Federal Court Decisions

 Date: 20120503

Docket: IMM-6149-11

Citation: 2012 FC 527

Ottawa, Ontario, May 3, 2012

PRESENT:     The Honourable Mr. Justice Russell

 

 

BETWEEN:

	ZAINAB  BAHR
		Applicant
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

INTRODUCTION

[1]               This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC­ 2001, c 27 (Act) for judicial review of the decision of an immigration officer at the Canadian Embassy in Amman, Jordan (Officer), dated 14 August 2011 (Decision), which refused the Applicant’s application for a study permit.

 

BACKGROUND

[2]               The Applicant is a 26-year-old citizen of Iraq. She currently lives in Amman, Jordan as a visitor.

[3]               The Applicant was admitted to a Computer Programming Course at Niagara College Canada in Welland, Ontario and planned to begin her studies in September 2012. She applied for a study permit at the Canadian Embassy in Amman on 31 July 2011 (Study Permit Application). With the Study Permit Application, the Applicant submitted a letter from Haider Muhi Abbas, the Managing Director of the Al Iraq Company (Abbas Letter). The business activities of the Al Iraq Company (Al Iraq) are unclear on the record. The Abbas Letter said the Applicant worked for Al Iraq and that it would pay her costs and expenses in Canada.

[4]               The Applicant also submitted a letter from her father, Dr. Talbib Bahr Fayyadh (Fayyadh), her father. He said he would pay the Applicant’s expenses and costs in Canada. The Father also provided a snapshot of his financial situation to prove his ability to pay and a letter from his bank. The letter from the bank showed his account had a balance of 101 Million Iraqi Dinars – approximately $60,000.

[5]               The Officer considered the Applicant’s submissions and refused the Study Permit Application. He wrote the Applicant on 14 August 2011 to inform her of the reasons for the Decision.

DECISION UNDER REVIEW

[6]               The Decision in this case consists of the letter the Officer sent the Applicant (Refusal Letter) and this notes on the file recorded in the Global Case Management System (GCMS Notes).

[7]               In the Refusal Letter, the Officer told the Applicant he was refusing her Study Permit Application because he was not satisfied she met the requirements of the Act or the Immigration and Refugee Protection Regulations SOR/2002-227 (Regulations). He said he was not satisfied the main purpose of her visit to Canada was actually education or that she would leave Canada at the end of her stay.

[8]               In the GCMS Notes, the Officer noted the Applicant had finished high school in 2004. He found she had not taken any courses related to Information Technology since she finished high school.

[9]               The Officer also found the Abbas Letter did not appear to be genuine. He noted it was generated by a laser printer, was not on letterhead, and was of poor quality. The Officer found that, even if the Abbas Letter was genuine, Al Iraq was not a well-established company. He pointed out that although it offered to pay the Applicant’s expenses in Canada, there were no documents showing Al Iraq’s financial situation. The Officer also noted Fayyadh submitted documents which showed he was a lecturer and employed by two different companies.

[10]           The Officer concluded the Applicant was not a genuine student. He also found, based on the economic and security situation in Iraq, that the Applicant would not likely leave Canada if she were admitted. Accordingly, he refused the Study Permit Application.

STATUTORY PROVISIONS

[11]           The following provisions of the Act are applicable in this proceeding:

[12]           The following provisions of the Regulations are also applicable in this proceeding:

ISSUES

[13]           The Applicant raises the following issues in this proceeding:

a.                   Whether the Officer breached her right to procedural fairness by not calling her for an interview;

 

b.                  Whether the Officer ignored evidence.

 

 

STANDARD OF REVIEW

[14]           The Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.

[15]           The Officer’s decision not to call the Applicant for an interview touches on the opportunity she had to respond to his concerns, which is an aspect of the duty of fairness. In Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour) 2003 SCC 29 (QL), the Supreme Court of Canada held at paragraph 100 that “It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” Further, the Federal Court of Appeal in Sketchley v Canada (Attorney General) 2005 FCA 404 at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The standard of review on the first issue is correctness.

