Date: 20090722
Docket: IMM-4723-08
Citation: 2009 FC 742
Ottawa, Ontario, July 22, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CHRISTOPHER
P. CALMA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
an Officer of Citizenship and Immigration Canada stationed at Makati City,
Philippines (Officer), dated August 11, 2008 (Decision), refusing the
Applicant’s application for a work permit.
BACKGROUND
[2]
The
Applicant is a 33-year-old married man who is a citizen of the Philippines. He has four
daughters, one in grade five, one in grade four, one in grade one and the
youngest who was born on March 18, 2007. His wife is currently unemployed.
[3]
The
Applicant has elderly parents and all of his family members live in the Philippines. He also has
a job in the Philippines to return to
after his contract in Canada is finished.
[4]
The
Applicant has a Bachelor of Commerce degree and has worked as a Credit Investor
with Filcorp Lending Corporation in Angeles City since 1998.
He draws a monthly salary equivalent to $275 CDN.
[5]
The
Applicant indicates that he would like to come to Canada because
“this is a temporary opportunity and this would allow the Applicant to build a
better financial future for himself and his family.”
[6]
The
Applicant was offered employment with Grand Hale, a fish processing plant in Richmond,
British Columbia as a fish processor where he would be responsible to cut,
clean and pack fish and other sea food products. The Applicant would make $12
per hour CDN. The Applicant also received a positive Labour Market Opinion from
Service Canada.
DECISION UNDER REVIEW
[7]
The
Officer held that the Applicant was required to establish that he met all of
the requirements under Part 11 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations):
(1) that he would not contravene the conditions of admission; (2) that he does not
belong in a category of persons inadmissible to Canada under the Act; (3) that his
intentions were bona fide; and (4) that he would leave Canada by the end
of the period authorized for the Applicant’s stay.
[8]
The
Officer concluded that the Applicant had not satisfied him that he would leave Canada by the end
of the period authorized for his stay because he “h[ad] not demonstrated ties
that would satisfy [the Officer] of [the Applicant’s] intention to return.”
[9]
The
Officer indicated that the Applicant did not meet the requirements of the Act
and the Regulations and his application was refused.
ISSUES
[10]
The
Applicant submits the following issue on this application:
a.
Should
the Officer’s Decision be quashed and the matter be referred back for a fresh
decision by another Officer on the basis that it is unreasonable in law?
STATUTORY PROVISIONS
[11]
The
following provisions of the Act are applicable in this proceeding:
|
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.
|
STANDARD OF REVIEW
[12]
The
Applicant submits that the standard of review of a decision of a visa officer
is the standard applicable to the Immigration of Refugee Board which, in the
Applicant’s view, is correctness: Dunsmuir v. New Brunswick 2008 SCC 9
(Dunsmuir) and Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982.
[13]
The
Respondent submits that the Officer’s assessment of the application for a work
permit involves an exercise of statutory discretion which should be given a
high degree of deference. Therefore, the appropriate standard of review is
reasonableness: Dunsmuir. The Respondent also submits that this Court
defer to an officer’s decision if his or her findings are justified,
transparent and intelligible, and fall within the range of possible outcomes
given the evidence as a whole. See: Dunsmuir and Choi v. Canada (Minister of
Citizenship and Immigration) 2008 FC 577. The Respondent says that the
standard of review is not correctness as the Applicant asserts.
[14]
The
standard of review for decisions of a visa officer has been reasonableness simpliciter:
Castro v. Canada (Minister of Citizenship and Immigration) 2005 FC 659 at paragraph
6 and Ram v. Canada (Minister
of Citizenship and Immigration), [2003]
F.C.J. No. 855. When a visa officer refuses a work permit solely on
statutory interpretation, the standard of review is correctness: Singh v.
Canada (Minister of Citizenship and Immigration) 2006 FC 684 at paragraph 8
and Hamid v. Canada (Minister of Citizenship and Immigration) 2005 FC
1632 at paragraph 4.
[15]
In Dunsmuir, the Supreme
Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[16]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[17]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the stated issue is reasonableness. When reviewing a decision on
the standard of reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir at paragraph 47. Put another way,
the Court should only intervene if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[18]
In
written argument, the Applicant also raises procedural fairness issues. The
standard of review for procedural fairness issues is correctness: Suresh v.
Canada (Minister of Citizenship and Immigration) 2002 SCC 1.
ARGUMENTS
The
Applicant
[19]
The
Applicant submits that the Officer’s Decision should be quashed and the matter
referred back for a fresh decision by another officer on the basis that it is
unreasonable in law. The Applicant says that he meets the requirements of
section 20 of the Act and that the Officer’s Decision was unreasonable since
relevant evidence was ignored and unwarranted assumptions drawn.
[20]
The
Applicant submits that the Officer made assumptions that he was not
economically established and would not return to the Philippines on the expiry of his
work permit. The Applicant states that this is “without foundation, irrational
and untenable because his wife and children lives in the Philippines, and his elderly
parents and all his siblings reside in the Philippines.”
[21]
As
well, the Applicant states that the Officer ignored that the Applicant:
a.
Has
an active working history and he will be resuming his job in the Philippines
once his contract in Canada has ended;
b.
Has
a wife and four daughters in the Philippines;
c.
Owns
and will also inherit property in the Philippines;
d.
Has
customs and traditions which are consistent with him returning to his homeland
upon the expiration of the work permit; and
e.
Deposed
in his affidavit that he is aware that this employment contract is not
extendable.
