Date: 20010831
Docket: IMM-4808-00
Neutral citation: 2001 FCT 983
BETWEEN:
MWANAISHA OMAR MOHAMED
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE, J.
PROCEEDINGS
[1] This is an application for judicial review of the decision of a Visa Officer dated August 30, 2000, wherein she refused the applicant's application for a Student Visa. The application was refused on the grounds that the Visa Officer was not satisfied that the applicant was a bona fide visitor to Canada.
ORDER SOUGHT
[2] The applicant seeks an Order setting aside the above decision and referring the application back to the Visa Office for reconsideration by another Visa Officer.
BACKGROUND FACTS
[3] The applicant, Mwanaisha Omar Mohamed, is a citizen of Kenya. The applicant lives with her parents and brother and sister in Mombasa, Kenya and is employed as a secretary at her family's garage. The applicant has a brother who resides in Calgary.
[4] The applicant had made a previous application for permanent residence in Canada which was denied in 1999. As a consequence of this decision, the applicant decided to upgrade her education in the field of "electronic engineering technology" and applied to a technical school in Calgary. In November of 1999, the applicant learned she was accepted to the technical school for a three year program. Consequently, the applicant sought a Student Visa to enter Canada.
[5] The applicant retained counsel to put forth submissions on her behalf in support of her application for a Student Visa. The applicant submitted that her brother and his family would support her during her studies. Furthermore, applicant's counsel indicated by letter dated January 28, 2000, the following:
We recognize that it is and remains incumbent upon Mwanaisha to prove that she is not attempting to immigrate to Canada through a student visa. To that purpose Mwanaisha confirms the following:
1. That her mother, father, brother and sister all continue tor reside in Kenya.
2. That upon the completion of her education she has excellent employment awaiting her in Kenya as her father owns a motor vehicle repair business that has been thriving for the past 15 years. She is currently working there on a full time basis as a secretary but her father would like her to take greater responsibilities upon her return to Kenya. Her training at DeVry will improve her electronic and other technical skills and give her a strong educational base in which to succeed in Kenya.
3. That she has a residence in Kenya located in Mombasa, Kenya in Uhuru Garden. This residence has been her home residence for over 30 years and she lives there with the above mentioned family members.
It is her intention to complete her education and assess her prospects for immigration at that time. Although she views Canada as being a prosperous country that her brother has been very successful in, she also has a significant opportunities in Kenya. She requests that you interview her so that she may be given an opportunity to express her sincerity in relation to her future plans. Her brother pledges financial commitment for her while she is in Canada and agrees to post a financial bond (at port of entry or otherwise) to ensure that she will leave Canada as and when required.
[6] The applicant's application was refused by a Visa Officer in a letter dated February 29, 2000. It is unclear from the record as to whether the applicant was interviewed before the February 29, 2000 decision. The applicant filed an application for judicial review of this decision and by letter dated May 18, 2000, the respondent confirmed that it was willing to set aside the refusal of February 29, 2000. By Order of Prothonotary Hargrave dated July 6, 2000, the decision was set aside and the matter was referred back for redetermination by a different Visa Officer. As a result, the applicant was interviewed by another Visa Officer on August 29, 2000. By letter dated August 30, 2000, the applicant's application was refused.
RELEVANT LEGISLATION
[7] Subsection 9 (1.2) of the Act:
9. (1.2) A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant.
Section 10 of the Act:
10. 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 en 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.
Subsection 15 (1) of the Immigration Regulations, 1978, SOR/78-172
15.(1) Every application for a student authorization shall be accompanied by
(a) a letter from a university, college or other institution referred to in paragraph 10 (a) or (b) of the Act accepting the applicant to attend or to take any specified course at the university, college or other institution;
(b) sufficient documentation to enable an immigration officer to satisfy himself that the applicant has sufficient financial resources available to him, without engaging in employment in Canada,
(i) to pay his tuition fees,
(ii) to maintain himself and any dependants who will come into Canada during the period for which he seeks a student authorization, and
(iii) to pay the transportation costs to and from Canada for himself and any dependants referred to in subparagraph (ii); and
(c) the consent in writing of the government of the province in which the applicant wishes to study where such consent is required by that government pursuant to an agreement entered into by the Minister with that government pursuant to section 109 of the Act.