[16]           The Officer’s finding the Applicant is not a genuine temporary student is a finding of fact. In Dunsmuir, above, at paragraph 51, the Supreme Court of Canada held that deference is generally to be given to decision-makers’ findings of fact. The Supreme Court of Canada affirmed this holding in Smith v Alliance Pipeline 2011 SCC 7 at paragraph 26. The standard of review on the second issue is reasonableness.

[17]           When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa 2009 SCC 12 at paragraph 59.  Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

ARGUMENTS

The Applicant

            Breach of Procedural Fairness

 

[18]           The Applicant says the Officer was obligated to call her for an interview but did not. This breached her right to procedural fairness, so the Decision must be returned. The Applicant notes the Officer refused the Study Permit Application in part because he found the Abbas Letter was not genuine. She says Hassani v Canada (Minister of Citizenship and Immigration) 2006 FC 1283 establishes that officers must tell applicants when they believe documents submitted are not genuine. The Officer did not give the Applicant the opportunity to respond to his concerns through an interview.

[19]           The Officer also did not give the Applicant the opportunity to address his concerns about the economic and security situation in Iraq. Hassani also shows that officers have the duty to address concerns which do not flow from the requirements of the Act or Regulations. The Officer was bound to advise the Applicant of this concern.

[20]           The Applicant notes the Officer had concerns about the gap between her high school graduation and the start of her course in 2012. Although this is a concern which flows from the requirements of the Act or Regulations, it is impossible to tell from the reasons how this played against the other factors in the Decision. It is impossible to tell how the outcome of this case would have been different if the Officer had not breached the Applicant’s right to procedural fairness. Hence, the Decision must be returned.

Officer Ignored Evidence

[21]           Although the Officer was concerned about Al Iraq’s ability to pay her expenses, the Applicant points out that Fayyadh said he had more than $60,000 in the bank. There was evidence showing what financial resources were available to the Applicant, which the Officer did not address.

The Respondent

            Abbas Letter

 

[22]           The Respondent says the duty of fairness with respect to study permit applications is relaxed. The Officer was not under an obligation to advise the Applicant of any concerns he had. The Respondent also says the Officer’s concerns about whether the Abbas Letter was genuine were not a major part of the Decision. The Officer made an alternate finding assuming the Abbas Letter was genuine and this finding was sufficient to dispose of the Study Permit Application. Assuming the Abbas Letter was genuine, he found there were insufficient answers as to why Al Iraq would send someone with no computer training to study in Canada.

[23]           The Officer’s finding that the Abbas Letter was not genuine was not necessary to his final conclusion. Any breach of procedural fairness related to this finding would not have affected the outcome of the Study Permit Application, so there is no basis for this Court to intervene (see Stelco Inc. v British Steel Canada Inc., [2000] FCJ No 286 and Bhogal v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1581 at paragraph 22).

Situation in Iraq

[24]           The Respondent also says the Officer’s reliance on the economic and security situation in Iraq does not lead to a reviewable error. Officers may rely on their experience of local and regional conditions. The Respondent points to Skoruk v Canada (Minister of Citizenship and Immigration) 2001 FCT 1220 where Justice Marc Nadon had the following to say on point at paragraphs 14 and 15:

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.

 

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.

 

 

[25]           Hassani, above, is distinguishable because it involved an application under the Federal Skilled Worker (FSW) program. An application for a study permit involves a less rigid process than an FSW application, so the procedural requirements are not the same.

Funds

[26]           The Respondent further points out that the financial information submitted by Fayyadh only showed his current account balance. The letter from the bank did not break down the kind of assets he held, so it was not irrefutable evidence he had sufficient funds to pay the Applicant’s expenses. To be successful in her Study Permit Application, she had to show her Father had cash or cash equivalents of $80,000, which she did not do. Further, it does not make sense that the Applicant would rely on her Father’s assets to pay her expenses when Al Iraq had promised it would do the same. She should have clarified this aspect of the Study Permit Application and the Officer cannot be held responsible for her failure to do so.

