Docket: IMM-5402-15
Citation:
2016 FC 793
Ottawa, Ontario, July 12, 2016
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
|
FAHMIDA RAHMAN
|
Applicant
|
and
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision by a Senior Immigration Officer (“Officer”) of Citizenship and
Immigration Canada (“CIC”) dated November 24, 2015 denying the Applicant’s
request for a Temporary Resident Visa (“TRV”). This application is brought
pursuant to s 72 of the Immigration and Refugee Protection Act, SC 2001,
c 27 (“IRPA”).
Background
[2]
The Applicant is a national of Bangladesh. She
is married to Anwar Shahadat Shatil, a citizen of Bangladesh who holds a
Canadian TRV and study permit allowing him to pursue a Master of Science degree
in Biomedical Engineering at the University of Manitoba. He arrived in Canada
in September 2014 while the Applicant remained in Bangladesh. The Applicant
made her first application for a TRV in May 2015, which was refused as were two
subsequent applications. With the assistance of her lawyer, the Applicant made
her fourth application in November 2015, which was also denied. That decision
is the subject of this application for judicial review.
Decision Under Review
[3]
By letter dated November 24, 2015, the Applicant
was informed that her TRV application was refused on the basis that the Officer
was not satisfied that she would leave Canada at the end of her stay as a
temporary resident (“Refusal Letter”). In reaching this decision, the Officer
stated that he or she had considered several factors, including the Applicant’s
travel history, her family ties in Canada and in her country of residence, her
current employment situation, and, her personal assets and financial status.
[4]
Subsequently, the Applicant was provided with
further reasons for the refusal of her TRV application in the form of entries
of visa officers’ notes in the Global Case Management System (“GCMS”). These
included an entry by the Officer dated November 24, 2015 recording that the
Applicant had been a senior observer for the Bangladesh meteorological
department since January 2014, that she reports to the assistant meteorologist
and that she has a very modest annual salary of taka 136k (about $2300
Canadian, or less than $200 Canadian per month). The entry states that the
financial documents for the Applicant and her spouse had been seen, a travel
itinerary had been provided and a 108 page submission by the Applicant’s
representative had been carefully reviewed. The Officer noted there was no
indication that the Applicant’s spouse visited Bangladesh since coming to
Canada, the couple has no children, and the Applicant is young and started
working recently, less than 2 years ago. Further, it was noted that she has a
modest income and no travel history. The entry also stated that despite having
her direct family in Bangladesh, her strongest tie was to her husband in
Canada. Her representative had commented on the possibility of settling in
Canada, also mentioning that dual intent is allowed. The Officer concluded
that, based on the documents provided and despite the analysis of the
Applicant’s representative, he or she was not satisfied, on a balance of
probabilities, that the evidence submitted with the application demonstrated
the Applicant is well-established, professionally and financially, and
constituted sufficient ties to Bangladesh to ensure that she would comply with
the terms and conditions of her stay and depart Canada when required. On that
basis, the application was refused.
Issues and Standard of Review
[5]
There is only one matter at issue and that is
whether the Officer’s decision was reasonable.
[6]
The Applicant submits that the applicable
standard of review for a visa officer’s decision to issue or refuse a TRV is
reasonableness (Tavakoli Dinani v Canada (Citizenship and Immigration),
2012 FC 1063 at para 18 [Tavakoli]) as does the Respondent (Loveridge
v Canada (Citizenship and Immigration), 2011 FC 694 at para 10; Singh v
Canada (Citizenship and Immigration), 2012 FC 526; Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir]). I agree. This Court has
previously held that a visa officer’s decision to deny a TRV application based
on the belief that the applicant would not leave Canada at the end of their
stay is a question of mixed fact and law. Accordingly, the decision attracts
the reasonableness standard of review (Utenkova v Canada (Citizenship and
Immigration), 2012 FC 959 at para 5).
Was the Officer’s decision reasonable?
Applicant’s Submissions
[7]
The Applicant submits the Officer’s decision
should be set aside as it ignored relevant evidence. In support of this
position, the Applicant submits that a visa officer cannot “systematically immunize” a decision from judicial
review where relevant evidence is submitted by the applicant and not discussed
(Tavakoli at para 25). The Applicant points out that this Court, in Girn
v Canada (Citizenship and Immigration), 2015 FC 1222, recently said that a
visa officer’s decision to refuse a TRV application was unreasonable because
the officer ignored evidence contrary to his or her conclusion (at para 31).
The Applicant also notes that it is unreasonable for a visa officer to be
dismissive of an applicant’s evidence (Kokareva v Canada (Citizenship and
Immigration), 2015 FC 451 at para 12 [Kokareva]).
