Date: 20011107
Docket: IMM-3045-01
Neutral citation: 2001 FCT 1220
BETWEEN:
LYUDMYLA (LUDMILA) SKORUK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
NADON J.
[1] The Applicant seeks an Order setting aside a decision of Kevin Colbourne, a visa officer, dated June 7, 2001 pursuant to which she was denied a visa to visit Canada for the purpose of studying English.
[2] The Applicant is a citizen of the Ukraine. Her application for a visitor's visa was received by the Canadian consulate in Kyiv on June 7, 2001 and the visa officer interviewed her on that day. Following the interview, which lasted approximately five minutes, the visa officer was not satisfied that the Applicant was a genuine visitor to Canada. As a result, he refused to issue the visa sought by the Applicant. In denying the Applicant's application, the visa officer relied on subsection 9(1.2) of the Immigration Act which reads as follows:
|
Applications for visas 9. (1) ... Burden on visitors (1.2) A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant. |
Demande de visa 9. (1) ... Charge de la preuve (1.2) La personne qui demande un visa de visiteur doit convaincre l'agent des visas qu'elle n'est pas un immigrant. |
[3] In the present matter, the visa officer was not satisfied that the Applicant was not an immigrant. In his letter of refusal, dated June 7, 2001 the visa officer puts forth the following grounds for his refusal:
(1) The Applicant has not satisfied him that she is significantly well-established and / or has strong enough ties which ensure her return to the Ukraine.
(2) The Applicant has not provided a credible reason for wishing to visit Canada.
[4] I agree with counsel for the Respondent that the issues for determination can be broadly characterised as follows:
(1) Did the Applicant meet the onus upon her to establish that she was a genuine visitor to Canada?
(2) Did the visa officer breach his duty of fairness to the Applicant by failing to give her an opportunity to address his concerns or by improperly relying on his experience?
(3) Did the visa officer's conduct create a reasonable apprehension of bias?
[5] I begin with the burden of proof issue. In addition to subsection 9(1.2) of the Act, subsections 8(1) and 8(2) are also relevant to this issue. Subsection 8(1) of the Act makes it clear that an Applicant for a visa to Canada has the burden of proving his right to enter Canada. As to subsection 8(2) of the Act, it provides that an applicant is presumed to be an immigrant until such time as the visa officer is satisfied that he is not an immigrant. It, therefore, cannot be disputed that the burden of convincing the visa officer that she was not an immigrant rested with the Applicant. The issue herein is whether the visa officer made an error in coming to the conclusion that the Applicant had not met her burden.
[6] The standard of review of discretionary decisions by visa officers is the standard enunciated by McIntyre J. in Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2 where, at pages 7 and 8, he states:
______In construing statutes such as those under consideration in this appeal, which provide for far-reaching and frequently complicated administrative schemes, the judicial approach should be to endeavour within the scope of the legislation to give effect to its provisions so that the administrative agencies created may function effectively, as the legislation intended. In my view, in dealing with legislation of this nature, the courts should, wherever possible, avoid a narrow, technical construction, and endeavour to make effective the legislative intent as applied to the administrative scheme involved. It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere...
[7] As I have not been convinced by the Applicant that the visa officer either exercised his discretion in bad faith or not in accordance with the principles of natural justice, nor that he relied upon irrelevant considerations or extraneous to the statutory purpose, this application for judicial review will be dismissed. My reasons are as follows.
[8] In his affidavit, dated August 1, 2001, the visa officer explains why he refused to issue a visa to the Applicant. Firstly, the visa officer considered the fact that the Applicant was single and had no dependents. He also considered the fact that the Applicant, a full-time nurse, studied French by correspondence and that she did not study English. The visa officer also considered the fact that the Applicant did not know much about her sponsor, Ms. Jaworsky. More particularly, the Applicant stated that she had never met Ms. Jaworsky nor did she know why she had been chosen by her to come to Canada.
[9] In assessing the visa application, the visa officer also considered local general and economic conditions. For example, the visa officer considered the fact that a number of Ukranian short-term students, who had been issued visas, made refugee claims in Canada. He also considered the fact that many former Soviet Union states, including the Ukraine, had problems with illegal traffic in women and children.