The Applicant’s Reply

[27]           The Applicant says Hassani, above, is not limited in application only to Federal Skilled Worker applications. Further, Skoruk, above, involved a requirement arising from the regulations, but the present case does not. The Applicant in this case could not have known how the economic and security situation in Iraq would have affected the outcome of her application, so the Officer had to advise her of his concern about these issues. The Respondent’s arguments about Fayyadh’s financial situation are pure speculation.

The Respondent’s Further Memorandum

[28]           The Respondent says the Study Permit Application was refused because there were obvious omissions and ambiguities in it. It is no answer for the Applicant to now say the Officer should have advised her of his concerns when the onus was on her to submit sufficient evidence and explain her application.

[29]           The Respondent also says it did not matter to the Study Permit Application that the Abbas Letter was not genuine. The Officer presumed the Abbas Letter was genuine but found there was still a gap in her application: there was no evidence Al Iraq could pay for her studies and expenses.

[30]           The evidence the Applicant submitted to show Fayyadh’s income and assets was not particularly reliable. The Officer did not reject the study permit for lack of funds, so Fayyadh’s promise to pay could not have saved the Study Permit Application. This evidence did not address the Officer’s concern that the Applicant would not leave Canada at the end of her stay. The Applicant did not draw all the aspects of her application together to show the Officer why she should be granted a study permit. The Decision is within the Dunsmuir range, so the Court should not intervene.

ANALYSIS

[31]           The issues before me in this case have been before the Court on many previous occasions and I think it would be helpful at the outset to examine some of the relevant case law before addressing the facts of the case.

[32]           First of all, as regards the duty of fairness, Justice Francis C. Muldoon provided some general guidance in Li v Canada (Minister of Citizenship and Immigration) 2001 FCT 791, at paragraphs 45 to 50:

The first factor identified by the Court in Baker is the closeness of the administrative process to the judicial process. The more the determinations which must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. The processing of student authorization applications by a visa officer is highly administrative and does not resemble judicial decision-making. This factor militates in favour of more relaxed requirements under the duty of fairness.

 

The second factor is the nature of the statutory scheme pursuant to which the body operates. Greater protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue. For student applications, an unsuccessful applicant can seek a remedy in this Court by judicial review. This militates in favour of more relaxed procedural requirements.

 

The third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individuals affected. The more important the decision is to their lives and the greater its impact on those persons, the more stringent the procedural protections mandated. A negative decision means that the applicant will be unable to study in Canada for a temporary period. The individual is free to apply again in the future. Therefore, this factor militates in favour of more relaxed procedural requirements.

 

The fourth factor is the legitimate expectations of the person challenging the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, it will be required by the duty of fairness. Nevertheless, this doctrine is does not create substantive rights. An applicant for a student authorization does not have a legitimate expectation regarding the procedure followed in processing the application.

 

Finally, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose the procedures, or when the agency has an expertise in determining what procedures are appropriate. The Immigration Act does not require that a particular procedure be followed in processing student authorizations. Considering the large number of student authorization applications which are processed, the procedure adopted by the Embassy should be respected.

 

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.

 

 

[33]           In Khan v Canada (Minister of Citizenship and Immigration) 2001 FCA 345, at paragraphs 31 and 32, the Federal Court of Appeal addressed the factors that limit the content of the duty of fairness in cases such as this one:

The factors tending to limit the content of the duty in the case at bar include: the absence of a legal right to a visa; the imposition on the applicant of the burden of establishing eligibility for a visa; the less serious impact on the individual that the refusal of a visa typically has, compared with the removal of a benefit, such as continuing residence in Canada; and the fact that the issue in dispute in this case (namely, the nature of the services that Abdullah is likely to require in Canada and whether they would constitute an excessive demand) is not one that the applicant is particularly well placed to address.

 

Finally, when setting the content of the duty of fairness appropriate for the determination of visa applications, the Court must guard against imposing a level of procedural formality that, given the volume of applications that visa officers are required to process, would unduly encumber efficient administration. The public interest in containing administrative costs and in not hindering expeditious decision-making must be weighed against the benefits of participation in the process by the person directly affected.