[8]
With respect to the facts in the present case,
the Applicant says the GCMS notes do not mention the support letters from the
Applicant’s parents and sister; the Applicant’s paid return airline ticket and
flight itinerary; evidence of a Bangladeshi bank account in the Applicant’s
name; a bank statement for the Applicant from that bank; a confirmation of
shares registered in the Applicant’s name in Bangladesh; and, relevant
information contained in an employment letter written by the Applicant’s
immediate supervisor at the Bangladesh Meteorological Department. All of which
are said to demonstrate her ties to Bangladesh and her intent to return.
[9]
The Applicant also submits that the Officer’s
decision is unreasonable as it contradicts relevant evidence without any
evidentiary basis for doing so and makes arbitrary inferences that are not
supported by the evidence or the relevant jurisprudence. In support of this
position, the Applicant submits that a visa officer must not rely on
speculation without adequate consideration given to countervailing factors. If
a visa officer does so, he or she must provide further reasons; if no further
reasons are provided, the court may characterize the officer’s decision as one
that does not meet the standard of reasonableness articulated in Dunsmuir
(Momi v Canada (Citizenship and Immigration), 2013 FC 162 at para 23).
In particular, the Applicant says the following with respect to the Officer’s
decision:
•
The Officer’s statement in the GCMS notes that
the “Applicant is young and started working recently
(less than 2 years ago)” is incorrect and vague;
•
The terms “modest”
and “very modest” in relation to the Applicant’s
income were contradicted by the letter from the Applicant’s employer and are
also vague. If the references to the Applicant’s income are references to the
Applicant’s greater earning potential in Canada, then the decision is
unreasonable (Dhanoa v Canada (Citizenship and Immigration), 2009 FC 729
at para 18 [Dhanoa]). Moreover, references to the Applicant’s earning
power are made “sterile” by the absence of a
cost of living analysis, the absence of references to the Applicant’s living
and working conditions in her home country and similar conditions in Canada (Dhanoa
at para 14);
•
If, however, the Officer is implying an issue of
credibility with the Applicant or her evidence, then there is no justification
or evidentiary basis for the Officer to do so, especially considering the
Applicant voluntarily indicated her previous TRV refusals in her current
application (Kokareva at para 12);
•
The issue of the Applicant’s spouse not having
visited Bangladesh since arriving in Canada is an irrelevant consideration (Khatoon
v Canada (Citizenship and Immigration), 2008 FC 276 at para 12).
Additionally, the Applicant’s supporting materials indicate why her spouse has
not been able to visit Bangladesh but the Officer’s GCMS notes ignore this
evidence;
•
Refusing the TRV application because the
Applicant does not have a child in Bangladesh is “hardly
sufficient to amount to a reasonable exercise of discretion when other factors
are taken into account” (Onyeka v Canada (Citizenship and
Immigration), 2009 FC 336 at para 48); and
•
The Officer incorrectly drew a negative inference
on the basis of the Applicant’s lack of travel history. As stated by this
Court in Dhanoa at para 12: “[l]ack of previous travel can only at most
be a neutral factor”.
Respondent’s Submissions
[10]
In response to the Applicant’s submission that
the Officer ignored evidence, the Respondent submits that the Officer is presumed
to have weighed and considered all the evidence unless the contrary is shown.
Further, the Officer was not required to make an explicit finding on each
constituent element leading to the final decision. The reviewing court must
simply be able to understand why the decision was made, looking to the entire
record to determine the adequacy of the reasons (Wang v Canada (Citizenship
and Immigration), 2010 FC 201 at para 19; Florea v Canada (Employment and
Immigration), [1993] FCJ No 598 (FCA) at para 1 [Florea]; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paras 15-16 [Newfoundland Nurses]). In any event, the
GCMS notes indicate that the Officer carefully considered all of the evidence.
[11]
The Respondent also submits that the Officer
clearly outlined the grounds for refusal in the Refusal Letter and the GCMS
notes. These demonstrate that the Officer was primarily concerned with the
Applicant’s limited financial and professional ties to Bangladesh, and the
stronger familial pull of her husband in Canada compared to her direct family
in Bangladesh. The Respondent says these concerns are unambiguous and are
based on the evidence submitted by the Applicant.
