Rahman v. Canada (Minister of Citizenship and
Immigration)
Between
Fahmida Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Fahmida Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2016] F.C.J. No. 753
2016 FC 793
Docket: IMM-5402-15
Federal Court
Vancouver, British Columbia
Strickland J.
Heard: July 4, 2016.
Judgment: July 12, 2016.
Docket: IMM-5402-15
Federal Court
Vancouver, British Columbia
Strickland J.
Heard: July 4, 2016.
Judgment: July 12, 2016.
(30 paras.)
JUDGMENT AND REASONS
1 STRICKLAND
J.:-- This is an application for judicial review of a decision by a Senior
Immigration Officer ("Officer") of Citizenship and Immigration Canada
("CIC") dated November 24, 2015 denying the Applicant's request for a
Temporary Resident Visa ("TRV"). This application is brought pursuant
to s 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 ("IRPA").
Background
2 The
Applicant is a national of Bangladesh. She is married to Anwar Shahadat Shatil,
a citizen of Bangladesh who holds a Canadian TRV and study permit allowing him
to pursue a Master of Science degree in Biomedical Engineering at the
University of Manitoba. He arrived in Canada in September 2014 while the
Applicant remained in Bangladesh. The Applicant made her first application for
a TRV in May 2015, which was refused as were two subsequent applications. With
the assistance of her lawyer, the Applicant made her fourth application in
November 2015, which was also denied. That decision is the subject of this
application for judicial review.
Decision Under Review
3 By
letter dated November 24, 2015, the Applicant was informed that her TRV
application was refused on the basis that the Officer was not satisfied that
she would leave Canada at the end of her stay as a temporary resident
("Refusal Letter"). In reaching this decision, the Officer stated
that he or she had considered several factors, including the Applicant's travel
history, her family ties in Canada and in her country of residence, her current
employment situation, and, her personal assets and financial status.
4 Subsequently,
the Applicant was provided with further reasons for the refusal of her TRV
application in the form of entries of visa officers' notes in the Global Case
Management System ("GCMS"). These included an entry by the Officer
dated November 24, 2015 recording that the Applicant had been a senior observer
for the Bangladesh meteorological department since January 2014, that she
reports to the assistant meteorologist and that she has a very modest annual
salary of taka 136k (about $2300 Canadian, or less than $200 Canadian per
month). The entry states that the financial documents for the Applicant and her
spouse had been seen, a travel itinerary had been provided and a 108 page
submission by the Applicant's representative had been carefully reviewed. The
Officer noted there was no indication that the Applicant's spouse visited
Bangladesh since coming to Canada, the couple has no children, and the
Applicant is young and started working recently, less than 2 years ago.
Further, it was noted that she has a modest income and no travel history. The
entry also stated that despite having her direct family in Bangladesh, her
strongest tie was to her husband in Canada. Her representative had commented on
the possibility of settling in Canada, also mentioning that dual intent is
allowed. The Officer concluded that, based on the documents provided and
despite the analysis of the Applicant's representative, he or she was not
satisfied, on a balance of probabilities, that the evidence submitted with the
application demonstrated the Applicant is well-established, professionally and
financially, and constituted sufficient ties to Bangladesh to ensure that she
would comply with the terms and conditions of her stay and depart Canada when
required. On that basis, the application was refused.
Issues and Standard of Review
5 There
is only one matter at issue and that is whether the Officer's decision was
reasonable.
6 The
Applicant submits that the applicable standard of review for a visa officer's
decision to issue or refuse a TRV is reasonableness (Tavakoli
Dinani v Canada (Citizenship and Immigration), 2012 FC
1063 at para 18 [Tavakoli]) as
does the Respondent (Loveridge v Canada (Citizenship and
Immigration), 2011 FC 694 at para 10; Singh v Canada (Citizenship and Immigration),
2012 FC 526; Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]).
I agree. This Court has previously held that a visa officer's decision to deny
a TRV application based on the belief that the applicant would not leave Canada
at the end of their stay is a question of mixed fact and law. Accordingly, the
decision attracts the reasonableness standard of review (Utenkova v Canada (Citizenship and Immigration), 2012 FC 959 at para 5).
Was the Officer's decision reasonable?
Applicant's Submissions
7 The
Applicant submits the Officer's decision should be set aside as it ignored
relevant evidence. In support of this position, the Applicant submits that a
visa officer cannot "systematically immunize" a decision from judicial
review where relevant evidence is submitted by the applicant and not discussed
(Tavakoli at para 25). The
Applicant points out that this Court, in Girn v Canada
(Citizenship and Immigration), 2015 FC 1222, recently
said that a visa officer's decision to refuse a TRV application was
unreasonable because the officer ignored evidence contrary to his or her
conclusion (at para 31). The Applicant also notes that it is unreasonable for a
visa officer to be dismissive of an applicant's evidence (Kokareva v Canada (Citizenship and Immigration), 2015 FC 451 at para 12 [Kokareva]).
8 With
respect to the facts in the present case, the Applicant says the GCMS notes do
not mention the support letters from the Applicant's parents and sister; the
Applicant's paid return airline ticket and flight itinerary; evidence of a
Bangladeshi bank account in the Applicant's name; a bank statement for the
Applicant from that bank; a confirmation of shares registered in the
Applicant's name in Bangladesh; and, relevant information contained in an employment
letter written by the Applicant's immediate supervisor at the Bangladesh
Meteorological Department. All of which are said to demonstrate her ties to
Bangladesh and her intent to return.
