Date:
20120719
Docket:
IMM-9721-11
Citation:
2012 FC 900
Montréal, Quebec, July 19, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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HUSSAIN, TAHIR PASHA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
Overview
[1]
To
obtain a student visa, the Applicant should have submitted, the obvious, evidence
by which to convince the visa officer that he would leave Canada at the end of the authorized period. Specifically, he did not provide a study plan,
a crucial factor by which to prove his reason for travel to Canada.
[2]
Under
the circumstances, the visa officer did not and does not have the duty to hold
an oral interview. As stated by Justice Judith Snider in Ayatollahi v Canada (Minister of Citizenship and Immigration), 2003 FCT 248, 229 FTR 98:
[21] There was not, in my view, a breach of
procedural fairness as a result of the visa officer's failure to put his
concerns to the Applicant. Most importantly, the burden was on the
Applicant to come forward with his best case. He did not do this; specifically,
he failed to give any rationale for his proposed course of studies, other
than to assist his father upon his return. Given the onus on the Applicant, I
believe that it would have been reasonably open to the officer to refuse the
application on that basis alone. [Emphasis added].
(Reference is also made to Duong
v Canada (Minister of Citizenship and Immigration), 2003 FC 834; Danioko
v Canada (Minister of Citizenship and Immigration), 2006 FC 479, 292 FTR
1). As specified above “most importantly, the burden was on the Applicant to
come forward with his best case.”
[3]
As
stated by the Federal Court of Appeal in a unanimous decision by Justices
Létourneau, Rothstein and McDonald, in Wong v Canada [1999] FCJ No 1049:
“We firmly believe the visa officer is entitled, even at the moment of the
first application for such visa, to examine the totality of the circumstances,
including the long term goal of the Applicant”.
I. Introduction
[4]
This
is an application, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of
a decision by a visa officer of the Canadian High Commission, in Islamabad,
Pakistan, dated November 29, 2011, who refused the Applicant's application for
a student permit.
II. Background
[5]
The
Applicant, Mr. Tahir Pasha Hussain, is a 22-year-old citizen of Pakistan.
[6]
The
Applicant applied for a two-year Electrical Engineering program at Humber
College in Toronto, commencing in January 2012.
[7]
The
Applicant applied for a student visa which was refused on November 29, 2011.
III. Decision under Review
[8]
After
having reviewed the evidence submitted by the Applicant, the visa officer was
not convinced that the Applicant would leave Canada by the end of the requested
period. This finding is supported by two reasons: the Applicant’s travel
history and the purpose of his visit.
IV. Issue
[9]
Did
the visa officer err in determining that the Applicant does not meet the
requirements to obtain a student permit?
V. Relevant Legislative
Provisions
[10]
The
following legislative provisions of the IRPA are relevant:
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Application
before entering Canada
11. (1) A foreign
national must, before entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document may be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
Obligation
on entry
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,
(a) to become a
permanent resident, that they hold the visa or other document required under
the regulations and have come to Canada in order to establish permanent
residence; and
(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.
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Visa
et documents
11. (1) L’étranger
doit, préalablement à son entrée au Canada, demander à l’agent les visa et
autres documents requis par règlement. L’agent peut les délivrer sur preuve,
à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et
se conforme à la présente loi.
Obligation
à l’entrée au Canada
20. (1) L’étranger
non visé à l’article 19 qui cherche à entrer au Canada ou à y séjourner est
tenu de prouver :
a) pour devenir un résident
permanent, qu’il détient les visa ou autres documents réglementaires et vient
s’y établir en permanence;
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.
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[11]
The
following legislative provisions of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [Regulations] are relevant:
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TEMPORARY
RESIDENT VISA
Issuance
179. An officer shall
issue a temporary resident visa to a foreign national if, following an
examination, it is established that the foreign national
(a) has applied in
accordance with these Regulations for a temporary resident visa as a member
of the visitor, worker or student class;
(b) will leave Canada by
the end of the period authorized for their stay under Division 2;
(c) holds a passport or
other document that they may use to enter the country that issued it or
another country;
(d) meets the
requirements applicable to that class;
(e) is not inadmissible;
and
(f) meets the
requirements of section 30.
ISSUANCE OF STUDY PERMITS
Study permits
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]
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VISA
DE RESIDENT TEMPORAIRE
Délivrance
179. L’agent délivre un
visa de résident temporaire à l’étranger si, à l’issue d’un contrôle, les
éléments suivants sont établis :
a) l’étranger en a fait, conformément
au présent règlement, la demande au titre de la catégorie des visiteurs, des
travailleurs ou des étudiants;
b) il quittera le Canada à la
fin de la période de séjour autorisée qui lui est applicable au titre de la
section 2;
c) il est titulaire d’un
passeport ou autre document qui lui permet d’entrer dans le pays qui l’a
délivré ou dans un autre pays;
d) il se conforme aux exigences
applicables à cette catégorie;
e) il n’est pas interdit de
territoire;
f) il satisfait aux exigences
prévues à l’article 30.
