Date: 20030225
Docket: IMM-2214-01
Neutral Citation: 2003 FCT 241
BETWEEN:
ANTON SZABO
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
RUSSELL J.
Relief Sought
[1] This is an application for judicial review of the decision of immigration officer, Laurent N. Beaulieu dated April 6, 2001, wherein he denied the Applicant's application for a work authorization in Canada.
Applicant's Account
[2] The Applicant, Anton Szabo, is a citizen of Romania.
[3] He initially came to Canada in February 1998 on a visitor's visa. Once in the country, however, he applied for landing on humanitarian and compassionate grounds but his application was refused.
[4] He then applied for landing under the independent category, but was again unsuccessful. Finally he submitted a Convention Refugee claim which was also refused.
[5] A removal Order was eventually issued against the applicant. Although he brought a motion to stay the execution of this Order, he was unsuccessful. The Applicant left Canada for Hungary on March 21, 2000.
Decision of the Visa Officer
[6] After leaving Canada, the Applicant applied for a work authorization and was interviewed by the officer on February 8, 2001.
[7] The officer was not satisfied that the Applicant would respect the terms and conditions of his work authorization and return to Romania upon its expiry. The officer believed that the Applicant's intention was to remain in Canada permanently. As a result, the officer refused the Applicant's application for a work authorization.
Applicant's Submissions and Grounds
[8] The Applicant says that the decision of the officer is reviewable because the officer committed an error of law in that, when assessing the intention of the Applicant, the officer failed to consider whether the Applicant would become an illegal immigrant and focussed instead largely on the potential of the Applicant to become an immigrant.
Respondent's Position
[9] The Respondent says that the decision of the officer is unassailable for the following reasons:
1. The officer assessed the Applicant's application for employment authorization in accordance with the criteria set out in the Immigration Act, R.S.C. 1985, c. I-2 ("Act") and on the basis of the facts provided by the Applicant during his interview.
2. The officer found that the Applicant did not satisfy him that the Applicant was not an immigrant.
3. The decision of the officer was based upon the evidence before him and the criteria set forth in the relevant legislation and as such is not reviewable.
Discussion
[10] Work permits are issued pursuant to section 10 of the Act, which reads as follows:
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Except in such cases as are prescribed, every person, other than a Canadian citizen or a permanent resident, who seeks to come into Canada for the purpose of
(a) attending any university or college authorized by statute or charter to confer degrees,
(b) taking any academic, professional or vocational training course at any university, college or other institution not described in paragraph (a), or
(c) engaging in employment
shall make an application to a visa officer for and obtain authorization to come into Canada for that purpose before the person appears at a port of entry.
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Sauf cas prévus aux règlements, est tenu de présenter une demande auprès de l'agent des visas et d'obtenir l'autorisation nécessaire avant de se présenter à un point d'entrée quiconque, à l'exception d'un citoyen canadien ou d'un résident permanent, cherche à venir au Canada aux fins_:
a) de faire des études dans une université ou un collège autorisés par la loi ou par une charte à délivrer des diplômes;
b) de suivre des cours de formation générale, théorique ou professionnelle dans une université, un collège ou un autre établissement non visés à l'alinéa a);
c) d'occuper un emploi.
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[11] Those persons who apply for work permits under the Act fall into the category of "visitor," which is defined in subsection 2(1) of the Act as follows:
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"visitor" means a person who is lawfully in Canada, or seeks to come into Canada, for a temporary purpose, other than a person who is
(a) a Canadian citizen,
(b) a permanent resident,
(c) a person in possession of a permit, or
(d) an immigrant authorized to come into Canada pursuant to paragraph 14(2)(b), 23(1)(b) or 32(3)(b).
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« visiteur » Personne qui, à titre temporaire, se trouve légalement au Canada ou cherche à y entrer, à l'exclusion_:
a) des citoyens canadiens;
b) des résidents permanents;
c) des titulaires de permis;
d) des immigrants visés aux alinéas 14(2)b), 23(1)b) ou 32(3)b).
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[12] Subsection 9(1) of the Act provides that:
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Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.
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| Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée.
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[13] Subsection 9(4) of the Act makes it clear that, in the issuance of visas the officer has a discretion and must be satisfied that the issuance of the visa is not contrary of the Act or the Regulations:
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Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
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Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements.
