Docket: IMM-3147-16
Citation:
2017 FC 133
Ottawa, Ontario, February 3, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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RAFAEL ASLANYAN
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of an Immigration Officer in the Visa Section of the Embassy of
Canada in Moscow, Russia (“Officer”) dated July 13, 2016 in which the Officer
declined the Applicant’s request for an open work permit.
[2]
For the reasons that follow, this application for
judicial review is granted.
[3]
The Applicant is a citizen of Russia. On July
7, 2016, he applied for an open work permit as an accompanying spouse of a
study permit holder. The Officer’s decision denying his request was rendered
by a standard form letter indicating that the Officer was not satisfied that
the Applicant would leave Canada at the end of his authorized period of stay.
Two factors were checked off as having been considered in that regard: family
ties in Canada and in the country of residence, and, the length of proposed
stay in Canada.
[4]
In response to a request made pursuant to Rule 15
of the Federal Courts Citizenship, Immigration and Refugee Protection Rules,
SOR/93-22, the Global Case Management System (“GCMS”) notes were provided.
These form a part of the decision (De Hoedt Daniel v Canada (Citizenship and
Immigration), 2012 FC 1391 at para 51; Afridi v Canada (Citizenship and
Immigration), 2014 FC 193 at para 20). The relevant entry is as follows:
PA wishes open WP to join SP and spouses son
who are on SP in CAD. Spouse of PA has been in CAD since 2011, WP, VR, TRV, and
SP. SP living in basement of her sister. PA intends to live at same res. PA
employed as Deputy Director from 2009, PA’s employment letter states he is
granted 28 days paid leave from 1 Sep 2016. This leads me to believe PA’s
employer not aware PA wishes to reside in CAD for the next two years. PA has
strong ties to remain in Canada; PAs spouse has been in CAD since 2011. I am
not satisfied PA will leave CAD at end of authorized stay. Application refused.
[5]
In my view, the issue in this matter is whether
the Officer’s decision was reasonable. Accordingly, the standard of review of
the Officer’s decision, including the Officer’s factual findings, is
reasonableness (Ahmed v Canada (Citizenship and Immigration), 2013 FC
1083 at para 21; Maxim v Canada (Citizenship and Immigration), 2012 FC
1029 at para 19; Momi v Canada (Citizenship and Immigration), 2013 FC
162 at para 14).
[6]
The Applicant submits that the Officer made a
clear error of fact by attributing to the Applicant an intention to reside in
Canada full-time during the next two years as the Applicant clearly stated
throughout his submissions that he was only seeking permission to come to
Canada when allowed vacation time from his employer and that he planned to work
in Canada only during those visits. The Applicant also submits that the
Officer is clearly implying that the Applicant misled his employer and,
thereby, questions the Applicant’s motives. The Respondent submits that the
Applicant’s assertion that he never planned to reside in Canada full-time for
the next two years is refuted by his statement in his application that the
duration of his expected employment was from September 2, 2016 until July 20,
2018. Further, that the Officer reasonably found that the Applicant’s strong
ties to Canada made it unlikely that he would leave at the end of an authorized
period.
[7]
As seen from the above, the GCMS notes in this
case are quite limited. However, it is evident from these reasons that the
Officer’s understanding was that the Applicant sought to reside in Canada for
the next two years. In my view, to reach that conclusion the Officer either
failed to consider or misapprehend the materials in the record before him or
her.
[8]
In this regard, the letter of the Applicant’s
representative which accompanied his application may not have been particularly
clear on the point. It stated that the Applicant is “a
Deputy Director with “Science and Production Association “Region” LLC in Moscow
city”, where he permanently resides with his dependent mother, and that
he was making his application “not only to visit his
spouse during her studies in Canada but also to work during the short periods of
his allowed stay”. It went on to ask that the Applicant’s wife’s
two-year public college program be taken into consideration and requested that
the Applicant be allowed to work in Canada “whenever he
is able to visit with his family”.
