Docket: IMM-5579-23
Citation: 2024 FC 1858
Toronto, Ontario, November 21, 2024
PRESENT: Madam Justice Go
BETWEEN: |
POUYA SALEMI |
Applicant |
and |
MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Mr. Pouya Salemi [Applicant], a citizen of Iran, applied for a Temporary Resident Visa [TRV] to visit his uncle in Canada.
[2] This was the second refusal of the Applicant’s TRV application. After the Applicant’s initial TRV application was refused [initial decision], the Applicant sought leave for judicial review. The Applicant then accepted the Respondent’s offer of settlement and the matter was sent back for redetermination by a different immigration officer. The Applicant had an opportunity to submit updated documentation, and he provided an updated bank statement.
[3] Upon redetermination, a visa officer [Officer] refused the application once again as the Officer was not satisfied the Applicant would leave Canada at the end of his authorized stay as directed by paragraph 179(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Decision]. The Officer found the Applicant has not sufficiently demonstrated strong ties to his country of residence. The Officer was also not satisfied that the Applicant has sufficient funds for the intended stay in Canada.
[4] The Applicant seeks judicial review of the Decision, arguing that the Decision was unreasonable and that the Officer breached procedural fairness. For the reasons set out below, I dismiss the application.
II. Issues and Standard of Review
[5] There are two main issues before me:
Did the Officer breach procedural fairness?
Was the Decision unreasonable?
[6] The standard of review of a decision’s merits is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 25. The Court should assess whether the decision bears the requisite hallmarks of justification, transparency and intelligibility: Vavilov at para 99. The Applicant bears the onus of demonstrating that the decision was unreasonable: Vavilov at para 100.
[7] The standard of review of procedural fairness is akin to correctness. The focus of this Court is on whether or not the procedure allowed the applicant to know the case to meet and have a full and fair opportunity to respond: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54-56.
[8] In addition, the Respondent raises preliminary objections to the affidavit the Applicant filed with the Court in support of his judicial review application. The Respondent argues that the Applicant’s affidavit improperly contains arguments, bald statements, opinions, legal conclusions, and extrinsic evidence that should be struck from the record. Specifically, the Respondent argues the Applicant submitted extrinsic evidence in his affidavit regarding the nature of his family ties and obligations in Iran, as well as in a letter from his bank that was not before the Officer in order to explain a discrepancy in his financial documents.
[9] In general, the Court will only consider evidence that was before the decision-maker. A decision cannot be impugned based on an issue or evidence that was not before the decision-maker, unless that issue is jurisdictional: Singh v Canada (Citizenship and Immigration), 2009 FC 11 at para 29. However, limited exceptions exist to allow for introducing new evidence that relates to procedural fairness issues: Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 20. I will thus address the Respondent’s preliminary objections when I analyse the parties’ submissions on the issue of procedural fairness.
A. Did the Officer breach the duty of procedural fairness by denying the Applicant an opportunity to respond to the Officer’s concerns?
[10] As with all TRV applications, the Global Case Management System [GCMS] notes contained the Officer’s reasons. Among other things, the Officer observed in the GCMS notes that after re-opening the application, the Applicant was given 30 days to provide updated documentation. The Officer noted that the Applicant had provided only an updated bank statement, which the Officer found was “not sufficient to demonstrate [the Applicant]’s current situation for a positive outcome.”
In particular, the Officer observed that the updated bank statement does not include a history of transactions. As the Officer was unable to track the provenance of available funds, and as insufficient documentation was provided in support of the Applicant’s funds, the Officer was not satisfied that the Applicant has sufficient funds for his intended proposed stay in Canada.
[11] The Officer also reviewed the Applicant’s previous bank statement and transaction history, and noticed that the previous transaction history showed a balance of 910,606,408 Iranian rials on June 11, 2022, but that only two days later on June 13, 2022, the balance was 19,870,170,363 Iranian rials. The Officer determined that the “unexplained huge balance”
did not satisfy the Officer that the Applicant will have access to the funds provided in support of the application.
[12] Finally, the Officer observed that two different bank account opening dates are noted for the same savings account.
[13] The Applicant submits that instead of making a negative decision, the Officer should have provided the Applicant with an opportunity to clear their concerns regarding the transaction history and the opening dates of the bank account. The Applicant argues the Officer’s failure to provide this opportunity breached the Applicant’s procedural rights.
[14] Citing the publications of Immigration, Refugee and Citizenship Canada [IRCC] and Patel v Canada (Citizenship and Immigration), 2020 FC 77 [Patel] at paras 10 and 12, the Applicant submits that where an officer has doubts or issues about the credibility of an applicant’s evidence or submissions, the principles of procedural fairness require that such doubts or issues must be communicated to the individual before making a negative decision.
