Date: 20080307
Docket: IMM-2900-07
Citation: 2008 FC 317
Ottawa, Ontario, March 7, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
SAMUEL
UMACHI OGBONNAYA
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 by visa officer Jean-Pierre
Lavoie at the Canadian Deputy High Commission in Lagos, Nigeria dated June
21, 2007, refusing the applicant’s application for a student visa.
FACTS
[2]
The
applicant is a 23-year-old citizen of Nigeria. Since graduating from
high school in June 2003, he has been involved extensively in the Apapa Parish
of the Presbyterian Church of Nigeria in Lagos. He is the Youth
President of the Lagos West Presbytery and serves on the Parish Congregational
Board.
[3]
On
March 23, 2007, the applicant was granted admission to York University in Toronto. His program
of study is a four year undergraduate degree in Economics at the Atkinson
Faculty of Liberal and Professional Studies. According to the applicant’s
acceptance letter, his studies were to begin on September 5, 2007.
[4]
On
June 2, 2007, the applicant applied for a student visa at the Canadian Deputy
High Commission in Lagos. In his application form, the applicant noted
that his studies were being sponsored by the Apapa Parish of the Presbyterian
Church of Nigeria. The applicant stated that the reason for the sponsorship was
based on his leadership and commitment to the Church, as well as his
contributions to the Church’s management through his position on the
Congregational Board.
[5]
On
June 21, 2007, the visa officer refused his application on two grounds: 1) the
visa officer was not satisfied that the applicant was a bona fide
student; and 2) the visa officer was not satisfied that the applicant would
leave Canada at the end
of his study period.
[6]
On
July 18, 2007, the applicant filed this application for leave and judicial
review of the visa officer’s decision. He has since had his university admission
deferred, and is now scheduled to begin school in September 2008.
ISSUE
[7]
The
sole issue to be considered in this application is whether the visa officer
erred in refusing to grant the applicant a student visa.
STANDARD OF REVIEW
[8]
In
Tran v. Canada (Minister of Citizenship and Immigration), 2006 FC
1377, 59 Imm. L.R. (3d) 217, Mr. Justice Shore considered the
appropriate standard of review to apply to a visa officer’s decision, stating
at paragraph 23:
¶ 23 In this case, the issues addressed by
the Visa Officer are questions of fact. The Visa Officer was not satisfied that
Mr. Le Minh Duc Tran was a bona fide temporary
resident that would leave Canada at the end of the period authorized for his
stay. Specifically, she was not convinced that Mr. Le Minh Duc Tran’s ties with
Vietnam were sufficiently
strong to ensure his return after studying in Canada. Therefore, the appropriate
standard of review is patent unreasonableness. In other words, the Court must
not intervene unless it can be established that the decision is based on an erroneous
finding of fact made in a perverse or capricious manner. …
[9]
The
arguments before Mr. Justice Shore in Tran are the same as those
before the Court in the case at bar; namely, whether the visa officer erred in
concluding that the applicant was not a bona fide student and would not
return to Nigeria following
the completion of his studies. Accordingly, I agree with Mr. Justice
Shore,
and conclude that the appropriate standard of review to be applied to the visa
officer’s decision in the case at bar is that of patent unreasonableness.
RELEVANT LEGISLATION
[10]
Under
the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), a foreign national seeking to obtain a student visa must convince the
visa officer that he or she is not inadmissible to Canada and meets the
eligibility requirements under the IRPA and the Immigration and Refugee
Protection Regulations, S.O.R./2002-227 (the Regulations). Among those
eligibility requirements, the foreign national must convince the visa officer
that they are not an immigrant and that they intend to leave Canada by the end
of the period authorized for their stay. The relevant provisions of the IRPA
are outlined below:
|
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 shall be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
[…]
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.
[…]
|
11. (1) L’étranger doit,
préalablement à son entrée au Canada, demander à l’agent les visa et autres
documents requis par règlement, lesquels sont délivrés sur preuve, à la suite
d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la
présente loi.
[…]
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.
[…]
|
[11]
Subsection
216(1) of the Regulations elaborates on the criteria to be considered by the
visa officer in assessing the application:
|
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.
|
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.
|
ANALYSIS
Preliminary Issue: Did the applicant improperly include
documents in this application that were not before the visa officer?
[12]
As a
preliminary issue, the respondent argues that the applicant’s affidavit
improperly contains documents that were not before the visa officer when the applicant’s
application was considered. These documents include a “family declaration” by
the applicant’s brother dated July 17, 2007 and a letter supporting the
applicant’s application from Rev. Nzie Eke of the Apapa Parish dated July 16,
2007. These documents are contained at pages 17-18 of the applicant’s
Application Record.