[10] After consideration of all these factors, the visa officer was not satisfied that the Applicant was a genuine visitor to Canada. At paragraphs 13 to 16 of his affidavit, the visa officer states:
13. For all these reasons, in order to ensure that admission to a school is not being used simply as a pretext for the individual to get into Canada, I must be satisfied that the applicant is a genuine English language student who will not seek to remain permanently in Canada.
14. On the basis of the documents before me, and the information provided by the applicant, I was not satisfied that Ms. Skoruk was significantly well established or had strong enough ties to ensure her return to Ukraine. She is single, with no dependents. The nursing occupation in Ukraine, unlike Canada, is a semi-skilled profession, with limited prestige and poor remuneration. Ms. Skoruk is earning a salary which is well below the average income for Kyiv.
15. I was not satisfied that she had a genuine intention to study English as a Second Language. She had no English language ability and had not shown any previous interest in acquiring the English language, even though there are a number of reputable English language schools in Ukraine. She is in fact studying French, not English. She could not explain why she wished to learn English, or how she expected that a very short English course would contribute to her personal or professional objectives.
16. I did not find it credible that Ms. Skoruk would be sponsored at considerable financial expense by an individual she had never met, for a course that seemed irrelevant to her work or her current program of studies. I also did not find it credible that in this situation Ms. Skoruk would know very little about the arrangements made for her trip to Canada if she were a genuine visitor.
[11] The Applicant, not surprisingly, disagrees with the conclusion reached by the visa officer. However, the question is not whether the visa officer was right or wrong in his conclusion but rather whether, on the basis of the evidence before him, he arrived at a reasonable conclusion. In my view, he did.
[12] Before proceeding further, I would like to dispose of a submission made by Mr. Huculak, counsel for the Applicant, which was that the visa officer was duty-bound to inform the Applicant that she had the burden of satisfying him that she was not an immigrant. In my view, that submission is wrong. The Immigration Act is clear that the burden is on every person who seeks to enter Canada. No basis, legal or factual, was offered by Mr. Huculak to support his submission. I agree that perhaps in a perfect world, visa officers should explain to applicants all they need to know about Canadian immigration law and in particular regarding the legal ramifications of their applications. However, there is simply no basis in law, in my view, to support Mr. Huculak's submission.
[13] Was the Applicant a genuine visitor to Canada? The visa officer did not conclude that she was not such a visitor but rather that he was not satisfied that she was. On the evidence before him, it cannot, in my view, be seriously argued that that conclusion is unreasonable. The Applicant disagrees, as I have indicated, with the visa officer's conclusion and submits why the visa officer ought to have come to a different conclusion.
[14] Whether the officer ought to have come to a different conclusion is not the issue. The issue is whether on the facts before him, the visa officer's conclusion is unreasonable. I have not been persuaded that it is. The visa officer did not, in my view, rely on irrelevant or extraneous considerations in arriving at his conclusion. The fact that the visa officer considered the illegal traffic in women prevalent in the Eastern block countries and that short-term students made refugee claims in Canada, does not, in my view, constitute an error. These considerations of local conditions coupled with those considerations more personal to the Applicant, were part of the broader picture which the visa officer had to assess in reaching his conclusion.
[15] The visa officer considered the personal situation of the Applicant in the context of the prevailing conditions and circumstances of the Ukraine. In that context, the officer remained in doubt as to the genuineness of the Applicant's desire to come to this country as a visitor. Consequently, the Applicant's application was dismissed. I have not been persuaded that the visa officer made a reviewable error.
[16] I now turn to the Applicant's argument that the visa officer's conduct gives rise to a reasonable apprehension of bias. As the Applicant was unable to provide any evidence for that submission, I indicated to Mr. Huculak at the hearing that he could not possibly succeed on that basis.
[17] The last issue is whether the visa officer breached his duty of fairness. The Applicant submits that she was not given a chance to address the visa officer's concerns. On this issue, my colleague Muldoon J. in Li v. Canada (M.C.I.), [2001] F.C.J. No. 1144 (F.C.T.D.) makes, at paragraph 50 of his reasons, the following remarks:
In balancing the factors in Baker, the procedural requirements mandated by the duty of fairness should be relaxed for the processing of applications for student authorizations by visa officers overseas. Therefore, there are no grounds to argue unfairness in this process because a visa officer did not communicate all of her concerns to the applicant, or that she did not accord the applicant an opportunity to respond to those concerns.
