Dockets: IMM-1723-16
IMM-1724-16
Citation:
2016 FC 1327
Ottawa, Ontario, November 30, 2016
PRESENT: The
Honourable Mr. Justice Shore
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Docket: IMM-1723-16
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BETWEEN:
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KHERAD, FATEMEH
JAVDAN
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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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Docket: IMM-1724-16
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AND BETWEEN:
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SHAKERI, HASSAN
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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.
Nature of the Matter
[1]
This is an application for judicial review by
the Applicants pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], of a decision rendered by an officer
of the Visa Section [Officer] of the Embassy of Canada in Abu Dhabi, United
Arab Emirates [UAE] dated March 21, 2016, wherein the Officer, pursuant to
paragraph 179(b) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [IRPR], refused the Applicants’ application for temporary visa on
the basis that he was not satisfied they would leave Canada at the end of an
authorized stay.
II.
Facts
[2]
The Applicants, a husband (IMM‑1724‑16,
aged 54) and his wife (IMM‑1723‑16, aged 50), are citizens of Iran
and currently reside in Dubai, UAE. They are parents of four children, aged 19,
15, 12 and 9, who are Iranian citizens and enrolled in school in Dubai.
[3]
On August 14, 2009, the male Applicant’s
first application for permanent residence in the investor class was denied
because he had failed to provide required documents.
[4]
On May 7, 2014, the male Applicant’s second
application for permanent residence in the Immigrant Investor Program was
terminated when the program closed following the federal Economic Action
Plan of 2014.
[5]
On March 16, 2015, the male Applicant
applied to the Quebec Investor Program.
[6]
On February 15, 2016, the male Applicant
was summoned to an interview scheduled to take place in Montréal on
April 13, 2016.
[7]
On or about March 6, 2016, the Applicants
submitted an application to the Embassy of Canada in Abu Dhabi for a temporary
resident visa, in order to attend an interview in Montréal.
III.
Decision
[8]
On March 21, 2016, the Officer denied the
Applicants’ temporary resident visa application on the grounds that he was not
satisfied that they would leave Canada at the end of the allowed stay,
considering their travel history and the purpose of their visit. Regarding the
male Applicant, the Global Case Management System [GCMS] further states the
Officer’s following reasons:
Refused. PA was refused previously in 2010
in the NV category. He is not a resident of the UAE but is here on a tourist
visa to apply to TR to visit Quebec. No ties to UAE. Not satisfied he is a BF
visitor.
IV.
Issues
[9]
This matter raises the following issues; all of
which will be considered below:
1.
Is the application for judicial review moot?
2.
Did the Officer’s decision breach the
Canada-Quebec Accord?
3.
Did the Officer err in failing to consider all
the evidence provided by the Applicants?
[10]
The applicable standard of review for a visa
officer’s decision in this case is reasonableness. Given the expertise of the
visa officers and the discretionary nature of the decisions, the Court should
show deference in reviewing such decisions.
V.
Relevant Provisions
[11]
Sections 11(1) and 22 of the IRPA, and section
179 of the IRPR find application in the case before the Court:
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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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Temporary resident
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Résident temporaire
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22 (1) A foreign national becomes a
temporary resident if an officer is satisfied that the foreign national has
applied for that status, has met the obligations set out in paragraph
20(1)(b), is not inadmissible and is not the subject of a declaration made
under subsection 22.1(1).
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22 (1)
Devient résident temporaire l’étranger dont l’agent constate qu’il a demandé
ce statut, s’est déchargé des obligations prévues à l’alinéa 20(1)b), n’est
pas interdit de territoire et ne fait pas l’objet d’une déclaration visée au
paragraphe 22.1(1).
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Dual intent
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Double intention
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(2) An intention by a foreign national
to become a permanent resident does not preclude them from becoming a
temporary resident if the officer is satisfied that they will leave Canada by
the end of the period authorized for their stay.
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(2)
L’intention qu’il a de s’établir au Canada n’empêche pas l’étranger de
devenir résident temporaire sur preuve qu’il aura quitté le Canada à la fin
de la période de séjour autorisée.