[13]
Upon
reviewing the documents in question, the Court agrees with the respondent that
neither of these documents were before the visa officer when the decision was
made. Accordingly, they should not form part of the evidence considered by this
Court. Both of the above-noted documents post-date the visa officer’s decision,
which was rendered on June 21, 2007. As a result, while both documents provide
evidence supporting the applicant’s claim that he is a bona fide student
with strong ties to Nigeria, neither will be considered by this Court as
part of this application for judicial review.
[14]
The
respondent also submits that it is “unclear what information contained in the
Applicant’s affidavit … was before the immigration officer” since none of the
documents contained within the affidavit were included in the visa officer’s
notes, which were dated December 11, 2007 and received by the Court on December
17, 2007. Despite not being included within the visa officer’s notes, the Court
concludes that all of the documents in question, except the “family
declaration” and letter from Rev. Nzie Eke, were properly before the visa
officer when the decision was made. The three documents the Court considers
most relevant to the visa officer’s decision – the letter from York University dated March
23, 2007; the “Confirmation of Sponsorship” from the Apapa Parish dated May 31,
2007; and the “Police Background Certificate” dated May 28, 2007 – all predate
the applicant’s application for a student visa, which was made on June 2, 2007.
Accordingly, it is illogical that the applicant would obtain all of these
documents in preparation and then not file them in support of his visa
application. Moreover, the applicant has provided sworn testimony in his
affidavit that these documents were before the visa officer. This testimony is
uncontradicted by the evidence. Accordingly, the respondent’s bald submission
that it is “unclear” whether these documents were before the visa officer is
not sufficient to alter the Court’s finding in this regard.
Issue: Did the visa officer
err in refusing to grant the applicant a student visa?
[15]
Based
on the evidence that was properly before the visa officer when he rendered his
decision, the Court finds that the visa officer was patently unreasonable in
refusing the applicant’s application for a student visa.
[16]
First,
in concluding that the applicant did not satisfy the visa officer that he would
return to Nigeria by the end of the authorized period, the visa officer’s notes
suggest that this is due to the fact that the applicant lacks ties to Nigeria, and would therefore
have no incentive to return upon the completion of his schooling. The Court
finds such a conclusion patently unreasonable in light of the fact that the
applicant’s visa application lists a large and extensive family in Nigeria consisting of his
mother, father, and six siblings, all of whom are older than the applicant. As
well, the applicant stated that he does not have any relatives in Canada, thereby suggesting a
strong incentive to return to Nigeria upon the completion of his studies. Moreover, the applicant
has demonstrated strong ties to the Presbyterian Church of Nigeria, which would
no doubt influence his decision to return to the country. These ties are
demonstrated in the applicant’s visa application where he states that since
graduating high school he has been “deeply involved with youth work” at the
Church, and are supported by the “Confirmation of Sponsorship” from the Apapa
Parish, which states that the applicant has been “very active in the Parish.”
[17]
In light
of these strong connections to Nigeria, it is also patently unreasonable that the visa officer
would conclude that the applicant was not a bona fide student. This is
especially the case in view of the fact that the applicant proffered a letter
of acceptance from York University demonstrating that he had been accepted into
the Economics program and was to begin studies in September 2007. The Court is surprised
that the visa officer would reach such a conclusion while at the same time
explicitly stating in his notes that the applicant had been accepted into a
four year degree program at York
University. While the visa officer’s decision is no doubt premised on the fact
that the applicant graduated high school in 2003, four years prior to filing
his visa application, the officer, in concluding that the applicant has not
taken any courses since then and has never worked, failed to consider the
applicant’s work and devotion to the Presbyterian Church of Nigeria during this
time.
[18]
Finally,
while only secondary to the above two errors, the Court does note that the visa
officer’s conclusion that the applicant has no previous travel experience is
directly contradicted by the “Confirmation of Sponsorship” from the Apapa
Parish, which states that the applicant was chosen to represent Nigeria at the
World Council of Churches Conference in Brazil in 2006.
[19]
For
all of the above reasons, the Court concludes that the visa officer was
patently unreasonable in refusing the applicant’s application for a student
visa. Accordingly, the Court will allow this application and set aside the
decision of visa officer Jean-Pierre Lavoie dated June 21, 2007.
[20]
Both
parties and the Court agree that this case does not raise a question that
should be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is allowed, the visa officer’s decision is set
aside, and the application is referred to another visa officer for
redetermination with the direction that the new visa officer consider any new
documents submitted by the applicant including the documents referred to in
paragraph 12 of these Reasons.
“Michael
A. Kelen”
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