Date: 20130729
Docket: IMM-7176-12
Citation: 2013 FC 827
Ottawa, Ontario, July 29, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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NOUH HUSSEIN
ABDALLA HAMAD,
MUNIRA
SALEH MAHMOUD, AND ABDALLA, AHMAD, ASIA AND ABDERRAHMAN HAMAD
BY THEIR LITIGATION
GUARDIAN,
NOUH HUSSEIN
ABDALLA HAMAD
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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
[1]
The Principle Applicant (PA), Mr. Nouh Hussein Abdalla
Hamad, is a citizen and resident of Libya. The PA has a wealthy brother in Canada who is prepared to fund the PA and his family while the PA completes a two-year business
program at George Brown College of Applied Arts and Technology in Toronto. In 2011, the PA applied for a temporary resident visa. His wife and children
separately applied for temporary visas to enable them to accompany the PA. The
applications were initially refused in decisions dated June 14, 2011; these
decisions were overturned by Justice Zinn and remitted for re-consideration (see
Hamad et al v Canada (Minister of Citizenship and Immigration) 2012 FC
336, 8 Imm LR (4th) 169).
[2]
For purposes of the re-consideration, the PA was
interviewed by the First Secretary, Canadian Embassy, Egypt (the Officer). In a decision dated August 9, 2012, the Officer First Secretary,
Canadian Embassy, Egypt (the Officer) refused the application. The letter of
refusal reflected the following broad reasons for the refusal as follows:
(a)
The PA had not satisfied the Officer that he would leave Canada by the end of the period authorized for his stay; and
(b)
The PA’s proposed studies were “not reasonable in light of
one or more of your qualifications, previous studies, employment, level of
establishment, other educational opportunities available in Canada, language abilities, or your future prospects and plans”.
[3]
The reasons for the Officer’s decision include the entries
contained in the Global Case Management System (GCMS). The GCMS notes, which
were taken contemporaneously with the review of the file and interview of the
Applicant, highlight several areas of concern for the Officer:
•
The Applicant had not researched any other schools in Canada or elsewhere;
•
The Applicant had little knowledge of what courses he would
be taking;
•
Although the Applicant claimed that upgrading his schooling
would help him in the future in Libya, the Applicant was not able to explain
how;
•
The Applicant was unable to provide a logical explanation
for waiting nine years to continue his studies.
[4]
At the end of the day, the Officer concluded that it was
not reasonable for a man of the PA’s position to uproot himself and his family
to pursue a two-year business program at a Canadian college. Although the
Officer did not expressly state that she was not satisfied that the PA had
answered truthfully all questions put to him, it is clear from her decision
that she did not believe the PA’s assertions that he was going to Canada to
attend the business program at George Brown. In sum, it is evident that the
Officer concluded that the Applicants were not bona fide – that they
were using the study permit as a ruse to come to Canada permanently.
[5]
The Officer’s decision to refuse the student visa is
reviewable on a standard of reasonableness (see, for example, Gu v Canada (Minister of Citizenship and Immigration), 2010 FC 522 at para 14, [2010] FCJ No
624). When reviewing a decision on a reasonableness standard, the Court must
determine “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” and whether the
decision displays “justification, transparency and intelligibility” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
[6]
I have a number of problems with the decision which
cumulatively lead me to the conclusion that the decision lacks justification,
transparency and intelligibility.
[7]
A key problem with the Officer’s decision is that her notes
in the GCMS with respect to the interview differ in some important aspects from
the Applicant’s version of his interview. I appreciate that the notes were
taken contemporaneously with the interview and that the Applicant’s affidavit
was sworn some time later. However, in the absence of an affidavit from the
Officer explaining what transpired at the interview, I am unable to reconcile
the two versions. The differences are most relevant with respect to the
intentions of the Applicant upon his return to Libya. On this critical issue,
the affidavit reflects a more complete response that, if considered by the
Officer, may have led to a different conclusion.
[8]
A second concern with the decision involves the Officer’s
statement that:
PA claims that he has a lot of
free time in Libya, yet has not [bothered] to upgrade his English, nor his courses
in Libya in the last 5 years . . .
[9]
The problem with this remark is that it is not correct. As
he states in his affidavit, the PA had taken an English course in March 2012.
The Officer, it appears, never asked the Applicant whether he had undertaken
any educational upgrading. Nor is there any place on the application form to
include information about further educational courses. I appreciate that the
burden is on the Applicant to make his case and that the Officer is not obliged
to provide a “running score” to the Applicant. However, in this case, the
Officer’s important finding was based on speculation rather than on the
evidence before her.
[10]
Even if the Officer’s failure to ask about additional
courses was not an error, the question arises about whether the Officer
considered that Libya was in the midst of serious instability during much of
the time in question. One would think that, as a matter of common sense, the
Officer would have considered that taking educational courses during this time
would be problematic.
[11]
Although it is not clear from the reasons (which raises a
problem with the intelligibility of the reasons), the Officer seems to have
based her decision to a large extent on the fact that this proposed course of
study was not a normal undertaking for a man with a family. This may be true.
Nevertheless, what appears not have been appreciated by the Officer was the
unusual context of this application in which the PA’s older brother – a person
well established in Canada – was offering to bring his brother and family
to Canada to pursue educational opportunities. There is absolutely nothing in
the record that indicates that the brother is using this as a back‑door
way of giving the PA and his family permanent residence in Canada. The clearly stated intent was for the PA to study in Canada and return to Libya with newly acquired language and business skills. This misapprehension of the
totality of the evidence before her led to some unsupported findings. For
example, the Officer did not take into account that the educational studies
were arranged by the PA’s brother, thus providing an explanation as to why the
PA was unable to list in detail the specific courses he would be taking.
[12]
In sum, I conclude that the decision lacks the
justification, transparency and intelligibility required for a decision to be
reasonable.
[13]
I stress that a different reviewing officer may still come
to the same conclusion; it is not for the Court to decide whether the study
visa should be granted. However, the Applicants are entitled to an intelligible
decision that reflects the entirety of the case before the Officer.
[14]
Neither party proposes a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
The application for judicial review is allowed, the
decision of the Officer quashed and the matter remitted for re-determination by
a different officer, with an opportunity provided to the Applicants to make
further submissions if they choose; and
2.
No question of general importance is certified.
“Judith
A. Snider”
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