[15] The Applicant further notes that as the application was sent for redetermination, if there was a need for additional documents, this should have been clearly communicated. The Applicant adds that the officer who made the initial decision did not make any mention of the Applicant’s funds when the Applicant submitted his initial application. However, the Officer put significant emphasis on the lack of a transaction history and selectively sought reasons to refuse the application. Finally, the Applicant submits the Officer contradicted the IRCC’s own manuals by failing to provide the Applicant with an opportunity to respond in a redetermination case.
[16] With respect, I find the Applicant’s arguments lack merits. The degree of procedural fairness required in TRV applications is minimal. There is no obligation on the officer to advise an applicant of deficiencies in their application: Babic v Canada (Minister of Citizenship and Immigration), 2023 FC 379 at para 11, citing Chhetri v Canada (Minister of Citizenship and Immigration), 2011 FC 872 at para 10.
[17] Irrespective of whether the application was returned for redetermination, the onus was on the Applicant to satisfy the Officer that he would leave Canada at the end of the requested period of stay: subparagraph 20(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27. Further, the Applicant was given an opportunity to submit further documentation and he did so. As such, I find there is no basis for the Applicant’s argument that the Officer ought to have communicated any need for additional documents. I also note that the Applicant has not pointed to any case law to support the proposition that a new officer, upon redetermination, cannot cite new reasons that were not indicated in the initial refusal.
[18] In the context of this case, I agree with the Respondent that the Officer was not required to provide the Applicant with a running score of the deficiencies in his application, and that Patel does not assist the Applicant. The Court in Patel confirmed at para 10 that “visa officers are not required to inform applicants of concerns regarding the sufficiency of supporting materials or evidence. However, that changes when the officer impugns the authenticity of the documents or the applicant's credibility,”
citing Hassani v Canada (Citizenship and Immigration), 2006 FC 1283 at para 24. Here, the Officer did not make any negative credibility finding against the Applicant. Rather, the Officer took issue with the sufficiency of the evidence, including the lack of a transaction history and “[t]he presence of the unexplained huge balance.”
[19] In conclusion, I find the Officer did not breach procedural fairness.
[20] As I find no procedural fairness breach, I agree with the Respondent that the limited exceptions that allow for the filing of new evidence do not apply in this case: Access Copyright at para 20. For this reason, I will not consider Exhibit D-12 of the Applicant’s Record, which contains a letter from the Applicant’s bank explaining the discrepancy in his financial documents regarding the date on which the bank account was opened.
[21] I will also not consider paragraphs 7, 11, and 16 of the Applicant’s Affidavit containing extrinsic evidence about the nature of the Applicant’s family ties and obligations in Iran. I further note that the extrinsic evidence with regard to family ties is not related to the Applicant’s procedural fairness arguments in any way, and as such, was improperly submitted.
[22] At the hearing, the Applicant made a new argument that the Officer failed to consider the cultural context of Iran and the situation of the Applicant’s relationship with his parents and that the new evidence was submitted to explain this cultural context. The Applicant also submitted that had this file been assessed in Turkey, an officer there would be more familiar with the cultural background of the Applicant.
[23] I reject the Applicant’s new argument for three reasons. First, the argument has no evidentiary base. Second, it was improperly raised for the first time in Court. Third, the argument speaks to the merits of the Decision, rather than to any procedural fairness issue and thus cannot justify the admission of new evidence.
B. Was the Decision unreasonable?
[24] The Applicant raises two arguments to challenge the reasonableness of the Decision.
[25] First, the Applicant submits the Officer failed to consider important pieces of evidence regarding the Applicant’s family ties. The Applicant points to the GCMS notes regarding the Applicant’s family ties which state: “[The Applicant] is a 23-year-old, married, Iranian national and applying to visit uncle. The [A]pplicant has not sufficiently demonstrated strong ties to their country of residence. Married but with no children meaning their ties to the country of origin are weak.”
The Applicant submits that the Officer failed to show they engaged with the evidence relating to the Applicant’s family ties. In particular, the Applicant points out that his parents and younger brother reside in Iran and that his wife would not be accompanying him to Canada. In light of these facts regarding the Applicant’s family ties, the Applicant asserts that it is difficult to understand how the Officer determined that the Applicant lacks strong ties to his country of residence despite the existence of evidence to the contrary.
[26] The Applicant quotes Mundangepfupfu v Canada (Citizenship and Immigration), 2022 FC 1220 at para 14 to argue that the Officer “either ignored or mischaracterized the evidence before them and/or failed to justify their findings with transparent and intelligible reasons.”