[18] In my view, in the present instance, the visa officer did not breach his duty of fairness to the Applicant. The visa officer did not prevent the Applicant from submitting all of the facts which she considered relevant to her application. As I indicated to counsel during the hearing, I would have expected the Applicant, with the help of her sponsor Ms. Jaworsky and perhaps Mr. Huculak, to provide information to the visa officer with regard to the process by which she had been chosen to come to Canada. Had this evidence been submitted, it is my view that her chances of succeeding on her visa application would have greatly increased. By reason of this information not having been submitted to the visa officer, many questions remained unanswered. Why this information was not submitted I cannot say. I can say, however, that it ought to have been submitted if the Applicant strongly desired to come to Canada.
[19] In concluding his memorandum on behalf of the Applicant, Mr. Huculak wrote the following:
It is respectfully submitted, that if the Applicant in this case and on the facts and material presented was refused admission to Canada as a student, how can any foreign student from a developing country gain admission to Canada for the purposes of short term or long term studies if the criteria of the Tribunal in this case is applied to other students from other developing countries.
The Applicant, in my respectful opinion, never gave any reason for the Tribunal to doubt her intentions regarding visiting Canada for studying and returning to Ukraine after completing her studies. She answered questions posed to her truthfully, credibly, forthrightly and within the scope of her knowledge. The non-issuance of a student visa to her was a travesty and a cruel blow to her enthusiasm and opportunity in a lifetime to visit and study in Canada...
It is my further respectful submission that if the Tribunal had any doubts about the Sponsor or her motivation, these could have been addressed by the Tribunal by a background check or requiring more detailed information of the Sponsor. On the facts of this case, the Applicant was not obliged to know the details of her Sponsor. The Applicant had no concerns about her sponsorship and why she was chosen for the Sponsor's scholarship. Without any shred of evidence or factual suspicion, how can Kevin Colbourne, in his Affidavit at paragraph 12, even contemplate taking into account, in the decision process, that the Applicant "... can be vulnerable to people smugglers or organized criminals." or, at paragraph 11 of his Affidavit, the rather negative experiences the Embassy in Kiev has had with students issued visitors visas?
[Underlining added]
[20] I have two comments regarding the above. Firstly, the non-issuance of a visa to the Applicant certainly does not constitute a travesty. It may well constitute "a cruel blow to her enthusiasm and opportunity in a lifetime to visit and study in Canada". Even if that be the case, that does not prove that the visa officer was wrong. The only person who knows whether the Applicant would return to the Ukraine after three months in Canada is the Applicant herself. It was her burden to convince the visa officer of that fact and she did not succeed. Unless Mr. Huculak is in a position to prove that the Applicant would definitely have returned to the Ukraine, I do not see on what basis he can affirm categorically that denying his client a visa constitutes a travesty.
[21] Mr. Huculak said that if the visa officer had any doubts regarding Ms. Skoruk or her motivation, he could have performed a background check. As I indicated earlier, more information concerning Ms. Jaworsky's programme would, in my view, had been beneficial to the Applicant's application. However, the burden of gathering this information does not, as Mr. Huculak seems to suggest, rest upon the visa officer but rather on his client. In view of the considerable funds Ms. Jaworsky seems to have set aside for her project, it is surprising that no one gave sufficient attention to the fact that the Applicant had to convince the visa officer that she was a genuine visitor.
[22] I have reviewed this file on a number of occasions and I can certainly say that it is not obvious to me that the Applicant should have been given a visa. In other words, I am far from convinced, on the evidence in the record, that the Applicant was a genuine visitor. I certainly would have requested more information concerning Ms Jaworsky's project. Since it is not obvious to me that the Applicant was a genuine visitor to Canada, I am therefore not prepared to conclude that the visa officer reached an unreasonable conclusion.
[23] For these reasons, this application for judicial review will be dismissed.
(Sgd.) "Marc Nadon" Judge
Vancouver, British Columbia
November 7, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3045-01
STYLE OF CAUSE: Lyudmyla (Ludmila) Skoruk v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 1, 2001
REASONS FOR ORDER OF THE COURT BY: Nadon J.
DATED: November 7, 2001
APPEARANCES:
Mir Huculak FOR APPLICANT
Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Mir Huculak Law Office FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia