their thought process in an intelligible manner, and address evidence that may contradict important findings of fact”
: Ekpenyong, at paras 22-23. I agree.
[38] The principal reasons advanced by the applicant’s parents for her study in Canada were based on the lack of similarity between her education at her school in Tehran and the education she would receive in Canada. In the Study Plan, the applicant’s mother stated that the experience at the North Vancouver school would help form her daughter’s identity in a way that can impact her future school years in Iran, and that attending school in Vancouver would help her with:
· “access to the latest technology and the best facilities”
. These kinds of facilities can rarely be found in Iran. And we want Termeh to get familiar with using technology for educational purposes.
· Participating in a variety of extracurricular activities. This is something that is not found in Iran since they paid too much attention to core subjects and do not value the importance of [extra] curricular activities.
· Enjoying a collaborative environment and a multicultural atmosphere. The school’s diverse student population of both local and international students makes it a rich and exciting place to learn, study, play and build lifelong memories and friendships.
[Emphasis added.]
[39] The Study Plan also noted that a “safe and multicultural”
school would benefit her and attending a “mixed-gender school would prepare her for real-world interactions, as opposed to same gender schools in Iran”
[emphasis added].
[40] Similarly, the immigration consultant’s submissions explained the reasons why the parents did not choose a local option for their daughter, including comparisons between schooling in Iran and Canada:
the “extra curriculum activities like sports exercises, art, and music are not profoundly esteemed in Iranian schools which can make the applicant develop more separately and socially”
the applicant’s parents “do not like gender segregation which is in Iranian schools; they want their child to grow up at school with this thought, so educating in Canada will allow them to learn how to have free minds and develop vital social skills”
the Iranian educational system is “more score focused rather than concentrating on developing the student’s skills and talents”
“the curricula are theoretical – based and is suffering from low standards”
, and
“the local options are not provided with admirable facilities and well-equipped labs”
.
[Emphasis added.]
[41] The officer found, without additional explanation, that the course or program in Iran was similar or comparable to that in Canada. In previous cases involving reasons without an express explanation, the Court has concluded that the absence of evidence in the record about the local options available to the applicant, when combined with a failure to account for evidence in the record about the applicant’s reasons to study in Canada, disclosed a reviewable error and/or raised serious concerns as to the justification or transparency of the officer’s reasons: see Torkestani, at paras 10-14; Afuah, at para 15; Aghaalikhani, at para 20; Yuzer, at paras 21-22. In the present case, the absence of any explanation in the GCMS notes implies that the officer did not consider a key basis for the proposed educational advancement at issue in this study permit application, namely, the differences between the educational opportunities for this Applicant in Iran and Canada. When stating that the course or programs were similar or comparable and reaching a conclusion on this issue that was negative to the study permit application, the decision did not acknowledge or account for the evidence that ran contrary to the conclusion, and did not grapple meaningfully with the central submissions made by the Applicant’s parents: Vavilov, at paras 125-128. Some explanation, even if brief, was required in the circumstances. The decision did not do so and therefore did not provide transparent and justified reasons for the conclusion.
[42] Contrary to the submissions of the respondent, the submissions filed for the study permit were not so vague concerning the benefits of international study that the officer could merely ignore them. Unlike Farnia, cited by the respondent, the GCMS notes in this case did not characterize the study plan as vague or as making general advantageous comments or sweeping generalizations: Farnia v Canada (Citizenship and Immigration), 2022 FC 511, at para 16.
[43] The respondent also relied on the Federal Court of Appeal’s recent decision in Zeifmans LLP v Canada, 2022 FCA 160, to support the officer’s reasoning, arguing that the contents of the record supported the decision. In that case, an accounting firm argued that because the Minister’s decision did not supply an express interpretation of a statutory provision, the Minister “never thought about the interpretation”
, rendering the decision unreasonable. The Federal Court of Appeal disagreed. In its reasons delivered from the Bench, the appeal court stated:
[9] We disagree. Vavilov goes further. Vavilov tells us that reviewing courts must not insist on the sort of express, lengthy and detailed reasons that, if asked to do the job themselves, they might have provided: Vavilov at paras. 91-94. To so insist could subvert Parliament’s intention that administrative processes be timely, efficient and effective.
[10] Vavilov says more. It tells us that an administrative decision should be left in place if reviewing courts can discern from the record why the decision was made and the decision is otherwise reasonable: Vavilov at paras. 120-122; Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156 at paras. 38-42. In other words, the reasons on key points do not always need to be explicit. They can be implicit or implied. Looking at the entire record, the reviewing court must be sure, from explicit words in reasons or from implicit or implied things in the record or both, that the administrator was alive to the key issues, including issues of legislative interpretation, and reached a decision on them.
[44] In Zeifmans, a review of the record before the Minister and the decision itself left the appeal court in “no doubt”
: it knew where the Minister was coming from, that the Minister was aware of the statutory provision, that the Minister implicitly or impliedly adopted an interpretation of that provision consistent with multiple binding decisions of that Court, and applied that interpretation to the facts in a reasonable way: Zeifmans, at para 11.