ISSUES
[8] 1. Did the Visa Officer breach the duty of fairness in making a negative decision
without first providing the Applicant an opportunity to respond to any concerns the Visa Officer may have had?
2. Did the Visa Officer base her decision on irrelevant consideration?
3. In reaching the decision in this case, did the Visa Officer err in law, in particular in her conclusion that the Applicant was not seeking entry into Canada for a temporary purpose?
ANALYSIS AND DECISION
Issue #1
1. Did the Visa Officer breach the duty of fairness in making a negative decision without first providing the Applicant an opportunity to respond to any concerns the Visa Officer may have had?
[9] The applicant submits that the visa officer breached the duty of procedural fairness
owed to her by basing her decision on the fact that the visa officer knew that economic conditions and general living conditions were unfavourable in Kenya without telling the applicant. The applicant submits that the visa officer ought to have advised the applicant of these concerns and facts and given the applicant an opportunity to answer these concerns. I have reviewed the record that was before the visa officer and there is no mention of the unfavourable economic conditions and general living conditions in Kenya.
[10] The visa officer in paragraphs 10, 11 and 12 of her affidavit stated:
10. As a result of my posting in Kenya, I know that the Kenyan economy is doing poorly, and that living standards in Kenya are far lower than they are in Canada.
11. Following the interview with the Applicant, I concluded that the Applicant was a 32-year-old single person, who had only ever worked at low-paid (by Canadian standards) jobs, was living in a country which was facing grave economic and socio-political problems and was claiming to be going to Canada to pursue studies unrelated to any field that she had ever worked or studied in.
12. My conclusion following my interview with the Applicant and my review of the Application, and having regard to general conditions in Kenya, was that the Applicant was not likely to return to Kenya from Canada, and that the Applicant was most likely an intending immigrant. I did not find her statements that following the course of her studies in Canada she intended to return to work as a secretary in the family business or that she may open a business of her own in Kenya, to be credible.
[11] The following is taken from the transcript of the cross-examination of the visa officer at P. 48 of the Tribunal Record:
12 Q. In terms of the circumstances that you speak about in
13 Kenya and in Nairobi, at some part in your affidavit
14 you talk about the Kenyan economy doing poorly and all
15 of that. Was there anything on file - where is the
16 evidence of that? Where did you derive that
17 information from or that knowledge from?
18 A. General knowledge here in Kenya.
19 Q. And did you speak to Ms. Mohamed about the Kenyan
20 economy or her situation - or the situation in Kenya?
21 A. The general economic situation in Kenya, no.
22 Q. And did you take into account the fact that her family
23 was established in Kenya and did have a relatively
24 successful family business?
25 A. Um-hum, yeah. I understand that they do have a
26 business in Mombasa and that her family is, you know,
27 relatively well off here.
At Page 49 of the Tribunal Record:
1 By the way, I didn't bring up the whole issue of
2 the Kenyan economy because the applicant was not able
3 to show me any evidence to the contrary.
4 Q. Did you take into account the fact that she did have a
5 job waiting for her when she came back?
6 A. Yeah, yeah, yeah. And I took into account, you know,
7 the nature of the job.
8 Q. Did that have any impact on your decision in terms of
9 the fact that the Kenyan economy was doing poorly, but
10 she did have a job awaiting her if she came back to
11 Kenya?
12 A. Frankly, it's not a great job. It's not something -
13 you know, I didn't consider it to be - I didn't
14 consider it to be a pull factor. I recognized that it
15 was there. Again, I didn't think that that would be
16 something that would cause her to return here.
17 Q. When you say that it wasn't a great job, what did you
18 base that on?
19 A. Well, amongst other things, it's not a very
20 well-paying job. Now, appreciate the last salary that
21 I had seen was from a few years ago. But what was it,
22 4,000?
23 Q. Yes. Right.
24 A. 4,000 Kenyan shillings a month is about 80 Canadian,
25 and that's at today's exchange rate.
26 Q. In your affidavit, you talk about how Kenya was facing
27 grave economic and sociopolitical problems. I guess
And at page 50 of the Tribunal Record:
1 in this you're referring to the fact that the country
2 is facing these problems. Did you have any concerns
3 that Ms. Mohamed was facing similar problems?
4 A. People who live here regardless of what side of
5 society they're from are affected.
6 Q. And did you ask her about whether she was facing any
7 of these economic or sociopolitical problems?