[12]
The Respondent submits that the Officer’s
conclusion was not a negative credibility finding nor did it involve arbitrary
inferences. There was an explicit statutory onus on the Applicant to satisfy
the Officer that she would depart Canada at the end of the period authorized
for temporary residence in Canada. Further, it is well-established that an
officer must weigh the extent of an applicant’s economic incentives and family
ties in Canada and their home country. The weight to be assigned to these
factors is a matter for the officer’s discretion and is not a basis for
judicial review (Wang v Canada (Minister of Citizenship and Immigration),
2006 FC 1298 at paras 9-10; Chhetri v Canada (Citizenship and Immigration),
2011 FC 872 [Chhetri]).
[13]
The Respondent states that a visa officer is not
obliged to conduct a cost of living analysis when considering an applicant’s
financial incentive to overstay in circumstances, like these, where the
officer’s decision includes an assessment of a number of different factors (Huang
v Canada (Citizenship and Immigration), 2012 FC 145 at paras 8-9 [Huang];
Sadiq v Canada (Citizenship and Immigration), 2015 FC 955 at
paras 19-23 [Sadiq]). It was also reasonable for the Officer to
consider income of less than $200 Canadian a month to be a very modest salary
compared to the draw of a Canadian salary (Calaunan v Canada
(Citizenship and Immigration), 2011 FC 1494 at paras 29-30).
[14]
The Respondent also submits it was not
irrelevant for the Officer to have considered the Applicant’s lack of travel
history when assessing her TRV application. This Court has held that an
applicant’s lack of travel history is a relevant consideration on a visa
application (Dhillon v Canada (Citizenship and Immigration), 2009
FC 614 at para 43 [Dhillon]; Obeng v Canada (Citizenship and
Immigration), 2008 FC 754 at paras 13, 20 [Obeng]). In the present
case, the Applicant had no prior travel history which could be relied on as a
positive factor to satisfy the Officer that the Applicant would leave Canada at
the end of her authorized stay.
[15]
The Respondent submits that the Applicant is
asking the Court to reweigh the evidence, which is not the proper function of
the Court on judicial review (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 61; Pei v Canada (Citizenship and Immigration), 2007
FC 391 at para 14).
Analysis
[16]
The IRPA requires that a foreign national,
before entering Canada, apply for a visa (s 11(1)), establish that they
hold such a visa and that they will leave Canada by the end of the period
authorized for their stay (s 20(1)(b)). With respect to TRV’s, s 7(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (“IRP Regulations”)
states that a foreign national may not enter Canada to remain on a temporary
basis without first obtaining a TRV. Section 179 of the IRP Regulations
sets out the requirements that must be met before a visa officer will issue a
TRV. Among these is the requirement that the visa officer be satisfied that
the foreign national will leave Canada at the end of the period authorized for
his or her stay. There is a legal presumption that a foreign national seeking
to enter Canada is an immigrant, and it is up to him or her to rebut this
presumption (Obeng at para 20). Therefore, in the present case, the
onus was on the Applicant to prove to the Officer that she is not an immigrant
and that she would leave Canada at the end of the requested period of stay (Chhetri
at para 9).
[17]
With respect to the Applicant’s allegation that
the Officer ignored relevant evidence, the Officer is assumed to have weighed
and considered all the evidence presented unless the contrary is shown, and
that is not the case here (Florea at para 1; Ahmed v Canada
(Citizenship and Immigration), 2013 FC 1083 at para 34). The GCMS notes
state that counsel for the Applicant submitted a 108 page submission, including
a 12 page analysis, which was carefully reviewed by the Officer. As can be
seen from the Certified Tribunal Record, attached to the 108 page submission
were the two family support letters, the Applicant’s return airline ticket and
flight itinerary, the letter from the Applicant’s employer, evidence of a
Bangladeshi bank account in the Applicant’s name, a bank statement for the
Applicant from that bank, and, a letter of allotment of shares registered in
the Applicant’s name in Bangladesh.
[18]
Further, most of the documents the Applicant
asserts were ignored by the Officer were referenced in the GCMS notes. The
November 24, 2015 entry by the Officer who refused the application refers to
the Applicant’s travel itinerary, her employment information, the financial
documentation of her and her husband and, as noted above, her counsel’s
submissions. A prior entry by another officer on November 19, 2015
specifically addresses the “proof on file”
including her employer’s letter and setting out the information contained in
that letter; her income of BDT 135,780, which is stated in her employer’s
letter; her savings of BDT 224,306.56 which comes from the certificate confirming
her bank account; and, an investment in shares in the amount of BDT 500,000,
which comes from the letter of allocation of shares, as well as other financial
information.
[19]
The Applicant takes issue with the fact that the
GCMS notes were made by two different officers and submits that there is no
indication in the GCMS notes that the Officer responsible for determining her
TRV application considered the notes of the other visa officer. I would note
first that the jurisprudence is clear that the GCMS notes form part of the
reasons for the decision (Rezaeiazar v Canada (Citizenship and Immigration),
2013 FC 761 at paras 58-59; Veryamani v Canada (Citizenship and Immigration),
2010 FC 1268). Furthermore, in the absence of evidence to the contrary, it is
reasonable to infer that the deciding Officer considered all the notes in the
GCMS system when deciding on the Applicant’s TRV application. In any event, as
noted above, the Officer who made the determination did, directly and
indirectly, refer to the Applicant’s supporting documentation.
