Date: 20000127
Docket: IMM-1868-99
BETWEEN:
LASLONE LINTNER
(a.k.a. Irina Kalachnikova)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN, J.
Introduction
[1] The applicant is seeking judicial review of the decision of a visa officer, based at the Canadian Embassy in Bucharest, Romania, to refuse the applicant"s application for a visitor"s visa. The applicant requests an Order quashing the decision of the visa officer and directing the Embassy Visa Section to accept and approve her application for a visitor visa for herself and her daughter.
Facts
[2] The applicant is a national of Moldova who attended at an interview for a visitor"s visa application with a visa officer. The visa officer concluded she did not meet the burden of satisfying the officer that she was a visitor seeking temporary entry to Canada and that she would leave Canada at the end of her visit. The rejection form letter dated 10 December 1998 had the following checked-off as the reasons:
| You have not satisfied the visa officer that you have sufficient ties to your country of residence which would ensure your return to that country. |
| You have not satisfied the visa officer that you would be willing or able to return to your country of residence after your visit to Canada. |
| You are presently unemployed. |
| You have not provided a credible or compelling reason for visiting Canada. |
[3] The applicant indicated in her application that she wished to visit Canada "to see my friend and brother at [Christmas] time".1 Her brother is landed in Canada and lives in Ottawa. The friend she wished to visit is resident in Newfoundland. She also stated on her application that she had been in Canada before and that she had been ordered to leave. It was disclosed in the interview that she had made an application for refugee status in 1992. Her application was refused and a conditional removal order was issued automatically. (She later stated that she left voluntarily and was not forcibly deported.)
[4] When asked regarding her relationship with the friend in Newfoundland, Mr. Murphy, the applicant said that she had met him while she was in Canada in 1994 and had fallen in love with him. The visa officer asked why the applicant did not apply for a family class immigration visa to be with the friend. The applicant said that she did not because he was still married. She was not sure if he is divorced or not.
[5] It was also determined at the interview that the father of her minor child is in Canada.
Issues
[6] The applicant alleges that the visa officer erred in fact or law by:
making findings of fact in a capricious manner or without regard to the material put before her by concluding that the relationship between the applicant and Mr. Murphy was that of an engaged to be married couple and concluding that the applicant would not return to Moldova;
by breaching the principles of natural justice by forming her decision in a capricious and arbitrary manner by concluding that the applicant"s reasons for wishing to visit her brother and friend was not "credible or compelling";
by considering factors that were not relevant to the decision being made. (No specific evidence is pointed to for this factor.)
by failing to take into account the applicant"s credible or compelling reason for visiting Canada. (This issue is raised in the Applicant"s Supplementary Record).
Analysis
[7] Pursuant to the section 8 of the Immigration Act2 and Regulations, the onus is on persons applying for a visitor"s visa to prove that their admission would not be contrary to the Act and Regulations and to prove that they are not immigrants. The following are the most relevant portions of the Immigration Act :
| "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
| (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). |
|
"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). |
|
| 8. (1) 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.
|
8. (1) 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.
|
| (2) 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.
|
(2) 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.
|
| 14(3) Where an immigration officer is satisfied that it would not be contrary to this Act or the regulations to grant entry to a visitor whom the officer has examined, the officer may grant entry to that visitor and impose terms and conditions of a prescribed nature.
|
14(3) L'agent d'immigration qui est convaincu, après interrogatoire d'un visiteur, que l'octroi de l'autorisation de séjour ne contreviendrait pas, dans son cas, à la présente loi ni à ses règlements peut la lui accorder en l'assortissant éventuellement de conditions réglementaires.
|
From the Immigration Regulations, 1978:3
| 13. (1) A visitor who is a person referred to in Schedule II is not required to make an application for and obtain a visa before he appears at a port of entry.
|
13. (1) Un visiteur visé à l'annexe II n'est pas tenu de présenter une demande de visa ou d'obtenir un visa avant de se présenter à un point d'entrée.
|
| (2) A visa officer may issue a visitor's visa to any person who meets the requirements of the Act and these Regulations if that person establishes to the satisfaction of the visa officer that he will be able
| (a) to return to the country from which he seeks to come to Canada; or |
| (b) to go from Canada to some other country. |
|
(2) L'agent des visas peut délivrer un visa de visiteur à toute personne qui satisfait aux exigences de la Loi et du présent règlement, si cette personne prouve, d'une façon jugée satisfaisante par l'agent des visas, qu'elle pourra
| a) retourner dans le pays d'où elle sollicite l'admission au Canada; ou |
| b) se rendre dans un autre pays. |
|
| (3) A diplomatic or consular officer of Canada may, while he is outside Canada, issue a visa to any person who in Canada may be granted privileges or immunities in accordance with the law of Canada as a representative or official of a foreign government or international organization.
