Date: 20101222
Docket: IMM-1498-10
Citation: 2010 FC 1321
Ottawa, Ontario, December 22,
2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
|
|
KWAKU AMAKYE BANFUL
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision of an immigration officer in
Windsor, Ontario, dated January 12, 2010, refusing the applicant’s request for
restoration of a study permit under section 182 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations) because the
applicant is not a “bona fide student”.
FACTS
Background
[2]
The
applicant is a 26-year-old citizen of Ghana.
He entered Canada on August 13, 2004, and was
issued a study permit valid until May 20, 2005. His study permit was twice
extended, and last expired on September 30, 2009. On November 2, 2009, the
applicant applied for a restoration of his study permit. It is the officer’s
refusal, on January 12, 2010, to restore the study permit that is the subject
of this judicial review application.
[3]
After
arriving in Canada, the applicant first attended
Columbia
International College. He then registered at the University of Windsor (the University),
in the Honours Bachelor of Arts program in International Relations and
Development Studies. After his second year, the applicant was placed on
academic probation and attended St. Clair College for three remedial semesters,
from the fall of 2007 to the fall of 2008, before returning to the University.
[4]
Since
entering Canada, the applicant has had
several encounters with the law:
1.
On
November 24, 2008, the applicant was a passenger in a friend’s motor vehicle in
which police found under the driver’s seat, on a routine stop and search,
approximately 1 ounce of cocaine. Charges against the applicant were stayed by
the Crown.
2.
In April
of 2009, the applicant was again stopped by police while driving. The applicant
did not consent to a vehicle search, but accepted a ride home in the police vehicle
after the police towed the applicant’s vehicle due to suspicions regarding the
validity of his license. Prior to entering the police vehicle, the applicant
submitted to a search of his person and backpack, during which the police found
approximately 4 ounces of marijuana. The applicant was arrested for possession,
and released on recognizance with conditions. One of the conditions was that 24
hours in advance of any change in his address he had to notify the Ontario
Provincial Police. The Crown later withdrew charges against the applicant for
possession of marijuana on July 30, 2009.
3. In June of 2009 the applicant
was attacked with a machete. At his interview, he told the immigration officer
that he did not report this incident to the police because he knew that there
was an outstanding warrant for his arrest.
4. On September 20, 2009, the
applicant’s former roommate was shot outside a residence. The shooter asked the
roommate if he knew the applicant before the shooter shot the roommate. The
shooter was the same person who had previously attacked the applicant with a
machete in June of 2009. When police attended the scene, they discovered that
the residence was the applicant’s residence, and that it was a different
address from the one on his recognizance. The applicant was therefore arrested
and charged with failure to comply with his recognizance.
5. At his interview with the
immigration officer, the applicant admitted that he had missed a court date on
October 20, 2009, in relation to his breach of recognizance. He notified the
immigration officer that he would turn himself in the day following his
interview. There is no evidence regarding whether the applicant did, in fact,
turn himself in to the police following the interview.
Decision under Review
[5]
On January
12, 2009, the immigration officer rejected the applicant’s request for
restoration of his study permit because the officer did not believe that the
applicant was a “bona fide student”. In her reasons, the officer
considered the applicant’s responses to the questions at the interview, which
was held on November 19, 2009.
[6]
The
officer stated:
1. that the applicant is
supported by his family in Ghana, who pay for his studies and
daily needs in Canada;
2.
that although
the applicant is not himself associated with any criminal gang, the officer
stated that the applicant associated with his former roommate’s cousin, Tian,
who the applicant knew was a member of a gang; and
3. that the applicant admitted at
the interview that he smokes marijuana, and that his friend “Stones,” grows
marijuana.
[7]
The
applicant initially dishonestly answered in the negative the written question on
the application form for the visa of “whether he had ever been convicted of or
charged with a crime or offence in any country”. The officer found subsequent
questions revealed the charges described above – namely, the 2008 charge for
cocaine possession, the April 2009 charge for marijuana possession, the
September 2009 charge for failure to comply with his recognizance, and the
bench warrant issued following his failure to attend at his October 2009 court
date.
[8]
The
officer also interviewed the applicant regarding statements that he had made at
an interview on September 21, 2009, with a different immigration officer, regarding
the June 2009 attack made on him by a person with a machete. The officer stated
that the applicant explained the nature of the attack and “stated that he did
not report this to the police as he knew there was a warrant out for him and
his injuries were not life threatening.”
[9]
The
officer reviewed the applicant’s academic history. The officer noted that the
applicant’s grades at the University were consistently low.
[10]
After
reviewing the applicant’s explanations for the encounters with law enforcement
authorities and for his poor academic performance, the officer concluded that
the applicant’s study permit should not be restored. The officer provided three
bases for this conclusion – (1) the applicant’s academic history does not demonstrate
that his studies are a priority; (2) the applicant’s admissions at the
interview suggest he will not comply with relevant legislation; and (3) the
applicant was not credible with regard to his explanations for his admitted
misdeeds. The officer stated at page 5 of the decision:
I am not satisfied that the applicant is
a bona fide student. His marks and the fact that he previously failed out of
his program and has remained on academic probation, in my opinion, indicate
either that his studies are not his first priority, or that the course of study
is too difficult for him. The applicant states he attended summer session to
bring up his marks, however, I am not satisfied that his effort illustrates
that he is a bona fide student.
I am not satisfied that the applicant
will comply with Immigration legislation or Canadian laws for that matter. He
self-admitted illegal activity (being a pot smoker) to me at interview, as well
as knowing and affiliating with criminals (Tian, an alleged Crips member, and Stones
his friend who grows pot).
I am also not satisfied that the
applicant is credible. Many of his responses to me at interview did not appear
credible. For instance, his statement that he did not notify the O.P.P. of his
change of address as required by his release order due to the fact that he
couldn’t get a hold of his lawyer. I question the credibility of other
statements, for instance, that he was never threatened prior to the shooting
that occurred in his home, but then later admitted to being attacked at his
previous apartment by a man with a machete. The applicant also misrepresented
the fact that he had criminal charges on his application for restoration.
The applicant is also subject to a bench
warrant because he failed to attend his court date, and had breached his order
of recognizance.
As I am not satisfied that the applicant
is a bona fide student, and that he will comply with Immigration laws and
regulations, the applicant cannot be restored pursuant to Regulation 182 of the
Immigration and Refugee Protection Regulations. Therefore, the application is
refused.
LEGISLATION
[11]
Section
182 of the Regulations provides that a visa officer may restore a temporary
resident’s visitor, worker or student status under certain conditions:
|
182.
On application made by a visitor, worker or student within 90 days after
losing temporary resident status as a result of failing to comply with a
condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to
(iii) or paragraph 185(c), an officer shall restore that status if, following
an examination, it is established that the visitor, worker or student meets
the initial requirements for their stay and has not failed to comply with any
other conditions imposed.
|
182.
Sur demande faite par le visiteur, le travailleur ou l’étudiant dans les
quatre-vingt-dix jours suivant la perte de son statut de résident temporaire
parce qu’il ne s’est pas conformé à l’une des conditions prévues à l’alinéa
185a), aux sous-alinéas 185b)(i) à (iii) ou à l’alinéa 185c), l’agent
rétablit ce statut si, à l’issue d’un contrôle, il est établi que l’intéressé
satisfait aux exigences initiales de sa période de séjour et qu’il s’est
conformé à toute autre condition imposée à cette occasion.
|
ISSUE
[12]
The
applicant submits that the immigration officer’s decision raises the following
issue:
1. Did the visa officer err in
law by basing her decision or order on an erroneous finding of fact that she
made in a perverse and capricious manner or without regard to the material
before her when she found that the applicant did not satisfy the requirement of
a bona fide student leading to the refusal of his application for restoration
of status as an international student?