[20]
In regard to the Applicant’s submission that the
Officer ignored relevant information contained in the employment letter, the
letter is explicitly referred to in the earlier GCMS entry which records that the
Applicant has been a senior observer with the Bangladesh Meteorological
Department since January 2014 and, as indicated by her employer, she is
currently on a temporary probationary period and will be eligible for full-time
employment on January 1, 2016, conditional upon her returning from Canada. As
noted above, the employment letter is also attached to the 108 page submission
of counsel considered by the Officer who issued the refusal.
[21]
While it is true the Officer did not specifically
refer to the two family support letters in his or her notes, the support
letters were also attached to the 108 page submission, which the Officer stated
was carefully reviewed. The Officer also noted that the Applicant had direct
family in Bangladesh but found that her strongest tie was to her husband in
Canada. This indicates that the Officer weighed the Applicant’s family ties to
Bangladesh and to Canada in reaching his or her decision. In any event, the
Officer was not required to explicitly mention each and every piece of evidence
considered (Newfoundland Nurses at para 16).
[22]
In short, I do not agree with the Applicant that
the Officer ignored evidence.
[23]
The Applicant also raised numerous arguments to
support her position that the Officer contradicted the evidence, without an
evidentiary basis for doing so, and that the Officer made arbitrary inferences.
[24]
In this regard, I do not share the Applicant’s
concern with respect to the alleged vagueness of the Officer’s statement that
the “Applicant is young and started working recently
(less than 2 years ago)”. The Officer need not define words such as
“young” and “recent”, their meaning is clear and self-evident in the context of
his or her decision.
[25]
The Officer’s reference to the Applicant’s
salary as very modest is more problematic. While her employer’s letter
described her income as “competitive”, it
appears that the Officer reached the conclusion that it is modest based on his
conversion of her salary to Canadian dollars, being less than $200.00 per
month. This raises the question of whether the Officer’s assessment of her
financial status was given undue weight and improperly conducted in absence of a
cost of living analysis. However, the Officer’s description of her income was only
one aspect of the evidence that was considered, but failed to establish, that
the Applicant is well-established professionally and financially. Similarly,
even if the “modest” nature of her salary was considered by the Officer in the
context of the Applicant’s greater earning potential in Canada, because it was
not the sole factor considered and was not given inordinate weight in refusing the application, it is not a
reviewable error (Huang at paras 8-9; Sadiq at para 23).
[26]
Finally, the Applicant suggests that, by
referring to her modest salary, the Officer may have been implying that he or
she had an issue with credibility. However, the Applicant has failed to fully develop
this submission and, in my view, it is of no merit.
[27]
The Applicant correctly states that the Officer observed
that the Applicant’s spouse had not visited Bangladesh since coming to Canada, without
reference to the spouse’s explanation contained in his submission made in
support of her application that, because of his work obligations, it was not
possible for him to visit Bangladesh during the 2015 holiday season. In my
view, the relevance of the Officer’s observation is questionable, however, it
was also peripheral to his or her main findings with respect to the Applicant’s
financial and familial ties to Bangladesh.
[28]
With respect to the GCMS notes indicating that
the Applicant has no children and no travel history, the issue of whether or
not the Applicant had any children was directly relevant to the Officer’s
assessment of the strength of the Applicant’s familial ties to Bangladesh.
[29]
The Applicant’s lack of a travel history is also
a relevant consideration on a visa application (Dhillon at para 43; Obeng
at para 13; Huang at para 11). However, as the Applicant submits, a
lack of previous travel is, at most, a neutral factor (Dhanoa at para
12). The Officer referred to her travel history both in the GCMS notes and in
the Refusal Letter. The latter stated that the Applicant had not satisfied the
Officer that she would leave Canada at the end of her stay as a temporary
resident and, in reaching that conclusion, the Officer considered four factors,
including her travel history. While I agree that the Officer erred in treating
the Applicant’s lack of travel history as a negative factor, given the
consideration also afforded to the Applicant’s familial, financial and
professional ties, that error alone is not sufficient to render the decision
unreasonable.
[30]
The Officer concluded, having considered the
totality of the evidence, that the Applicant had not met her onus of satisfying
the Officer that she would depart Canada at the end of her authorized stay. In
my view, that decision was within the range of possible, acceptable outcomes.