Date: 20030320
Docket: IMM-1088-02
Ottawa, Ontario, the 20th day of March 2003
Present: the Honourable Mr. Justice Pinard
Between:
WAHAB Mahmoud, in his capacity as guardian
of the minor child RAMMAL Mohamad
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision dated February 14, 2002, by Cheryl Athoe, Visa Officer at the Canadian Consulate General in Buffalo, New York, refusing the application for authorization of the minor applicant, Mohamad Rammal, to study in Canada is dismissed.
"Yvon Pinard"
Judge
Certified true translation
Mary Jo Egan, LLB
Date: 20030320
Docket: IMM-1088-02
Neutral Citation: 2003 FCT 318
Between:
WAHAB Mahmoud in his capacity as guardian
of the minor child RAMMAL Mohamad
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of the decision dated February 14, 2002, by Cheryl Athoe, Visa Officer (Officer) at the Canadian Consulate General in Buffalo, New York, refusing the application for authorization of the minor applicant, Mohamad Rammal, to study in Canada, because she was not satisfied that his entry into Canada would not be contrary to subsection 9(4) of the Immigration Act, R.S.C., 1985, c. I-2.
[2] The applicant, the minor child named Mohamad Rammal, is a citizen of Lebanon. He entered Canada on September 8, 2001, to visit his family in Montréal. During his visit, with the assistance of his uncle and his maternal grandfather, he applied to the Canadian Consulate General in Buffalo, New York, for authorization to study in Montréal until August 5, 2002. Because the child is a minor, he did not go to Buffalo for his interview. His uncle and his maternal grandfather, acting as his guardians in Canada, met with the Officer at the interview held on February 14, 2002, at the Consulate.
[3] The applicant's parents and his brother and sister live in Lebanon, but most of his maternal family lives in Canada.
[4] The Officer refused the applicant's application for student authorization; she concluded that the purpose of his application as a visitor was not temporary residence, but permanent residence, as indicated in the following passage from her letter dated February 14, 2002:
I am not satisfied that you are a visitor as defined by the Immigration Act and the Immigration Regulations. I am not satisfied that you are seeking entry to Canada for temporary purposes. Your stay will be of a long term nature, you have strong ties to your family in Canada and there is no evidence that you intend to return to Lebanon permanently.
I am not satisfied that, under Subsection 9(4) of the Immigration Act, your entry into Canada would not be contrary to the Immigration Act and Immigration Regulations [sic]. Your application is refused.
[5] The respondent submits that the application for judicial review has become moot, because the study period that was the subject of the applicant's request ended on August 5, 2002. I agree.
[6] In any event, I am of the view that the application for judicial review is without merit for the following additional reasons.
[7] A useful summary of the principles developed in the relevant authorities was provided by Mr. Justice Rouleau in Zheng v. Minister of Citizenship and Immigration (January 30, 2001), IMM-2811-00, (2001), 13 Imm.L.R. (3d) 226 (F.C.T.D.):
[12] An applicant, who is not a Canadian citizen or a permanent resident and who wishes to attend a university or college in Canada, requires a valid and subsisting student authorization. Subsection 9(1) of the Act requires that every immigrant and visitor (except in prescribed cases) must apply for and obtain a visa before that person appears at a port of entry. Subsection 9(1.2) of the Act places the burden on the Applicant to satisfy the visa officer that the Applicant is not an immigrant. The onus is on the Applicant to establish the bona fides of his or her application for temporary entry into Canada as a student. Section 15(1)(b) of the Regulations states that every applicant for a student authorization should satisfy the visa officer that he or she has sufficient financial resources available to him or her.
[13] The issuance of a student authorization pursuant to subsection 9(4) of the Act is a discretionary decision. According to this Court in De La Cruz v. Canada (Minister of Employment and Immigration) (1989), 26 F.T.R. 285 (F.C.T.D.), at page 287: "[t]he duty of the visa officer is to accord proper consideration to any application, but he is not required to issue a visitor's visa unless he is convinced the applicant fulfills the legislative requirements". With respect to the scope of review of a visa officer's decision to refuse to issue a student authorization, the Court held that:
To succeed, the applicants must do more than establish the possibility that [the court] may have reached a different conclusion than the visa officer. There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative decision. (De La Cruz v. Canada (Minister of Employment and Immigration), supra, at 287; Zhao v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1124 (F.C.T.D.) (July 9, 1999))
[14] Furthermore, section 18.1(4)(d) of the Federal Court Act provides that the Federal Court may only interfere with errors of fact made by a federal administrative tribunal where the error is made in a perverse or capricious manner or without regard for the material before it. This standard of "perverse and capricious" for questions of fact has been stated by the Federal Court of Appeal to be indistinguishable from the standard of patent unreasonableness (Jaworski v. Canada (A.G.) (May 9, 2000), No. A-508-98 (F.C.A.), at para. 72).
[15] In Wong (Litigation guardian) v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377 (F.C.A.), the Federal Court of Appeal had to deal with the issue of whether or not a visa officer is entitled, at the time of an application for a student visa, to search for the long-term goal of the applicant and to take into consideration that goal in assessing whether the application is a genuine visitor within the meaning of subsection 2(1) of the Act. The Court found:
[w]efirmly believe the visa officer is entitled, even at the moment of the first application for such visa, to examine the totality of the circumstances, including the long term goal of the applicant. Such goal is a relevant consideration, but not necessarily determinative, to be weighed with all the other facts and factors in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act.
[8] In this case, it appears that the Officer was not satisfied on the basis of the evidence adduced before her that the applicant was a genuine visitor to Canada or that he would return to Lebanon once his studies were completed. The Officer considered the age of the applicant, the level of education he had attained, the relationships he had established in Canada, as well as the fact that his parents expressed an intention to apply for permanent residence in Canada. Without necessarily endorsing all the considerations that emerge from the Officer's affidavit and notes, I am of the view that she did not make an error of fact so egregious or serious as to warrant the intervention of the Court, and the inferences she drew from the evidence were not, by and large, unreasonable.
[9] The application for judicial review is therefore dismissed.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
March 20, 2003
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1088-02
STYLE OF CAUSE: WAHAB Mahmoud, in his capacity as guardian of the minor child RAMMAL Mohamad v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING : February 6, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: March 20, 2003
APPEARANCES:
James Louski FOR THE APPLICANT
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
James Louski FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario