Federal Court Decisions

Date: 19971128

Docket: IMM-2660-96

BETWEEN:

YASMIN KASSAM

(VELJI)

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

SECRETARY OF STATE

Respondents

     REASONS FOR ORDER

JEROME A.C.J.

[1]      This application for judicial review of a decision by a visa officer came on for hearing before me at Toronto, Ontario, on August 19, 1997. At the close of oral argument, I took the matter under reserve and indicated that written reasons would follow.

[2]      The applicant, a citizen of Tanzania, had previously been admitted to Canada on a visitor's visa for a nine-week period in 1992. In May 1996, the applicant's niece invited the applicant to Canada to attend the niece's wedding and visit family. The applicant's niece signed a statutory declaration to that effect with the additional statement that she was "willing to assume full responsibility for my aunt ... financial or otherwise, during her visit." In addition, the applicant was employed in Tanzania and her employer had given her leave to visit Canada.

[3]      The applicant application for a visitor's visa was denied by a visa officer on June 20, 1996. The visa officer believed that the applicant was not a person who sought to come to Canada for a temporary purpose. The decision was communicated to the applicant on June 27, 1996.

[4]      On July 29, 1996, the applicant brought an application pursuant to section 18 and 18.1 of the Federal Court Act requesting the following:

(a) a declaration that the decision of the visa officer was made in complete breach of the rights to natural justice and fundamental justice under the Charter and that the complete absence of reasons further constitutes a breach of natural justice;

(b) a further declaration that in any event, the decision of the visa officer was made without evidence and in disregard to the evidence and in the total absence of reasons based on perverse or capricious factors contrary to the applicable law;

(c) that the decision made was capricious with palpable errors which no reasonable person under any circumstances could have made;

(d) an order of certiorari against the decision of the visa officer;

(e) an order of mandamus compelling the respondent to issue a visitor's visa to the applicant to allow her to proceed to Canada to visit her family.

[5]      At the hearing, the respondent argued that the issue was moot for two reasons. First, the applicant wanted to visit Canada to attend her niece's wedding and that event had passed. Second, the evidence as to the plane ticket, her employment in Tanzania and the niece's declaration to support her in Canada may no longer be true. The respondent submitted that a new determination cannot be made on these facts because they may no longer exist. The respondent contended that if the applicant wants to come to Canada, she can reapply and state her reasons as of the time of the new application.

[6]      The applicant provided three responses to that argument. First, the applicant submitted that it is apparent from the fact that her visa request was for a duration of four to six months that the applicant was not only in Canada for the wedding. Moreover, the applicant pointed to the statutory declaration which states that she planned to visit friends and relatives in addition to attending the wedding. Second, the applicant submitted that a finding that the issue was moot would allow the applicant to be perpetually denied a visitor's visa for patently unreasonable reasons without ever receiving judicial review. Finally, the applicant argued that there is authority to the effect that a case can still be heard even if the factual underpinning no longer exists. It is that final consideration to which I now turn.

[7]      In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 [hereinafter Borowski], the Supreme Court of Canada set down principles to help determine if an issue is moot, and if so, under what conditions a moot issue should be litigated. In the decision, Sopinka J. outlined a two-step approach to determining whether such a case should be litigated. In the first step, the court must "determine whether the required tangible and concrete dispute has disappeared and the issues have become academic" (at page 353). Sopinka J. characterized this question as the "live controversy" test. If the outcome will be academic, then the court moves to the second step yet may still choose to exercise its discretion to hear the case.

[8]      Applying the first step to the facts in this case, I do not find that there is a live controversy. The visa would have been issued for a six month period beginning in June 1996 until approximately December 1996. A visa issued for that period would now be useless. In addition, the facts underlying the visa application may no longer exist. Therefore, I must move to the second step of the Borowski test to determine whether the court should, nevertheless, hear this case.

[9]      Sopinka J. outlined three criteria that a court should consider when deciding whether to exercise its discretion to hear a moot case. However, it should be noted that this is not a mechanical process for "the presence of one or two of the factors may be overborne by the absence of the third, and vice versa" (at page 363).

[10]      The first criteria is the existence of an adversarial context because it "is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome" (at page 358). Sopinka J. noted that the adversarial relationship can prevail even in the absence of a live controversy. In particular, he suggested that the collateral consequences of a court's determination may provide the necessary adversarial context. In this case, I would find that the adversarial context is present based on the fact that this matter was argued with great tenacity by the parties at the hearing. In addition, given that the applicant still expresses a desire to visit Canada, the outcome of this decision would certainly have collateral consequences for the applicant.

[11]      The second criteria is a concern for judicial economy. Sopinka J. cited several situations where this concern would be addressed by hearing a moot case and I find that two such situations are relevant here (see pages 360-2). First, although the court's determination will not affect the controversy which gave rise to this application, it will have some practical effect on the rights of the parties because the applicant will be affected in future applications for a visitor's visa. Second, Sopinka J. suggested that a moot case may be heard if it is of a recurring nature but brief duration. The learned justice added that merely because the same point recurs frequently is not a reason to hear the case unless the dispute will have always disappeared before it is ultimately resolved. In the case of a refusal of a visitor's visa, the facts underlying the dispute will always have disappeared before it is heard on judicial review.

[12]      The final criteria concerns the need for the court to recognize its proper law-making function (see pages 362-3). The court must be wary of making judgments in the absence of a dispute affecting the rights of the parties as they may be seen as intruding into the legislative role rather than its usual adjudicative role. However, Sopinka J. noted that the court must be flexible in its determination on this issue. The learned justice added that an evaluation of this criterion requires more than a consideration of the subject matter's importance.

[13]      Given my finding on the first two criteria, I do not believe that my judgment would intrude into the legislative role to such an extent that I must refuse to exercise my discretion to hear the case. In all situations where the court has decided to hear a moot case, the court has encroached into the legislative role to some degree. I believe that Sopinka J.'s emphasis on the flexibility of the third factor indicates that one must balance this concern with the concern for, inter alia, hearing an important issue. In this case, I agree with the applicant's counsel that the issue in question can be important for many visa applicants. I also see no overwhelming reason not to exercise my discretion to hear this case. Assessing all three criteria, I find that this case should be heard on the merits.

[14]      There is only one issue to be determined on the merits of this case. That issue is whether the visa officer made a reviewable error in finding that the applicant was not a visitor on the grounds that she had a lack of proper funds and insufficient ties to Tanzania.

[15]      When determining whether to issue a visitor's visa, the visa officer must determine whether the person is a visitor as defined in subsection 2(1) of the Immigration Act (hereinafter "the Act"). That definition clearly states that a visitor is one who comes to Canada for a temporary purpose. The visa officer assesses the documentation provided by the applicant and then determines whether the person is a bona fide visitor. Given that subsection 9(1.2) provides that a person who applies for a visitor's visa shall satisfy the visa officer that the person is not an immigrant, the onus is clearly on the applicant to prove that he or she is a visitor. That the onus is on the applicant is also demonstrated by subsection 13(2) of the Immigration Regulations, 1978 (hereinafter "the Regulations"):

A visa officer may issue a visitor's visa to any person who meets the requirements of the Act and these Regulations if that person establishes to the satisfaction of the visa officer that he will be able

(a) to return to the country from which he seeks to come to Canada; or

(b) to go from Canada to another country.

[16]      In addition, subsection 13(2) of the Regulations indicates that the visa officer has the discretion to issue a visitor's visa. Subsection 9(4) of the Act also does not require a visa officer to issue a visa merely because the person meets the provisions of the Act and the Regulations.

[17]      From the visa officer's decision, it is clear that the officer did not believe that the applicant had sufficient funds to remain a visitor in Canada nor did the officer believe that the applicant had sufficient ties to Tanzania. If the record indicates that this is not a patently unreasonable finding, it is not for the court to interfere with that decision (see e.g. Lim v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 161 (F.C.T.D.)).

[18]      In the applicant's favour, she did provide airline tickets to show that she had the means to return to her home country. However, the applicant's documentation should also satisfy the visa officer that the applicant has sufficient funds to pay for all expenses which may be incurred while in Canada. If the person is visiting relatives, and the relatives are going to assume responsibility for any expenses, a relative must provide a letter or statutory declaration stating that the relative will be responsible for all expenses. The applicant's niece did provide a statutory declaration where she proposed to assume full responsibility for the applicant during her visit. The applicant's niece also indicated that she was employed and had sufficient assets to provide this guarantee.

[19]      However, the applicant's niece did not provide any documentation to support her claim that she was employed and had sufficient assets. I do not suggest that this is a necessary component of every visa application, but such evidence will help to satisfy the visa officer that the applicant is not of an inadmissable class pursuant to s. 19(1)(b) of the Act which concerns persons who are unable or unwilling to support themselves.

[20]      To further her application, the applicant should also provide documentation indicating that she has sufficient ties to her home country. Such documentation might include evidence showing her current employment, proof of her assets in Tanzania as well as other ties to Tanzania. Other than the application stating that she had three siblings in Tanzania, the only document of this nature produced in the record was a letter from the applicant's employer indicating that she had been employed at her current occupation for one year. I do not see evidence of a bank statement or other evidence which would be a further indication of her ties to Tanzania.

[21]      As I noted above, the applicant has the onus to prove that she is a visitor. The visa officer must consider all of the evidence including that pertaining to the applicant's financial resources and her ties to Tanzania and decide whether to exercise his or her discretion to issue a visa. Although there was proof of the applicant's familial and employment ties in Tanzania, there was little proof of the applicant's financial support in Canada. The visa officer is entitled to consider that evidence and decide whether it demonstrates that the applicant was a bona fide visitor. Upon my examination of the whole record, I do not find it patently unreasonable that the visa officer was not satisfied that the applicant was a bona fide visitor.

[22]      In addition, I disagree with counsel for the applicant's contention that the visa officer found that the applicant had a lack of proper funding because the applicant would be supported by her niece in Canada. The officer's decision can just as easily read that the applicant had not satisfied the onus of proving that she would be financially supported in Canada. However, I will add that a visa officer should not find that an applicant has insufficient funds when a Canadian citizen has made a statutory declaration and provided proof that the person could support an applicant while in Canada.

[23]      For the reasons outlined above, this application for judicial review is dismissed. I will not address the Charter issue since it was not argued at the hearing and there is authority to suggest that the Charter does not apply to non-citizens outside of Canada (Ruparel v. Canada (Minister of Employment & Immigration), [1990] 3 F.C. 615 (F.C.T.D.), but see Crease v. Canada (Minister of Multiculturalism & Citizenship), [1994] 3 F.C. 480 (F.C.T.D.)). As I agreed at the hearing, I will allow the parties the opportunity to request a question to be certified.

OTTAWA, ONTARIO

November 28, 1997                  "James A. Jerome"

                         A.C.J.