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[14] Subsection 8(1) makes it clear that, in the case of a person seeking to come into Canada, the burden of proof lies with the Applicant:
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Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
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Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
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[15] Subsection 8(2) of the Act creates a presumption that every person seeking to come into Canada is an immigrant until that person satisfies the visa officer otherwise:
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Every person seeking to come into Canada shall be presumed to be an immigrant until that person satisfies the immigration officer examining him or the adjudicator presiding at his inquiry that he is not an immigrant.
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Quiconque cherche à entrer au Canada est présumé être immigrant tant qu'il n'a pas convaincu du contraire l'agent d'immigration qui l'interroge ou l'arbitre qui mène l'enquête.
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[16] Subsection 9(1.2) of the Act provides that:
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A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant.
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La personne qui demande un visa de visiteur doit convaincre l'agent des visas qu'elle n'est pas un immigrant.
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[17] The officer denied the Applicant's application because he did not believe that the Applicant would respect the terms and conditions of the employment authorization. His decision was based upon:
a) the Applicants past history and efforts to remain in Canada permanently;
b) the Applicant's statements that when he had come to Canada in 1998 on a visitor's visa, his intention was to study English, work and remain in Canada permanently;
c) the Applicant's statement that, for economic reasons, he could not remain in Romania and wanted to work in Canada.
[18] The relevant legislative provisions make it clear that the onus is upon the Applicant to convince the officer that he will honour the employment authorization and is not an immigrant.
[19] The Applicant argues that the officer failed to consider whether the Applicant would become an illegal immigrant and chose instead to focus upon the Applicant's potential to become an immigrant. This is significant because it is quite possible for an applicant to have legitimate dual purposes. The Applicant might well intend to become an immigrant in the appropriate legal way and this should not disqualify him from obtaining an employment authorization. This concept is acknowledged in the Respondent's dual intention policy as contained in its Immigration Manual at 6.2:
b) The fact that an immigrant application has been made outside Canada is not, in itself, grounds to approve or refuse a visitor extension application. The courts have recognized that a person may have the dual intent of immigrating and of abiding by the immigration law respecting temporary entry.
[20] The Applicant further argues that the officer regarded the Applicant's intention to become an immigrant as determinative in his decision to refuse a work authorization to the Applicant.
[21] As the case of Jie v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1733 makes clear a visa officer may have regard to information in prior applications and interviews, provided the officer decides the case on the base of the evidence before him or her. It is not wrong for a visa officer to draw inferences from facts with respect to the Applicant's intention to return.
[22] Further, as Li v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1542 makes clear, the guidelines cannot override subsection 9(1.2) of the Act which requires that the visa officer be satisfied that the person is not an immigrant.
[23] In the present case, the officer did not treat the Applicant's prior history as being determinative. It was merely one of the factors considered in reaching a decision that the Applicant had not convinced the officer, in accordance with subsection 9(1.2) of the Act, that the Applicant was not an immigrant or, more accurately, that the Applicant intended to honour the terms of the employment authorization. The officer's affidavit and his CAIPS notes make it clear that, in making his decision, he focussed upon whether the Applicant intended to honour the terms of the employment authorization. He concluded that the Applicant had not convinced him on this point and he made his decision accordingly.
[24] This is a case where an officer had to make a discretionary decision on the basis of specific statutory criteria. The officer's decision in this case was one that was based on the evidence before him and on the basis of the criteria created by the relevant legislation. The decision that he came to was reasonably open to him in the circumstances. Therefore, it is not a decision which is reviewable by this Court.
[25] Accordingly, the application for judicial review is dismissed.
[26] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these reasons. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an order will be issued.
"James Russell"
J.F.C.C.
Ottawa, Ontario
February 25, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2214-01
STYLE OF CAUSE:ANTON SZABO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, FEBRUARY 18, 2003
REASONS FOR ORDER
BY: RUSSELL J.
DATED: February 25, 2003
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Mr. M. Max Chaudhary
Barrister and Solicitor
Chaudhary Law Office
255 Duncan Mill Rd.
Suite 405
Toronto, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030225
Docket: IMM-2214-01
BETWEEN:
ANTON SZABO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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