[9]
However, the Applicant also provided a letter in
support of his application in which he asked that he be allowed to visit his
family “from time-to-time (whenever I am granted
official employment vacation leave from work) during the period of their
studies in Canada” and that he be permitted to work when in Canada to
contribute to the family income. He explained that following a recent work
permit application refusal, the family was advised to provide more
documentation in support of his application and, in that regard, he provided
two letters of support. The Applicant stated that he did not have any
immigration intentions and would return to Russia to his dependent mother. He
attached a caregiver statement confirming that for the period September 1, 2016
until September 28, 2016, the caregiver would visit the Applicant’s mother
three times a week for three hours a day and provide household assistance and
medical care as well as a note from a hospital indicating that his mother
suffers from health conditions that require medication and regular follow-up
with a physician.
[10]
The Applicant also provided an employment letter
stating that he has been employed full-time at Science and Production
Association since August 1, 2009, his current designation is Deputy Director
and that he had been granted an official paid vacation, with preservation of
his job, for 28 calendar days from September 1, 2016 until September 28, 2016.
[11]
A letter from the Applicant’s wife stated that
during the period of her studies, she would not be able to travel to Russia to
visit her family due to a large study load, and she and their son would
appreciate it if the Applicant was allowed to visit them from time to time and
work legally in Canada “whenever he is able to take
short vacation from work”. The letter stated that as a full-time
employee working as a Deputy Director, the Applicant could afford to pay the
expenses associated with short periods of vacation.
[12]
A letter of support from Arman Navasardyan
states that he has known the Applicant for six years and that the Applicant has
no intention of staying in Canada, rather, “just visiting his family from time
to time”. A support letter from Sarkis Anjrkouchian and Haroutioun Kalaydjian
states that several years ago the Applicant’s family made the decision to allow
their son to be educated in Canada and that the Applicant’s wife accompanied
the minor child to Canada for that purpose. Further, that the Applicant’s
family had dedicated their well-being for the sake of their only son’s
education and was willing to live apart and meet only occasionally: “For three years Yulia and Leonid have resided in Canada
while Rafael works to support his family back in Moscow. He is the only
breadwinner of the family and the only supporter of his dependent mother”.
[13]
Thus, the Applicant’s submissions and supporting
documentation were all to the effect that he is seeking a work permit to come
to Canada to visit his family and to be able to work in Canada during those
visits, but that his employment and residence is in Russia where he has a
dependent mother. None of this evidence is referenced in the Officer’s
reasons.
[14]
The Respondent submits that the Officer’s
determination is corroborated by the Applicant’s statement in his application
that the duration of his employment in Canada is from September 2, 2016
until July 20, 2018. It is correct that the portion of the form requesting the
duration of expected employment contains those dates. However, those dates
also reflect that the work permit is being sought for the period of time from
the submission of the application to the expiry of the Applicant’s wife’s study
permit on July 20, 2018, a copy of which was also before the Officer.
[15]
In my view, in the context of the application in
whole, including the supporting documents, these dates reflect the overall
period for which the Applicant sought a work permit. However, he had submitted
that the work permit would be utilized only on visits to Canada during periods
of vacation from his permanent employment and residence in Russia. The Officer’s
failure to address any of the Applicant’s evidence on this point raises serious
concerns as to whether the Officer rendered this decision without regard to the
evidence. The evidence also does not support the Officer’s stated belief that the
Applicant’s employer was not aware that the Applicant “wishes
to reside in CAD for the next two years”.
[16]
In this matter, the Officer’s decision is
unreasonable as the Officer overlooked or ignored evidence that was before him
or her and as a result, made an erroneous factual finding as to the Applicant’s
length of proposed stay in Canada which finding was material to the decision (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 72; Banful v
Canada (Citizenship and Immigration), 2010 FC 1321 at para 19). The
decision therefore was not justified, transparent and intelligible nor does it
fall within a range of possible, acceptable outcomes that are defensible in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47).
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