8 A. No, I didn't put that to her. But I know, for
9 example, that all across Kenya electricity has been
10 very, very, sporadic, and that this has been affecting
11 businesses - - the businesses planned ahead or
12 whatever - actually any business that wanted to stay
13 afloat bought a generator. But, of course, generators
14 and the fuel and all the rest of it are extra costs
15 and, you know, may not be able to - I mean depending
16 on the electricity needs, the generator has to be -
17 more generators or whatever. Everybody is affected by
18 this. Everybody. From the very richest to the
19 very - especially the very poor.
20 So no, I didn't ask her specifically. But, you
21 know, when you're living in a general situation, you
22 know, everybody is affected by it in one way or
23 another.
[12] A review of this evidence leaves no doubt that conditions in Kenya were a
factor in the visa officer's decision.
[13] The applicant also referred me to section 2.7.4 of the Department's
document entitled, "Processing Student Authorizations" which states:
2.7.4 Bona Fides As indicated above, there is no distinction in law between minor students and those who are of the age of majority. Bona fides of all students must be assessed on an individual basis; refusals of non-bona fide students may only withstand legal challenge when the refusal is based on the information related to the specific case before the officer. Therefore, while cultural context or historical migration patterns of a client group may be a contributing factor to the decision-making process, they alone are not valid, legally tenable grounds for refusal on bona fides. If officers wish to take into account outside information particularly where that information leads to concerns/doubts about the applicant's bona fides, they must be able to show that the applicant was made aware of the information taken into account and/or the concerns and was given an opportunity to address those concerns. The onus, as always, remains on the applicant to satisfy the assessing officer that she is not an intending immigrant, that she is a bona fide visitor who will leave Canada following the completion of his/her studies pursuant to section A9 (1.2). Refusals on these grounds should cite this particular section of the Act and not those found under section A8 (2).
[14] In Mittal (Litigation Guardian of) v. Canada (Minister of Citizenship and
Immigration) [1998] F.C.J. No. 727, Lutfy, J. (as he then was) stated at paragraph 12 of his decision:
¶ 12 There are at least two serious concerns with the visa officer's finding concerning the absence of credible reasons for studying in Canada. Firstly, the record discloses no information concerning the availability and the quality of private schooling in India. Secondly, even if the visa officer had access to such information and she were correct with respect to India's private school system, she should have provided the applicants' family with an opportunity to address her concerns which are based on information not proffered by the applicants. Such a course of action is suggested in the Guideline in section 2.7.4 dealing with the bona fides of minor students:
If officers wish to take into account outside information, particularly where that information leads to concerns/doubts about the applicant's bona fides, they must be able to show that the applicant was made aware of the information taken into account and/or the concerns and was given an opportunity to address those concerns.
This directive properly, in my view, assigns to the visa officer the same duty of fairness in the assessment of student authorizations which the Court of Appeal imposed in reviewing applications for permanent residence. [See Note 7 below] In this case, the visa officer chose to dispose of the applications without communicating with the applicants' family through an interview or otherwise concerning the information she obtained with respect to the quality and cost of private schooling in India.
I adopt the statements of Lutfy, J. (as he then was). In my view the use of the evidence concerning the conditions in Kenya without giving the applicant an opportunity to address this evidence was a breach of the duty of procedural fairness. This conclusion is fortified by the respondent's own document in paragraph 2.7.4.
[15] The application for judicial review is therefore allowed.
[16] Because of my disposition of Issue 1 it is not necessary that I deal with
Issues 2 and 3.
[17] Neither party wished to certify a serious question of general importance.
ORDER
IT IS ORDERED that the application for judicial review is allowed.
"John A. O'Keefe"
JUDGE
Halifax, Nova Scotia
August 31, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4808-00
STYLE OF CAUSE:Mwanaisha Omar Mohamed
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: August 21, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: August 31, 2001
APPEARANCES:
Peter Wong for Applicant
Tracy King for Respondent
SOLICITORS OF RECORD:
Caron & Partners, LLP
16th Floor, Canterra Tower
1600, 400 - 3rd Avenue SW
Calgary, AB
T2P 4H2 for Applicant
Morris A. Rosenburg
Deputy Attorney General of Canada
Department of Justice
211, 10199 - 101 Street N.W.
Edmonton, AB T5J 3Y4 for Respondent
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