The Applicant submits that the Officer went out of their way to mischaracterize the evidence provided by the Applicant and stretched their authority to the point of imposing unnecessary requirements on the Applicant. The Officer reasoned that the Applicant is married but childless, and thus his ties to his home country are not strong. The Applicant argues that this reasoning is illogical and devoid of any internally coherent and rational chain of analysis.
[27] I reject the Applicant’s arguments.
[28] I note that much of the evidence upon which the Applicant relies to demonstrate family ties, namely the nature of his relationships with his family members in Iran and his wife’s employment, was never put before the Officer. The Respondent submits, and I agree, that the Applicant cannot overcome the Officer’s findings by providing new evidence that post-dates the Decision.
[29] The Applicant’s arguments otherwise amount to a request that this Court reweigh the evidence, which is not the role of this Court on judicial review.
[30] The Applicant also submits that the Officer made logical errors in arriving at their Decision based on the following arguments:
a.First, the Officer’s reasoning was vague and lacked clarity. The Officer failed to explain exactly why they doubted the provenance of the Applicant’s funds, and that the Officer made a statement about the presence of the unexplained huge balance does not satisfy the Applicant will have access to the funds, without explaining the logic or reasoning behind it. The Applicant points out that there are no specific rulings nor regulations that mandate the Applicant to provide a history of transactions to the Officer. Rather, the Officer is to assess whether the Applicant possesses adequate funds for his intended travel. As such, the Officer’s reasoning is arbitrary and imposes illogical and unnecessary requirements on the Applicant.
b.Second, there is no legal nor logical basis for the Officer to reject the application based on the Applicant being “[m]arried but with no children meaning their ties to their country of origin are weak.”
If childlessness is accepted as a negative factor, then this factor alone would exclude many childless married couples from entering Canada. Additionally, the Officer has neglected to consider the fact that the Applicant’s wife is not accompanying him, and has chosen instead to focus on the negatives.
c.Third, the Officer erred in weighing the relevant factors in their balancing analysis of the Applicant’s likelihood of returning to Iran and by concluding that the Applicant “has not sufficiently demonstrated strong ties to their country of residence.”
The Applicant possesses family, employment, academic, real estate, and financial ties to Iran, and that he holds no significant ties to Canada. The Applicant submits that the Officer disregarded all these positive factors and instead focused their whole attention on the one negative factor that the Applicant does not have a child. The Officer’s fixation on a single aspect of the application, while neglecting all the positive factors within the application, demonstrates a clear intent to refuse the application, regardless of the strength of the supporting evidence.
[31] I reject these arguments.
[32] Contrary to the Applicant’s submission, it was not unreasonable for the Officer to consider the history of bank transactions, or the lack thereof, in assessing the Applicant’s establishment.
[33] This Court has confirmed that, in assessing an application for a visitor visa, an officer “may conduct a more detailed and fulsome analysis about the source, origin, nature, and stability of funds when assessing an applicant's financial resources”
: Izokun v Canada (Citizenship and Immigration), 2024 FC 875 [Izokun] at para 23, citing Aghvamiamoli v Canada (Citizenship and Immigration), 2023 FC 1613 at para 29. This is so because whether an applicant has sufficient financial resources is a relevant consideration as to whether the applicant would leave Canada at the end of his stay; as such, it is reasonable for an officer to assess the origin, nature, and stability of the applicant’s funds: Izokun at paras 23, 25.
[34] In this case, the Applicant provided a bank certificate containing a high balance without any history of transactions. Moreover, the Applicant had previously provided bank statements showing a sudden and unexplained increase in his bank balance, which raised concerns about the provenance of these funds and his access to the same. It is in this context that the Officer remained unsatisfied that the Applicant had sufficient funds for his proposed stay in Canada. As such, I agree with the Respondent that the Officer’s concerns were reasonable in light of the record and the Court’s jurisprudence.
[35] While I agree with the Applicant that being childless, in and of itself, is not a sufficient ground for refusing a TRV, it is not unreasonable for an officer to consider whether an applicant has dependents – including children – in their home country. In this case, the Officer’s comment about the Applicant being married but with no children was part of the Officer’s overall assessment of the Applicant’s ties to his home country. The Officer also took into account the Applicant’s financial and employment situations before finding the Applicant was not sufficiently well established. The Applicant fails to demonstrate that the Officer’s assessment of these various relevant factors amounts to any reviewable error.
[36] Finally, as noted above, much of the Applicant’s evidence with regard to family ties was not placed before the Officer. In light of the record, I see no basis to interfere with the Officer’s findings.
[37] The application for judicial review is dismissed.
[38] There is no question for certification.
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