Docket: IMM-197-15
Citation:
2015 FC 995
Montréal, Quebec, August 21, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MOHAMMAD ALI
HAJI
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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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JUDGMENT AND REASONS
I.
Overview
[52] The
Applicant appears to take the position that procedural fairness arises whenever
an officer has concerns that the applicant could not reasonably have
anticipated. I think the jurisprudence of this Court demonstrates otherwise.
What applicants can reasonably anticipate is that officers will bring their own
experience and expertise to bear upon the application and will draw inferences
and conclusions from the evidence that is placed before them without
necessarily alerting applicants on these matters. The onus is upon applicants
to put together applications that are convincing and that anticipate possible
adverse inferences contained in the evidence and local conditions and address
them.
(As penned by Justice James Russell in Singh
v Canada (Minister of Citizenship and Immigration), 2012 FC 526).
II.
Introduction
[1]
The Applicant challenges a decision dated
October 27, 2014, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], wherein the Applicant’s
temporary resident visa to Canada was rejected by a visa officer.
III.
Background
[2]
The Applicant is a citizen of India, born in the
Democratic Republic of Congo, who speaks Gujarati, one of the languages, spoken
in India; the Applicant has also traveled with passages documented in Iraq and
Iran. The Applicant applied for a study permit to Canada on October 14,
2014, in order to attend LaSalle College in Montréal, where he was accepted as
a student.
[3]
By way of letter dated October 27, 2014,
the officer rejected the Applicant’s student permit application pursuant to
sections 219 and 220 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [IRPR].
[4]
In his reasons, the officer found that the
Applicant failed to provide sufficient evidence of his parents’ employment and
establishment, as well as the origin of the funds in the bank statement
provided by the Applicant. The officer’s notes in the Field Operations Support
System [FOSS] reveal the following additional reasons:
PA states to have previously been refused an
application. However, cannot be found in FOSS. PA states to have been an intern
[a]t BEA Congo from April 2014 to May 2014. No other information provided on
PA’s background or previous activities. Limited docs [to] support PA or
parents’ establishment in country of residence. Bank docs submitted are in
support of lump sum deposits. History of funds not provided. Insufficient docs
to support parents’ employment submitted. I am not satisfied that funds exist
[to] support proposed studies. I am not satisfied that PA is a [bona fide]
temporary resident.
(Officer’s FOSS notes, dated
October 27, 2014, Certified Tribunal Record, at pp 15-16)
IV.
Legislative Provisions
[5]
The following provisions of the IRPA and of the
IRPR are relevant to the officer’s determination:
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Application before entering Canada
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Visa et documents
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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.
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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.
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Study permits
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Permis d’études
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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
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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 :
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(a) applied for it in accordance with this Part;
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a)
l’étranger a demandé un permis d’études conformément à la présente partie;
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(b) will leave Canada by the end of the period authorized
for their stay under Division 2 of Part 9;
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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;
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(c) meets the requirements of this Part;
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c) il
remplit les exigences prévues à la présente partie;
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(d) meets the requirements of subsections 30(2) and (3), if
they must submit to a medical examination under paragraph 16(2)(b) of
the Act; and
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d) s’il
est tenu de se soumettre à une visite médicale en application du paragraphe
16(2) de la Loi, il satisfait aux exigences prévues aux paragraphes 30(2) et
(3);
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(e) has been accepted to undertake a program of study at a
designated learning institution.
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e) il a
été admis à un programme d’études par un établissement d’enseignement
désigné.
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Financial resources
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Ressources financières
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220. An officer shall not issue a study
permit to a foreign national, other than one described in paragraph 215(1)(d)
or (e), unless they have sufficient and available financial resources,
without working in Canada, to
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220. À
l’exception des personnes visées aux sous-alinéas 215(1)d) ou e),
l’agent ne délivre pas de permis d’études à l’étranger à moins que celui-ci
ne dispose, sans qu’il lui soit nécessaire d’exercer un emploi au Canada, de
ressources financières suffisantes pour :
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(a) pay the tuition fees for the course or program of studies
that they intend to pursue;
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a)
acquitter les frais de scolarité des cours qu’il a l’intention de suivre;
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(b) maintain themself and any family members who are
accompanying them during their proposed period of study; and
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b)
subvenir à ses propres besoins et à ceux des membres de sa famille qui
l’accompagnent durant ses études;
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(c) pay the costs of transporting themself and the family
members referred to in paragraph (b) to and from Canada.
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c)
acquitter les frais de transport pour lui-même et les membres de sa famille
visés à l’alinéa b) pour venir au Canada et en repartir.
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V.
Analysis
[6]
The Applicant argues that the officer’s decision
is unreasonable in that it is based on speculation, and that the officer’s
concerns were not communicated to the Applicant. Moreover, no additional
information was requested from the Applicant, nor was an interview held.
[7]
Furthermore, the Applicant argues that the
officer erred in his assessment of the evidence, in particular in respect of
the available funds and proof of the Applicant’s permanent residence in the
Congo.
[8]
The officer’s decision is reasonable. The
evidence before the officer did not demonstrate that the employment and
establishment of the Applicant’s parents were such to enable determination of
the bank funds in the bank statement, as proffered, to be clear evidence of
such. The requirements of rule 11 of the IRPR, also of paragraph 20(1)(b)
of the IRPA and that of rule 220 of the IRPR were not met, in respect of a visa
requirements by which to enter Canada, or that departure from Canada would take
place; or, that the Applicant had sufficient and available financial resources
without working in Canada.
[9]
The Applicant did not submit evidence in respect
of an internship in the Congo. He did not give evidence of any substance as to
his previous history in the Congo. Very scant information was provided as to his
establishment and that of his parents in the Congo. Nor was his parents’
employment status provided. In addition, no evidence specified the origin of
the funds in the bank account in respect of the lump sums which had been
deposited therein.
[10]
Actual financial resources could not be
determined in the case of the Applicant. As the information as to the Applicant’s
history and financial assets were scant, the Applicant did not meet his burden
of proof (Baylon v Canada (Minister of Citizenship and Immigration),
2009 FC 743 at paras 30-35).
[11]
No interview by the visa officer was required,
the onus was on the Applicant to provide adequate, sufficient and credible
evidence (Liu v Canada (Minister of Citizenship and Immigration), 2006
FC 1025). The duty to motivate a decision is minimal in respect of temporary
visa applications (Zhou v Canada (Minister of Citizenship and Immigration),
2013 FC 465).
VI.
Conclusion
[12]
The Court, therefore, dismisses the application
for judicial review.
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