Date: 20060215
Docket: A-64-05
Citation: 2006 FCA 68
CORAM: RICHARD
C.J.
NOËL
J.A.
NADON
J.A.
BETWEEN:
BETHOUO FELICIANO EYMARD BONI
Appellant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is
an appeal from a decision of Mr. Justice Teitelbaum of the Federal Court dated
January 17, 2005 [2005 FC 31] under subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”), who upheld the
decision of a visa officer dated October 23, 2003, refusing an application for
a Canadian study permit for Bethouo Feliciano Eymard Boni (the “appellant”). In
doing so, the judge applied the standard of patent unreasonableness.
[2] After having rendered his decision,
the Trial Division judge certified the following question:
[translation]
What is the appropriate standard to apply for the judicial review of a decision
of a visa officer in the matter of a study permit application: patent
unreasonableness or reasonableness simpliciter?
[3] At first, the visa officer had
refused the application for a study permit because, according to her, it was
probable that the appellant would remain in Canada beyond the authorized period
if the permit were issued, contrary to the requirement in paragraph 179(b)
of the Immigration and Refugee Protection Regulations, SOR/2002-227.
Among other things, the evidence showed that the appellant had already failed
to comply with the conditions of a previous permit by remaining in Canada
beyond the authorized period.
[4] The trial judge’s reasons do not
show any pragmatic and functional analysis to identify the standard of review
applicable to the decision of the visa officer. Instead, he relied on case law
of the Federal Court that addressed similar issues:
[14] I feel that the proper standard to be
applied in judicial review of a visa officer's decision, regarding a study
permit application, is that of the patently unreasonable decision (see Song
v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 385
(T.D.) (QL), and Li v. Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 394 (T.D.) (QL)). In saying this I am well aware that some of
my colleagues, in cases similar to the one at bar, have preferred to adopt the
standard of the reasonable decision simpliciter (see Lin v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 106 (QL), Bozorg
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 496
(QL), and Liu v. Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 1125 (QL)). I humbly disagree. The officer's conclusions will
not be disturbed unless they are so unreasonable as to require the Court's
intervention.
[5] It was to settle what he considered
a conflict in case law that the trial judge deemed it appropriate to certify
the question. According to him, this conflict, and the hope that it may be
settled, gave rise to a “serious question of general importance”, as required
under paragraph 74(d) of the IRPA.
[6] In my humble opinion, the trial
judge erred when he took for granted that the standard of review applicable to
visa officers’ decision lent itself to a generic approach and that the question
he certified was likely to yield an answer of general application concerning
the standard of review applicable to visa officers’ decisions.
[7] As Mr. Justice de Montigny recently
explained in a similar case (Sadiki Ouafae v. Minister of Citizenship and
Immigration, 2005 FC 459):
[18] Opinion on the appropriate
standard of review for decisions by visa officers is divided and appears to
have spawned seemingly contradictory decisions. In some cases, reasonableness simpliciter
was the chosen standard (see, inter alia, Yaghoubian v. Canada
(M.C.I.), [2003] FCT 615; Zheng v. Canada (M.C.I), IMM-3809-98; Lu
v. Canada (M.C.I.), IMM-414-99). In other decisions, patent unreasonableness
was chosen instead (see, for example, Khouta v. Canada (M.C.I .),
[2003] FC 893; Kalia v. Canada (M.C.I.), [2002] FCT 731).
[19] And yet, on closer inspection,
these decisions are not irreconcilable. The reason for the different choices is
essentially that the nature of the decision under review by this Court depends
on the context. Thus it goes without saying that the appropriate standard of
review for a discretionary decision by a visa officer assessing a prospective
immigrant's occupational experience is patent unreasonableness. Where the visa
officer's decision is based on an assessment of the facts, this Court will not
intervene unless it can be shown that the decision is based on an erroneous
finding of fact made in a perverse or capricious manner.
[20] However, it is not the same for a
decision by a visa officer involving an application of general principles under
an Act or Regulations to specific circumstances. Where the decision is based on
a question of mixed law and fact, the Court will show less deference and seek
to ensure that the decision is quite simply reasonable . . . .
[8] According to this approach, which seems to me to
be right, I do not believe that the decisions mentioned by the trial judge in
paragraph 14 of his reasons (paragraph 4 above) actually disclose a true
conflict. At least, the trial judge did not show there was one.
[9] The method suggested by the Supreme
Court to identify the standard of review must not be interpreted as being a
“ritual . . . applied mechanically” (Dr. Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 26). Each of
the factors that underlies a pragmatic and functional analysis must be taken
into consideration, and their respective impact must be weighted according to
the context and the specific facts of each case. If we remain faithful to this
approach, it is impossible to devise a method that will fill every bill.
[10] Accordingly, by answering
the certified question, our Court could only rule on the standard applicable to
the decision of the visa officer in this case. It is trite law that a question
that does not transcend the decision in which it arose should not be certified,
and in such a case the Court of Appeal should not answer it (see Wong v.
Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1049; Canada
(Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J.
No. 1637, (1994) 176 N.R. 4 at paragraph 4).
[11] I feel it would be useful
to add that it would not be appropriate for the Court to answer the certified
question because the answer would not do anything for the outcome of the case (Liyanagamage,
supra). In his application for judicial review, the appellant only
questioned the interpretation of the evidence. In his view, the visa officer
should have concluded on the basis of the evidence she had that he would leave
Canada at the expiry of his permit, rather than the contrary (see paragraphs 18
to 23 of the trial judge’s decision).
[12] It seems evident that the
evidence, and especially the appellant’s previous record, led the visa officer
to conclude that the appellant would not abide by the time limits of his right
of residence, regardless of the standard of review applied. A decision which is
based on the evidence is impervious to the reasonableness simpliciter
standard because in dealing with such a decision a reviewing court cannot
engage de novo in its own analysis or substitute its own reasons (Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 47). In
short, the visa officer had the last word, no matter what standard applied.
[13] For these reasons, I would
dismiss the appeal without answering the certified question.
“Marc Noël”
“I concur.
J.
Richard, J.A.”
“I concur.
Marc
Nadon, J.A.”
Certified true translation
Michael Palles
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