[22]
The
Applicant states that, even in applying the most stringent standard of review,
the Officer erred if he relied on a single fact to outweigh all the other
relevant facts provided by the Applicant. See: Guo v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 1353; Yuan v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 1356 and Malhi v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1120.
[23]
The
Applicant submits that the Officer’s “purported personal experiences or
knowledge cannot be the primary basis of his decision. The decision must be
based primarily on the merits of the case.” See: Wang v. Canada (Minister of
Citizenship and Immigration) 2003 FCT 365.
[24]
The
Applicant also says that he was not given an opportunity to respond to any of
the concerns the Officer may have had. The Officer made unsupportable
assumptions when refusing the Applicant’s work permit application. The Applicant
says he must be given an opportunity to provide an explanation for perceived or
apparent deficiencies and respond to the Officer’s concerns. See: Vandi v. Canada (Minister of
Citizenship and Immigration) 2002 FCT 515 and Chow v. Canada (Minister of Citizenship
and Immigration) 2001
FCT 996.
Respondent
[25]
The
Respondent submits that the Officer considered all of the evidence,
particularly since the Officer’s CAIPS notes indicate that the Applicant:
a.
Has
a two-year offer of employment in Canada;
b.
Is a
married male with three dependants;
c.
Has
been employed as a credit investigator from 1998-present;
d.
Has
a low monthly salary in the Philippines; and
e.
Has
a wife who is unemployed.
[26]
The
Respondent submits that the Officer reasonably considered the Applicant’s specific
circumstances. The Respondent concedes that the Officer erred in determining
that the Applicant has three children when he indicated four in his affidavit,
but there is no indication when the fourth child was born. It may have been
born after the application was considered. Even in the event that this was an
error, the Respondent submits it was not material.
[27]
The
Respondent submits that the onus was on the Applicant to satisfy the Officer
that he would depart Canada at the end of the
period authorized for any temporary work in Canada and that the Officer was
entitled to examine the totality of the circumstances relating to the
Applicant’s case. The Applicant’s financial and other ties to the Philippines, age, family
circumstances, and employment were all relevant factors for the Officer to
consider. When an applicant has an incentive to remain in Canada, this is part
of the “broader picture” that an officer ought to consider in assessing whether
an applicant will leave Canada at the end of the period authorized for any
temporary stay. The weight to be assigned to each factor is a matter for an
officer’s discretion and is not a basis for judicial review. See: Wang v. Canada (Minister of
Citizenship and Immigration) 2006 FC 1298 at paragraphs 9-10; Nguyen v.
Canada (Minister of Citizenship and Immigration) 2005 FC 1087; Skoruk v.
Canada (Minister of
Citizenship and Immigration) 2001 FCT 1220 and Ayatollahi v. Canada
(Minister of Citizenship and Immigration) 2003 FCT 248 at paragraph 23.
[28]
In
relation to the Applicant’s argument that he should have been granted an
interview, the Respondent submits that the duty of fairness prescribes minimum
standards of procedural decency and that the content of the duty varies
according to context. Several factors tend to reduce the content of the duty of
fairness owed to visa applicants, some of which are considered in Chiau v.
Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297
(F.C.A.) at paragraphs 35-36. The factors tending to limit the content of the
duty in the case at bar include: the absence of a legal right to a visa; the
imposition on the applicant of the burden of establishing eligibility for a
visa; and the less serious impact on the individual that the refusal of a visa
typically has. See also: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 21-28
and Ha v. Canada (Minister of Citizenship and Immigration) 2004 FCA 49
at paragraph 37.
[29]
The
Respondent says that, when dealing with the duty of fairness for determining
visa applications, the Court must guard against imposing a level of procedural
formality that, given the volume of applications that officers are required to
process, would unduly encumber efficient administration. The public interest in
containing administrative costs and in not hindering expeditious
decision-making must be weighted against the benefits of participation in the
process by the person directly affected. See: Khan v. Canada (Minister of
Citizenship and Immigration), [2002] 2 F.C. 413 (F.C.A.) and Fargoodarzi
v. Canada (Minister of Citizenship and Immigration) 2008 FC 90.
[30]
The
Respondent concludes that the Applicant’s application should be dismissed.
ANALYSIS
[31]
The
assessment of an application for a work permit involves an exercise of
statutory discretion and attracts a high degree of deference from the Court.
Apart from the procedural fairness issues raised, the applicable standard of
review in this case is reasonableness. See Dunsmuir and Choi.
[32]
The
Applicant complains that the Officer’s assessment was unreasonable because the
Officer ignored evidence and drew unwarranted inferences.
[33]
The
CAIPS notes reveal that the Officer based his Decision on findings that the
Applicant:
a) Seemed to have weak
economic ties in the Philippines; and
b) The Applicant was not
sufficiently well-established to ensure his return.
[34]
There
was really no evidence before the Officer to support either of these
conclusions. The Applicant was born in the Philippines, he has always lived there, he has a wife
and four children there, and he has been employed in the same job for 10 years
that he can go back to. It is difficult to see how anyone could be more
established than this, or why this means he has weak economic ties. The
Officer’s Decision just cannot be reconciled with the evidence presented by the
Applicant. That evidence was either entirely overlooked or the Decision is just
unreasonable.
[35]
The
Applicant also claims that he was not given an interview or an opportunity to
respond to the Officer’s concerns and that this raises a procedural fairness
issue. There is no need for me to consider this issue because I have already
concluded that the Decision is unreasonable and should be returned for
reconsideration.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. The application
is allowed and the matter is returned for reconsideration by a different
officer.
2. There is no
question for certification.
“James Russell”
Judge
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