|
(3) Un agent diplomatique ou un fonctionnaire consulaire du Canada peut, pendant qu'il se trouve à l'extérieur du Canada, délivrer un visa à toute personne qui, au Canada, peut se voir accorder les privilèges et immunités conformément à la loi du Canada à titre de représentant ou de fonctionnaire d'un gouvernement étranger ou d'une organisation internationale.
|
| (4) Every visitor who is required to obtain a visa, student authorization or employment authorization before he appears at a port of entry shall be in possession of a valid visa, student authorization or employment authorization, as the case may be, when he appears at a port of entry.
|
(4) Tout visiteur qui est tenu d'obtenir un visa, une autorisation d'étude ou une autorisation d'emploi avant de se présenter à un point d'entrée doit être en possession, lorsqu'il s'y présente, d'un visa, d'une autorisation d'étude ou d'une autorisation d'emploi valides, selon le cas.
|
Standard of review
[8] In my opinion, the issues being raised are primarily questions of fact and mixed fact and law. Because subsection 13(2) of the Immigration Regulations provides that the visa officer may issue a visitor"s visa in certain circumstances, it is a discretionary decision. Following Baker4 and Pushpanathan,5 the standard of review for such discretionary decisions is reasonableness. For simple findings of fact, the standard is, in my opinion, also reasonableness.6
[9] The applicant alleges that the visa officer erred by making findings of fact in a capricious manner or without foundation in the material before her by making conclusions regarding the nature of the relationship between the applicant and Mr. Murphy. The visa officer states in her affidavit and in cross-examination thereon that the main reason why the visa was refused was because she concluded that the applicant had insufficient ties to her country of residence. It was noted that the applicant did not have a strong relationship with her parents and that she was unemployed. The applicant answered that she had fallen in love with Mr. Murphy when she was in Canada claiming refugee status. No mention was made, nor was any question asked, regarding the current status of the applicant"s affections for Mr. Murphy. The applicant alleges that the visa officer concluded that the applicant and Mr. Murphy were engaged, but the record does not offer any evidence to support the allegation. In my opinion, there was sufficient evidence before the decision-maker to support the conclusions arrived at. A careful reading of the submissions does not reveal any underlying irrationality nor any irrelevant evidence relied upon. The status of the applicant"s relationship with Mr. Murphy is relevant to the officer"s obligation to determine the intentions of the applicant to leave Canada following a visit. The applicant"s relationship with her family, her previous attempt to immigrate, and her employment status are probative of her connection to her country of residence, which is also relevant to the applicant"s intentions to leave Canada at the expiry of her visa, were one granted.
[10] The applicant further alleges that the visa officer breached the principles of natural justice by coming to her decision in a capricious and arbitrary manner by concluding that the applicant"s reasons for wishing to visit Canada were not "credible or compelling". The form letter provided to the applicant listed, as one of the pre-printed reasons, which was checked off: "You have not provided a credible or compelling reason for visiting Canada." The applicant submits that it is sufficient to satisfy this requirement by offering a reason that is either credible or compelling. Otherwise, the box next to that statement should not have been checked off. The visa officer acknowledged that the reasons given by the applicant were credible, but not compelling. The respondent argues that the box was checked off by the visa officer, who interpreted the statement in good faith to mean that if the reason was either not compelling or not credible, the box should be checked off. Nevertheless, the respondent argues, the visa officer had already decided that the applicant was not likely to leave Canada at the end of her visit and any error on this statement on the form would not have affected the outcome of the decision. In my opinion, the respondent is correct and any misinterpretation of this sentence is not a reviewable error.
[11] In argument, the applicant made submissions on the relevance of whether or not the applicant is employed to the decision of whether a visitor"s visa should be issued. The argument that such a consideration would lead to the exclusion of retired tourists or students is, in my opinion, absurd. Whether the applicant is employed is but one factor among many. Employment status is evidence for answering the important question, will the applicant leave Canada at the expiry of the visa? The applicant also argued that other factors considered by the visa officer were irrelevant and, thus, tainted the decision. The applicant"s relationship with her parents in and her relationship with Mr. Murphy in Canada are clearly relevant for the same reason. Whether the applicant has nothing to return to in her country of residence (such as a family or a job) or whether she would be inclined to stay in Canada to pursue a relationship is clearly relevant.
Conclusion
[12] In my opinion, there is ample evidence in the record to support the decision of the visa officer. It cannot be said that the decision was irrational or that it was not grounded in the facts before her. The issuance of a visitor"s visa is a discretionary decision of the visa officer and the decision must be reasonable. In my opinion, such was the case here.
Decision
[13] The application for judicial review shall be dismissed.
Ottawa, Ontario
January 27, 2000
B. Cullen
J.F.C.C.
__________________
1 Page 7 of Respondent"s Record.
2 R.S.C. 1985, c. I-2.
3 SOR/78-172.
4 Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39, (1999) 174 D.L.R. (4th) 193.
5 Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
6 The applicant cites Singh v. Canada (Minister of Employment and Immigration) (1993), 69 F.T.R. 142 (T.D.) and concludes that the standard applicable in this case is reasonableness.
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