[45] The legal and factual contexts of the Minister’s decision in Zeifmans and the present officer’s study permit decision are very different. However, as the respondent’s reliance on the appeal court’s reasoning implies, the approach in Zeifmans is not restricted to the review of Ministerial decisions; it is of wider application in judicial review proceedings. It goes to a reviewing court’s role and process when reviewing a decision maker’s reasons contextually alongside the contents of the record that was before the decision-maker, for example when the decision is short or perhaps uses template reasons without explicit reasoning on a point.
[46] It is clear that the reviewing court may consider the contents of the record before the decision maker to determine whether the decision is justified: Vavilov, at paras 91-96. Zeifmans suggests that the reviewing court must have a level of confidence that a perceived gap or aspect of the reasoning that is “not apparent from the reasons themselves”
(Vavilov, at para 94) should be filled by something implied or implicit: Zeifmans, at paras 10-11. Similarly, in Vavilov, the Supreme Court confirmed that the reviewing court can “connect the dots on the page where the lines, and the direction they are headed, may be readily drawn”
: Vavilov, at para 97, quoting Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, at para 11 (underlining added). Having such confidence supports the focus on adequate justification by the decision maker and ensures that the court retains its limited supervisory role: Vavilov, at para 96; Alexion Pharmaceuticals Inc. v Canada (Attorney General), 2021 FCA 157, at paras 8-10.
[47] The court may obtain the necessary confidence from the institutional context and record before the decision maker, such as the contents of transcripts of a hearing, the parties’ submissions, past decisions of the decision maker, and policies and bulletins: Vavilov, at paras 94, 96, 103, 303; Yu v Richmond (City), 2021 BCCA 226, at paras 99-102. It seems particularly important to have a high level of confidence before concluding that something not apparent in the decision maker’s reasons is implied or implicit on the basis of the factual evidence alone.
[48] In this case, the reasoning in Zeifmans does not assist the respondent. The officer’s GCMS notes confirm a review of “the application”
. However, the rest of the entry does not mention expressly or refer impliedly to the Study Plan or submissions, or to their contents (i.e., the reasons advanced by the applicants to justify the proposed study for T in Canada). From reading the GCMS notes alongside the record, I am not confident that the officer considered the contents of the Study Plan and meaningfully grappled with the corresponding submissions in the immigration consultant’s letter. In other words, I have material doubt that the officer was alive to the key concerns raised by the Applicant in those documents given the submitted differences between the education opportunities in Iran and Canada. I cannot impose my own view of the circumstances, buttress the reasons with my own, or guess what the officer must have been thinking. Nor will I engage in a form of judicial pareidolia using the contents of the factual record before the officer.
[49] As noted, the language in the GCMS notes appears to be template language. Consistent with the Court’s decisions on work permits, I find nothing inherently unreasonable about concise or template language in the context of a study permit application: see Vahora v Canada (Citizenship and Immigration), 2022 FC 778, at para 38; Bagga v. Canada (Citizenship and Immigration), 2022 FC 454, at para 20; Ekpenyong, at paras 22-23. However, the use of template or boilerplate language does not detract from the need to be attentive and responsive to the specific evidence and submissions at the core of each application: Vavilov, at para 127; Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156, at para 34; Hashemi v Canada (Citizenship and Immigration), 2022 FC 1562, at paras 3, 14, 35 (citing Patel v Canada (Citizenship and Immigration), 2020 FC 77 at para 17, and Motlagh v Canada (Citizenship and Immigration), 2022 FC 1098 at para 22). The concerns in this case underline the perils of using standardized language, without adding a bit more about the particular study permit application, when providing reasons for a decision.
[50] In my view, these considerations related to one of the two principal reasons in the GCMS notes undermine the reasonableness of the refusal decision.
[51] Third, the applicants made general submissions in writing about the officer’s failure to consider the applicant’s personal ties to Iran (including her father, who was staying in Iran throughout, and her grandmother) and the parents’ respective employment and financial ties to Iran (including the mother’s long-term and successful career with a single employer). The applicants’ ties to Iran are obviously relevant to whether the applicants would leave at the end of their stays, as mentioned in both refusal letters.
[52] Although it was not a prominent feature of the submissions at the hearing in this Court, the absence of any mention of ties to Iran in the GCMS notes – which presumably would have been a positive factor for the Applicant – is a factor that contributes to a loss of confidence in the decision.
[53] The analysis above leads to the conclusion that the decision concerning the study permit must be set aside as unreasonable. As noted already, the same conclusion follows for the refusal of the TRV.
[54] It is unnecessary to comment on the applicants’ submission that the officer did not review the application materials due to bias and baseless suspicion that the Applicant was not a bona fide student, or their submissions concerning procedural unfairness.
V.
Conclusion
[55] For the reasons above, the application will be allowed. Both decisions will be set aside and the applications returned for redetermination.
[56] Neither party proposed a question to certify for appeal and no question will be stated.
JUDGMENT IN IMM-4705-22
The decisions of the officer dated March 20, 2022, refusing a study permit for the minor applicant and refusing a temporary resident visa for the adult applicant, are both set aside.
Both applications are remitted to a different decision maker for redetermination.
No question is certified for appeal under paragraph 74(d) of the Immigration and Refugee Protection Act.
.
"Andrew D. Little"
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