 

 

[34]           Justice Robert L. Barnes also addressed these issues in Wang v Canada (Minister of Citizenship and Immigration) 2006 FC 1298, at paragraph 20:

In this case, the Respondent was dealing with one of several thousand visa applications it receives in Beijing each month. Its practices in the rendering of decisions are a reflection of the workloads associated with this process. Whatever the merits of her application, the Applicant had no right to enter Canada. The fairness duty to provide reasons in a context like this would be at the lower end of detail and formality and, in my view, the reasons provided to the Applicant were sufficient to meet that legal obligation.

 

 

[35]           It is also well recognized that, to use the words of Justice Judith Snider in Ayatollahi v Canada (Minister of Citizenship and Immigration) 2003 FCT 248 at paragraph 12 “the decision on an application for a temporary student authorization is not judicial or quasi-judicial in nature.”

[36]           It has to be borne in mind that the onus was on the Applicant to meet the evidentiary burden of satisfying the Officer that she would leave Canada at the end of her authorized stay. The words of Justice Luc Martineau in Huang v Canada (Minister of Citizenship and Immigration) 2012 FC 145, at paragraph 7, should be kept in mind:

The applicant’s arguments are unconvincing. Case law teaches that where an applicant fails to meet the evidentiary onus of satisfying the Visa Officer that they will leave Canada at the end of their authorized stay, an interview is not a statutory requirement. It is the applicants who bears the onus of providing visa officers with thorough applications in the first place (Lu v Canada (Minister of Citizenship and Immigration), 2002 FCT 440 at para 11; Dhillon v Canada (Minister of Citizenship and Immigration), 2009 FC 614 at paras 30-32; Bonilla v Canada (Minister of Citizenship and Immigration), 2007 FC 20 at para 22 [Bollina ]). Generally, where an officer has extrinsic information of which the applicant is unaware, an opportunity to respond should be made available to the applicant to disabuse the officer of any concerns arising from that evidence (Ling v Canada (Minister of Citizenship and Immigration), 2003 FC 1198 at para 16; Chow v Canada (Minister of Citizenship and Immigration), 2001 FCT 996 at para 14). A similar exception is found where the officer's conclusion is based on a subjective consideration rather that on objective evidence (Bollina, above, at para 27; Yuan v Canada (Minister of Citizenship and Immigration), [2001] FCJ 1852 at para 12). This is not the case here. In this instance, the Visa Officer relied only on materials submitted by or known to the applicant and so he was not required to conduct an interview. By themselves, the expired bank note, the lack of any other financial records or documentation to confirm residency and registration, are relevant to assess financial capability and his degree of establishment in China (for example, the applicant does not own a house in China). Thus, no reviewable error has been made in this regard by the Visa Officer.

 

 

[37]           Likewise, the words of Justice Russel Zinn in Singh v Canada (Minister of Citizenship and Immigration) 2009 FC 620, at paragraph 7, are equally applicable to the case before me:

I find that there is no merit to the submission that the officer ought to have provided the applicant with an opportunity to address his concerns. Justice Russell in Ling v. Canada (Minister of Citizenship and Immigration), 2003 FC 1198, reviewed the law as to when a visa officer ought to provide such an opportunity. Relying on Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 468, he noted firstly that there was no statutory right to an interview, or any dialogue of the sort suggested here. Secondly, it was noted that generally an opportunity to respond is available only when the officer has information of which the applicant is not aware. As in Ling, that is not the situation here and thus no opportunity was required to be given to Mr. Singh to address the officer's concerns. Further, when as here the officer is relying only on materials submitted by or known to the applicant, there is no need for an interview.

 

 

[38]           Although the duty of fairness is minimal in this situation, there is certainly jurisprudence from the Court to the effect that where an immigration officer has concerns with respect to the credibility or the genuineness of documents, the officer should provide the applicant with an opportunity to respond to such concerns. See Salman v Canada (Minister of Citizenship and Immigration) 2007 FC 877, and Hassani, above.

