Date:
20120907
Docket:
IMM-673-12
Citation:
2012 FC 1063
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
September 7, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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EZZAT TAVAKOLI
DINANI
ABDOLAH ABDOLAHI
NEISIANI,
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Applicants
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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
I. Preliminary
[1]
This
case involves parents who want to temporarily visit their children residing in
Canada for the purposes of meeting their son’s fiancée and attending their
wedding.
[2]
This
Court has already recognized the importance of the objective of family
reunification in a discretionary decision-making context (Khatoon v Canada
(Minister of Citizenship and Immigration), 2008 FC 276).
[3]
Furthermore,
Citizenship and Immigration Canada’s policy and program Manual OP-11 on the
overseas processing of temporary resident applications (Manual OP-11) encourages
flexibility in the process of issuing visas to parents:
Parents and grandparents
In April 2005, the Minister of Citizenship and
Immigration made a policy decision to encourage visa officers to be more
flexible in issuing temporary resident visas (TRV), including multiple-entry
visas, to parents and grandparents:
• who have applications for permanent residence in
process; and
• who wish to visit but do not intend to
immigrate to Canada.
[Emphasis added.]
(Manual OP-11 at page 7).
II. Judicial procedure
[4]
This
is an application for judicial review presented in accordance with subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA),
of a decision dated December 18, 2011, by a visa officer from the Canadian
Embassy in Tehran, Iran, refusing the applicants a temporary resident visa.
III. Facts
[5]
The
principal applicant, Ezzat Tavakoli Dinani, a retired nurse, and her spouse,
the applicant, Abdolah Abdolahi Neisiani, a retired doctor, are Iranian
citizens.
[6]
They
have four children together. Two of their daughters are still their dependent
children and attend university in Iran, one in chemical engineering and the
other in medicine.
[7]
Their
third daughter is married and has been living in Canada since February 2007. Their
son, Meisam Abdolahi Neisiani, has been living in Canada since September 2005.
[8]
The
applicants sought a temporary resident visa from the Canadian Embassy in Tehran
with the aim of visiting their children who reside in Canada. They wanted to
meet their son’s fiancée and attend the wedding.
[9]
On
December 18, 2011, their temporary resident visa was refused.
IV. Decision under review
[10]
First,
the visa officer’s refusal was based on his belief that the applicants would
not leave Canada at the end of the authorized stay period because of their
travel history and their family ties in both Iran and Canada.
[11]
Second,
the visa officer was not convinced that the applicants had sufficient financial
resources to support themselves during their stay and to ensure their return to
Iran.
V. Issue
[12]
Did
the visa officer err by refusing the temporary resident visa application?
VI. Relevant statutory
provisions
[13]
The
following 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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[14]
The
following provisions of the Immigration
and Refugee Protection Regulations, SOR/2002-227 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.
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VISA
DE RÉSIDENT 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.
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VII. Position of the parties
[15]
The
applicants argue that the visa officer did not respect Manual OP-11. In fact,
the manual indicates that the Minister of Citizenship and Immigration
encourages the issuance of temporary resident visas to parents and
grandparents. Thus, the visa officer should have considered that the applicants
were travelling to visit their two children who reside in Canada. The
applicants maintain, in this regard, that the officer should have given them
the opportunity to be heard on the merits of their application in order to comply
with the rules of natural justice.
[16]
Furthermore,
the applicants argue that the visa officer did not examine the evidence
submitted supporting their financial ability to support themselves during their
stay and to ensure, by this very fact, their return to Iran.
[17]
The
respondent argues that the applicants did not submit evidence that could
satisfy the visa officer that they would leave Canada at the end of the
authorized period. He claims that visa officers are under no obligation to
orally interview applicants.
VIII. Analysis
[18]
The
visa officer’s decision was discretionary and the standard of review that is
well-settled by past jurisprudence is reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador Nurses' Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).
[19]
With
this in mind, it is important to focus on the officer’s decision-making
process, which must be transparent and intelligible (Dunsmuir, above).
[20]
In
this case, the visa officer refused the temporary resident visa because of the
female applicant’s family ties in the country of origin and the financial
evidence that could guarantee her return to Iran.
[21]
More
specifically, the visa officer noted the following in the Computer Assisted
Immigration Processing System (CAIPS):
Married couple, he 65 & she 61 To visit son/dtr
in Canada Dtr PR since 2007 - no neg in FOSS Son has history of irr
migration from 2008 - case still pending. Host (dtr) does not meet lico as
per documents provided No proof of savings for PA I have reviewed all
documents on file. PA does not appear well established and does not appear
to meet requirements for a temporary resident visa because: - PA does not
demonstrate family ties that would compel return after any authorized stay
in Canada - PA does not appear to be sufficiently financially established
based on financial statements submitted – purpose of travel is not compelling-
PA has limited travel history – Host in Canada does not appear well established
based on the documents submitted. Not satisfied genuine visitor. Application is
refused. [Emphasis added.]
[22]
However,
in that paragraph, the visa officer did not address the evidence submitted,
which included, among other things, the following documents:
a. notification
of payment of monthly pension in Iran for each of the applicants (Applicant’s
Record (AR) at pages 40-41);
b. bank
statement in the name of the female applicant attesting to the funds available
for her trip (AR at page 39);
c. list
of the applicants’ assets (AR at page 44; apartment, three pieces of land, and
one doctor’s office);
d. a
document entitled “License to Establish a Doctor’s Private Office”, in the name
of the male applicant (AR at page 45);
e. statement
that one of the applicants practised as a urologist in their own private practice
(AR at page 46);
f. statement
that the male applicant practised as a urologist in a hospital (AR at page 47);
g. education
certificates for the two daughters who are the applicants’ dependent children
attesting to their university attendance in Iran (AR at pages 48-49; in a
society and a country where two young girls, unmarried, would have difficulty
living alone);
h. letter
by the female applicant explaining the reasons for the trip and the ongoing
family ties in Iran (AR at page 55);
i.
invitation
letter from the applicants’ daughter and son-in-law attesting to their care (AR
at page 38).
[23]
Certainly,
the respondent’s position that the applicants could have improved their
application by adding other financial evidence to convince the visa officer is
understandable and supported by the case law of this Court.
[24]
Nevertheless,
in the case at bar, sufficient and probative evidence contradicts the visa
officer’s reasoning, namely, with respect to the applicants’ economic situation.
[25]
It
has been recognized that the common phrase that the officer [translation] “considered all of the
evidence” cannot systematically immunize the decision from judicial review,
namely in a case where relevant evidence is submitted and not discussed by the
decision-maker (Cepeda‑Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35).
[26]
In
this case, this Court is of the opinion that the officer’s findings were made
without regard for the evidence.
[27]
In
addition, the visa officer does not seem to have taken into account the
importance of the familial nature of the trip like manual OP-11 encouraged him
to do.
[28]
Consequently,
the visa officer’s decision must be set aside, the application for judicial
review is allowed and the matter is referred back to another visa officer for
redetermination.
JUDGMENT
THE
COURT ORDERS that the applicants’ application for
judicial review be allowed and the matter be referred back to another visa
officer for redetermination. No question of general importance is certified.
“Michel M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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