DELIVRANCE
DU PERMIS D’ETUDES
Permis
d’études
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]
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VI. Position of the Parties
[12]
The
Applicant submits that there is no logical link between his travel history and
the possibility of staying in Canada illegally. He contends that student
permits should not be refused on the basis of generalizations and that the visa
officer should have held a hearing by which to permit the Applicant to respond
to any apprehensions.
[13]
The
Respondent argues that the visa officer’s Computer Assisted Immigration
Processing System [CAIPS] notes support the conclusion reached. The Respondent
is of the view that the Applicant had to prove that he is not an immigrant and
would leave Canada by the end of the authorized period.
[14]
In
addition, the
Respondent submits that no statutory provision requires that a hearing be held
to address doubts arising from evidence.
[15]
The
Respondent contends that the Applicant did not provide a study plan and that an
individual’s travel history is a relevant factor.
VII. Analysis
[16]
It
is trite law that a decision to issue an authorization to enter Canada on a
temporary basis is reviewable under the standard of review of reasonableness
unless the decision-maker has failed to adhere to principles of procedural
fairness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Ji
v Canada (Minister of Citizenship and Immigration), 2001 FCT 786).
[17]
The
context of the case is relevant as to whether the Applicant was denied
procedural fairness; the duty of procedural fairness may vary depending on the
circumstances of each case (Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817).
[18]
The
Applicant argues that the officer did not provide adequate reasons. This Court
disagrees. With regard to the adequacy of reasons, it is noted that, according
to the Supreme Court of Canada, “the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708
at para 14).
[19]
In
a letter sent to the Applicant, dated November 29, 2011, the visa officer
checked off “travel history” and the “purpose of visit” as grounds to support
his determination that the Applicant would not leave Canada by the end of his
stay. In his CAIPS notes, the visa officer noted:
FOSS check completed. Single male, aged 22, to
attend 2.5 yr Electrical Engineering Technology program at the Humber Institute
in Toronto. 1 PR brother in Canada; landed SW1 in 2008; NAI found. Submitted:
LOA, police certificate, IELTS (7.0). Applicant is in the final year of a B.S
(Electronic Engineering) degree program at Sir Syed University. Final exams
will be held in December 2011. Transcripts so far show satisfactory results. Funds:
parents; funds ok. No study plan submitted. Reasons for pursing a
similar program in Canada immediately after completing a Bachelor degree in PK
have not been provided. No personal funds. No evidence of any previous
travel. On balance, not satisfied with BFs or ties. Refused. [Emphasis
added].
(Tribunal Record [TR] at p 13).
[20]
Although,
brief, it appears from the CAIPS notes that the Applicant was informed of
reasons for the refusal of his visa. As stated by this Court, electronic notes
constitute a portion of an administrative decision (Wang v Canada (Minister
of Citizenship and Immigration), 2006 FC 1298, 302 FTR 127 at para 19).
[21]
While
this Court recognizes that the visa officer did, at the outset, contradict
himself, in that, he agreed that funds had been provided by the Applicant’s
parents and further noted that, nevertheless, the Applicant has no personal
funds. This finding, in and of itself, does not have a negative impact on the
decision. Indeed, personal assets and financial status did not constitute
grounds for the Applicant’s visa application, as stated in a letter, dated
November 29, 2011. Other detailed reasons in support of the refusal had also
been provided.
[22]
The
Applicant proposes an interpretative argument to lead this Court to conclude
that the word “examination”, used in subsection 216(1) of the Regulations,
refers to the necessity of holding an oral interview.
[23]
The
visa officer did not have the duty to hold an oral interview. As stated in Ayatollahi
v Canada (Minister of Citizenship and Immigration), 2003 FCT 248, 229 FTR
98:
[21] There was not, in my view, a breach of
procedural fairness as a result of the visa officer's failure to put his
concerns to the Applicant. Most importantly, the burden was on the
Applicant to come forward with his best case. He did not do this; specifically,
he failed to give any rationale for his proposed course of studies, other
than to assist his father upon his return. Given the onus on the Applicant, I
believe that it would have been reasonably open to the officer to refuse the
application on that basis alone. [Emphasis added].
(Reference is also made to Duong
v Canada (Minister of Citizenship and Immigration), 2003 FC 834; Danioko
v Canada (Minister of Citizenship and Immigration), 2006 FC 479, 292 FTR
1).
[24]
The
principal issue is that the Applicant did not submit evidence by which to
convince the visa officer that he would leave Canada at the end of the
authorized period. He did not submit a study plan, a crucial element to prove
the purpose of his travel to Canada.
[25]
Accordingly,
in light of the Applicant’s personal travel history, this Court concludes that
the visa officer did not make a negative finding without having had assessed
the evidence.
VIII. Conclusion
[26]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS
COURT ORDERS that the Applicant’s
application for judicial review be dismissed. No question of general importance
for certification.
“Michel M.J. Shore”
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