[39]           In the present case, however, it is clear from the GCMS Notes that there were several important factors relied upon to doubt whether the Applicant would return to Iraq or Jordan after coming to Canada. In the affidavit submitted by the Officer for this application — which, in my view, is admissible because it simply elaborates on the reasons in the notes and is not an attempt to go beyond the Decision (see Sklyar v Canada (Minister of Citizenship and Immigration) 2008 FC 1226 at paragraph 11 and Kalra v Canada (Minister of Citizenship and Immigration) 2003 FC 941 at paragraph 15)  — the Officer says that, even without his concerns over the genuineness of the Abbas Letter, he would still have not been persuaded of the Applicant’s bona fides. When I review the GCMS Notes and the other factors at play in the application, I am convinced that this is the case. In fact, in the Decision itself the Officer says “If this is indeed a genuine document, then it appears that the employer is not a well-established company.” I think the Officer is making it clear that, quite apart from the issue of whether the letter is genuine, there are significant problems with this company that do not support the application and which give rise to concerns about the Applicant’s bona fides.

[40]           In the circumstances, I do not think there was an obligation to put the concerns over the genuineness of the letter to the Applicant because the real problem was that it is unusual for companies in Iraq to fund Canadian education and there was no supporting documentation to back up this commitment or to show it was genuine.

[41]           As regards the Officer’s reliance upon economic and security concerns in Iraq without putting these concerns to the Applicant, the Applicant says that the duty of fairness requires an officer to put concerns to an applicant whenever those concerns could not be reasonably anticipated by the applicant. I do not think that the jurisprudence of this Court supports this position. For example, in Tran v Canada (Minister of Citizenship and Immigration) 2006 FC 1377, at paragraphs 30 to 33, Justice Michel Shore had the following to say on point:

As stated above, procedural protection that arises in the context of a student visa application is “relaxed”. There is no unfairness if the Visa Officer did not communicate all of her concerns to Mr. Le Minh Duc Tran or that she did not accord him an opportunity to respond to those concerns. (Li, above; Skoruk, above)

 

It is also reasonable to expect that Visa Officers will bring their own experience and expertise to the applications before them. (Wen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1262, [2002] F.C.J. No. 1719 (QL), at para. 16; Skoruk, above, at para. 14)

 

The fact that the Visa Officer considered the availability of similar culinary management programs of study available in Vietnam and South Asia at a “fraction of the cost” does not constitute an error. Contrary to what is argued by Mr. Le Minh Duc Tran, the Visa Officer did not rely on extrinsic evidence, but rather relied on her own expertise and analysis of all the evidence before her. (Wen, above, at paras. 18-19)

 

As in Skoruk, above, these considerations of local conditions coupled with those considerations more personal to Mr. Le Minh Duc Tran, were part of the totality of circumstances which the Visa Officer had to assess in reaching her decision. (the Brown Affidavit; Skoruk, above, at para. 14)

 

[42]           So it seems to me that what applicants should expect is that the onus is upon them to make a convincing case and that, in assessing their applications, visa officers will use their general experience and knowledge of local conditions to draw inferences and reach conclusions on the basis of the information and documents provided by the applicant without necessarily putting any concerns that may arise to the applicant. The onus is upon the applicant to ensure that the application is comprehensive and contains all that is needed to make a convincing case.

[43]           I can find no reviewable error with the Decision.

[44]           Counsel agree there is no question for certification and the Court concurs.

 

JUDGMENT

 

 

THIS COURT’S JUDGMENT is that

 

1.                  The application is dismissed.

2.                  There is no question for certification.

 

“James Russell”

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-6149-11

 

STYLE OF CAUSE:                          ZAINAB  BAHR

                                           

                                                            -   and   -

 

                                                              THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION                                                                                

                                                          

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      April 4, 2012

                                                           

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          HON. MR. JUSTICE RUSSELL

 

DATED:                                             May 3, 2012

 

 

APPEARANCES:   

 

Hart A. Kaminker                                                                                 APPLICANT

                                                                                                                     

Stephen Jarvis                                                                                      RESPONDENT                                 

 

                              

                                                                                                                                                                                                                                                                                                                                                                                                                                         SOLICITORS OF RECORD:    

 

Hart A. Kaminker                                                                                 APPLICANT

Barrister & Solicitor

Toronto, Ontario 

                                                                                                                  

Myles J. Kirvan, Q.C.                                                                          RESPONDENT

Deputy Attorney General of Canada