STANDARD OF REVIEW
[13]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, 2008] 1 S.C.R. 190, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded
with regard to a particular category of question”: see also Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, per
Justice Binnie at para. 53.
[14]
Post-Dunsmuir
jurisprudence has established that the appropriate standard of review
applicable to factual determinations is reasonableness: see also, for example, Saleem
v. Canada (Citizenship and Immigration), 2008 FC 389, at para. 13; Malveda
v. Canada (Citizenship and Immigration), 2008 FC 447 at paras. 17-20;
Khokhar v. Canada (Citizenship and Immigration), 2008 FC 449 at paras. 17-20,
and my decision in Dong v. Canada (Citizenship and Immigration), 2010 FC 55, at para. 17.
[15]
In
reviewing an officer’s decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, supra, at paragraph 47; Khosa, supra,
at para. 59.
ANALYSIS
Issue No. 1: Did the officer err by
basing her decision or order on an erroneous finding of fact made in a perverse
and capricious manner or without regard to the material before her when she
found that the applicant did not satisfy the requirement of a bona fide student
leading to the refusal of his application for restoration of status as an
international student?
[16]
The
applicant submits that the visa officer based her decision upon two erroneous
factual findings:
1. the applicant submits that the
officer was mistaken when the officer stated that the applicant “previously
failed out of his program and has remained on academic probation . . . .” To
the contrary, the applicant submits that he rehabilitated his status by attending
the three remedial semesters, and is eligible to continue his studies once his
immigration status is restored; and
2. The officer was also mistaken
when the officer stated that the applicant had pleaded guilty to the charge of
possession of cocaine, whereas the charge had in fact been stayed by the Crown.
[17]
Although
the immigration officer may not have used the correct terminology when
referring to the applicant’s academic history, it is clear that the officer’s
assessment of the applicant’s bona fides as a student was based upon a
consideration of his poor academic performance since his arrival in Canada. The
applicant has provided no evidence to suggest that the facts stated by the
officer with regard to the applicant’s marks or his time in remedial courses
were mistaken. The officer’s conclusion that this history does not support a
finding that the applicant is a bona fide student was reasonably open to the
officer on those facts.
[18]
With
regard to the officer’s erroneous statement that the applicant pleaded guilty
to the cocaine charges, the Court finds that this did not materially impact the
decision. That statement was made in the officer’s review of the facts but did
not form a basis for the decision. Instead, the officer’s conclusion regarding
the applicant’s likelihood to comply with Canadian laws was based upon the
officer’s findings regarding the applicant’s admitted marijuana smoking and his
affiliation with known criminals:
He self-admitted illegal activity (being
a pot smoker) to me at interview, as well as knowing and affiliating with
criminals (Tian, an alleged Crips member, and Stones his friend who grows pot).
[19]
In
order to constitute a reviewable error, the officer’s erroneous factual finding
would have to have materially affected the decision, or would have had to have
been made in a perverse or capricious manner, without regard to the material
before her: Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d). In
this case, it is clear that the officer thoroughly reviewed the applicant’s
evidence and gave him an opportunity to respond to all of her concerns. Her
decision to reject his application was based upon three sound reasons set out
above in paragraph 10 of this Judgment that are justifiable, transparent, and
intelligible, and fall within the range of possible outcomes acceptable in
light of the facts and the law.
CONCLUSION
[20]
The Court concludes
that the officer’s decision regarding the applicant’s bona fides as a
student in Canada and willingness to comply
with Canadian legislation was reasonably open to the officer based upon the
evidence. The officer considered the applicant’s explanations, but was not
ultimately persuaded on a balance of probabilities. As the findings were
reasonable, this Court has no basis for interfering with the officer’s
decision.
CERTIFIED QUESTION
[21]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
The application for judicial
review is dismissed.
“Michael
A. Kelen”
Email this Content