Date: 20100916
Docket: IMM-220-10
Citation: 2010 FC 927
Toronto, Ontario, September 16, 2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
THIRAPHON
PHATHONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms.
Thiraphon Phathong (the “Applicant”) seeks judicial review of the decision of
Immigration Officer Duangchai Sangkum (the “Officer”) made on December 17, 2009.
In his decision, the Officer refused the Applicant’s application, pursuant to
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”) and the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the “Regulations”), for a study permit.
[2]
The
Applicant, a citizen of Thailand, had sought a study
permit to authorize her studies at St. Clair College in Windsor, Ontario.
Her plan was to initially attend eight months of English language
training, to be followed by a two-year Business Accounting program.
[3]
The
Applicant had been accepted as a student by St. Clair College. A deposit in the
amount of $4,500.00 had been paid to that institution by the Applicant’s uncle
who lives in Windsor with his
wife, a sister of the Applicant’s mother.
[4]
The
Officer rejected the Applicant’s application for a study permit because he was
not satisfied that the Applicant would leave Canada upon the
conclusion of her proposed studies. His decision was based upon his assessment
of the written application and supporting material that had been submitted by
the Applicant, as well as his assessment of the Applicant and her answers to
questions posed during a personal interview.
[5]
The
Applicant’s application for a study permit was subject to paragraph 20(1)(b) of
the Act which provides as follows:
|
20.
(1) Every foreign national, other than a foreign national referred to in
section 19, who seeks to enter or remain in Canada must establish,
…
(b)
to become a temporary resident, that they hold the visa or other document
required under the regulations and will leave Canada by the end of the period authorized
for their stay.
|
20.
(1) L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y
séjourner est tenu de prouver :
…
b)
pour devenir un résident temporaire, qu’il détient les visa ou autres documents
requis par règlement et aura quitté le Canada à la fin de la période de
séjour autorisée.
|
[6]
Subsection
216(1) of the Regulations is also relevant to the within matter and provides as
follows:
|
216. (1)
Subject to subsections (2) and (3), an officer shall issue a study permit to
a foreign national if, following an examination, it is established that the
foreign national
(a) applied
for it in accordance with this Part;
(b) will leave
Canada by the end of the period authorized
for their stay under Division 2 of Part 9;
(c) meets the
requirements of this Part; and
(d) meets the
requirements of section 30;
(e) [Repealed,
SOR/2004-167, s. 59]
|
216.
(1) Sous réserve des paragraphes (2) et (3), l’agent délivre un permis
d’études à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont
établis :
a)
l’étranger a demandé un permis d’études conformément à la présente partie;
b)
il quittera le Canada à la fin de la période de séjour qui lui est applicable
au titre de la section 2 de la partie 9;
c)
il remplit les exigences prévues à la présente partie;
d)
il satisfait aux exigences prévues à l’article 30.
e) [Abrogé,
DORS/2004-167, art. 59]
|
[7]
The
Officer’s decision is reviewable on the standard of reasonableness since it
involves the assessment of evidence and the exercise of discretion, see Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190.
[8]
Having
regard to the evidence that was before the Officer, including the oral
responses from the Applicant during the interview, recorded by the Officer
using the Computer Assisted Information Processing System (“CAIPS”), I am
satisfied that the negative decision was reasonable. The Officer was not
satisfied that the Applicant would leave Canada at the end of her studies. He drew this
conclusion from the Applicant’s statements about the desire of her aunt that
the Applicant work in the restaurant operated by her aunt and thereby repay the
financial support that would have been provided by her aunt and uncle.
[9]
In
this application for judicial review the Applicant argued that the Officer had
breached the requirements of natural justice by failing to give her the
opportunity to address his concerns respecting the application for a study
permit.
[10]
In
my opinion, there is no basis for judicial intervention having regard to the
materials that were before the Officer and the contents of the certified
tribunal record. I agree with the submissions concerning the applicable standard
of review for issues of procedural fairness, that is correctness, but otherwise
it is not necessary for me to deal with the Applicant’s arguments.
[11]
In
the results, the application for judicial review is dismissed. There is no
question for certification arising.
ORDER
THIS COURT
ORDERS that the application for judicial review is dismissed, there is
no question for certification arising.
“E.
Heneghan”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-220-10
STYLE OF CAUSE: THIRAPHON PHATHONG v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto,
ON
DATE OF HEARING: September 14, 2010
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
DATED: September 16, 2010
APPEARANCES:
|
Casimir Eziefule
|
FOR THE APPLICANT
|
|
David Cranton
|
FOR THE RESPONDENT
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SOLICITORS OF RECORD:
|
Casimir Eziefule
Barrister and Solicitor
Windsor, ON
|
FOR THE APPLICANT
|
|
Myles J. Kirvan
Deputy Attorney General of Canada
Toronto, ON
|
FOR THE RESPONDENT
|
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