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Temporary Resident Visa
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Visa de résident temporaire
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Issuance
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Délivrance
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179 An officer shall issue a temporary
resident visa to a foreign national if, following an examination, it is
established that the foreign national
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179
L’agent délivre un visa de résident temporaire à l’étranger si, à l’issue
d’un contrôle, les éléments suivants sont établis :
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(a) has applied in accordance with these Regulations for a
temporary resident visa as a member of the visitor, worker or student class;
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a) l’étranger en a fait, conformément au présent règlement, la
demande au titre de la catégorie des visiteurs, des travailleurs ou des
étudiants;
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(b) will leave Canada by the end of the period authorized for
their stay under Division 2;
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b) il quittera le Canada à la fin de la période de séjour
autorisée qui lui est applicable au titre de la section 2;
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(c) holds a passport or other document that they may use to enter
the country that issued it or another country;
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c) il est titulaire d’un passeport ou autre document qui lui
permet d’entrer dans le pays qui l’a délivré ou dans un autre pays;
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(d) meets the requirements applicable to that class;
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d) il se conforme aux exigences applicables à cette catégorie;
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(e) is not inadmissible;
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e) il n’est pas interdit de territoire;
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(f) 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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f) 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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(g) is not the
subject of a declaration made under subsection 22.1(1) of the Act.
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g) il ne fait pas
l’objet d’une déclaration visée au paragraphe 22.1(1) de la Loi.
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VI.
Submissions of the Parties
A.
Submissions of the Applicants
[12]
The Applicants submit that the decision rendered
by the Officer does not meet the standard of reasonableness. They argue that
the Officer failed to take into consideration all the evidence provided before
refusing the visa and; thus, his decision lacked adequate reasons. He concluded
that they had no ties in the UAE, although the principal Applicant has been
working for the same company in Dubai for 20 years; and, had provided detailed
evidence from his employer. He also ignored the fact that their four children
would remain in Dubai. He failed to address the purpose of the visa
application, namely to attend an interview scheduled in Montréal in the context
of the Quebec Investor Program.
[13]
The Applicants further submit that the Officer’s
decision is in breach of the Canada-Quebec Accord. The Officer refused to issue
a temporary resident visa notwithstanding the Applicants’ fulfillment of
Quebec’s selection requirements, although there was no evidence of his
inadmissibility.
B.
Submissions of the Respondent
[14]
First, the Respondent submits the application is
moot, considering that the purpose for the temporary resident visa was to
attend an interview on April 13, 2016, and that, since there was no
evidence that the interview was postponed, at the time of submission of the
files to the Federal Court.
[15]
Second, the Respondent argues there was no
breach of the Canada-Quebec Accord. The federal government has the jurisdiction
to admit or reject immigrants after they have met the Quebec selection
criteria.
[16]
Third, the Respondent claims that the Officer’s
findings and decision were reasonable. The Officer’s inference that the
Applicants could decide to stay in Canada after their visa expire was justified
by the Applicants’ only travel outside UAE and Iran, their lack of ties to UAE,
and their past attempts at obtaining permanent residence in Canada.
VII.
Analysis
A.
Is the application for judicial review moot?
[17]
As per Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342, the Court must determine if the case raises a live issue, and
if not, if it should exercise its discretion to hear the case.
[18]
The Court is satisfied that there is still a
live controversy and that the application is therefore not moot. The
Applicants’ intention of seeking a temporary resident visa to set another
interview and to visit Canada has not been set aside. As pointed out by the
Applicants, the Officer’s decision could affect further visa requests
negatively.
B.
Did the Officer’s decision breach the
Canada-Quebec Accord?
[19]
The Canada-Quebec Accord reflects the provincial
jurisdiction to select the immigrants whom the federal government would admit
on its territory. The federal visa officer is not bound by the Quebec Investor
Program in order to authorize visitors to Canada upon summon to an interview (Biao
v Canada (Minister of Citizenship and Immigration), 2001 FCA 43; Qing v
Canada (Minister of Citizenship and Immigration), 2005 FC 1224).
[20]
Immigration is a shared jurisdiction between the
federal and provincial governments. It is within its jurisdiction for Quebec to
select immigrants on its territory; and, thus, to reach its immigration
objectives; however, the federal government has exclusive jurisdiction
regarding admissibility determination pursuant to Canadian legislation. It is
of great importance that each level of government fulfills its constitutional
role.
C.
Did the Officer err in failing to consider all
the evidence provided by the Applicants?
[21]
The Court finds the Officer erred by ignoring
evidence contradictory to his conclusion. As recorded to the GCMS, the
Officer’s findings do not fulfill the standard of reasonableness.
[22]
The Officer is not satisfied that the Applicants
would leave Canada at the end of a stay because they lack ties to the UAE, but
fails to address the fact that they would be leaving behind them four children of
school age and to specify the implication of the male Applicant which he has with
the company, where he has been employed for 20 years.
[23]
In light of the reasons provided by the Officer,
the Court cannot conclude that the decision rendered is reasonable.
VIII.
Conclusion
[24]
The application for judicial review is granted.
The decision is set aside, and the matter is returned to a different officer
for redetermination.
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