9 The
Applicant also submits that the Officer's decision is unreasonable as it
contradicts relevant evidence without any evidentiary basis for doing so and
makes arbitrary inferences that are not supported by the evidence or the
relevant jurisprudence. In support of this position, the Applicant submits that
a visa officer must not rely on speculation without adequate consideration
given to countervailing factors. If a visa officer does so, he or she must
provide further reasons; if no further reasons are provided, the court may
characterize the officer's decision as one that does not meet the standard of
reasonableness articulated in Dunsmuir (Momi v Canada (Citizenship and Immigration), 2013 FC 162 at para 23). In particular, the Applicant says the
following with respect to the Officer's decision:
The Officer's statement
in the GCMS notes that the "Applicant is young and started working
recently (less than 2 years ago)" is incorrect and vague;
The terms
"modest" and "very modest" in relation to the Applicant's
income were contradicted by the letter from the Applicant's employer and are
also vague. If the references to the Applicant's income are references to the
Applicant's greater earning potential in Canada, then the decision is
unreasonable (Dhanoa v Canada (Citizenship and
Immigration), 2009 FC 729 at para 18 [Dhanoa]). Moreover, references to the
Applicant's earning power are made "sterile" by the absence of a cost
of living analysis, the absence of references to the Applicant's living and
working conditions in her home country and similar conditions in Canada (Dhanoa at para 14);
If, however, the Officer
is implying an issue of credibility with the Applicant or her evidence, then
there is no justification or evidentiary basis for the Officer to do so,
especially considering the Applicant voluntarily indicated her previous TRV
refusals in her current application (Kokareva at para 12);
The issue of the
Applicant's spouse not having visited Bangladesh since arriving in Canada is an
irrelevant consideration (Khatoon v Canada (Citizenship
and Immigration), 2008 FC 276 at para 12). Additionally,
the Applicant's supporting materials indicate why her spouse has not been able
to visit Bangladesh but the Officer's GCMS notes ignore this evidence;
Refusing the TRV
application because the Applicant does not have a child in Bangladesh is
"hardly sufficient to amount to a reasonable exercise of discretion when
other factors are taken into account" (Onyeka v
Canada (Citizenship and Immigration), 2009 FC 336 at
para 48); and
The Officer incorrectly
drew a negative inference on the basis of the Applicant's lack of travel
history. As stated by this Court in Dhanoa at para 12: "[l]ack of previous travel can only at most be a
neutral factor".
Respondent's Submissions
10 In
response to the Applicant's submission that the Officer ignored evidence, the
Respondent submits that the Officer is presumed to have weighed and considered
all the evidence unless the contrary is shown. Further, the Officer was not
required to make an explicit finding on each constituent element leading to the
final decision. The reviewing court must simply be able to understand why the
decision was made, looking to the entire record to determine the adequacy of
the reasons (Wang v Canada (Citizenship and Immigration), 2010 FC 201 at para 19; Florea v Canada
(Employment and Immigration), [1993] F.C.J. No 598 (FCA)
at para 1 [Florea]; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at paras 15-16 [Newfoundland Nurses]). In any event, the GCMS
notes indicate that the Officer carefully considered all of the evidence.
11 The
Respondent also submits that the Officer clearly outlined the grounds for
refusal in the Refusal Letter and the GCMS notes. These demonstrate that the
Officer was primarily concerned with the Applicant's limited financial and
professional ties to Bangladesh, and the stronger familial pull of her husband
in Canada compared to her direct family in Bangladesh. The Respondent says
these concerns are unambiguous and are based on the evidence submitted by the
Applicant.
12 The
Respondent submits that the Officer's conclusion was not a negative credibility
finding nor did it involve arbitrary inferences. There was an explicit
statutory onus on the Applicant to satisfy the Officer that she would depart
Canada at the end of the period authorized for temporary residence in Canada.
Further, it is well-established that an officer must weigh the extent of an
applicant's economic incentives and family ties in Canada and their home
country. The weight to be assigned to these factors is a matter for the
officer's discretion and is not a basis for judicial review (Wang v Canada (Minister of Citizenship and Immigration), 2006 FC 1298 at paras 9-10; Chhetri v Canada
(Citizenship and Immigration), 2011 FC 872 [Chhetri]).
13 The
Respondent states that a visa officer is not obliged to conduct a cost of
living analysis when considering an applicant's financial incentive to overstay
in circumstances, like these, where the officer's decision includes an
assessment of a number of different factors (Huang v
Canada (Citizenship and Immigration), 2012 FC 145 at
paras 8-9 [Huang]; Sadiq v Canada (Citizenship and Immigration),
2015 FC 955 at paras 19-23 [Sadiq]).
It was also reasonable for the Officer to consider income of less than $200
Canadian a month to be a very modest salary compared to the draw of a Canadian
salary (Calaunan v Canada (Citizenship and Immigration), 2011 FC 1494 at paras 29-30).
14 The
Respondent also submits it was not irrelevant for the Officer to have
considered the Applicant's lack of travel history when assessing her TRV
application. This Court has held that an applicant's lack of travel history is
a relevant consideration on a visa application (Dhillon
v Canada (Citizenship and Immigration), 2009 FC 614 at
para 43 [Dhillon];Obeng v Canada (Citizenship and Immigration),
2008 FC 754 at paras 13, 20 [Obeng]). In the present case, the Applicant had no prior travel history
which could be relied on as a positive factor to satisfy the Officer that the
Applicant would leave Canada at the end of her authorized stay.
15 The
Respondent submits that the Applicant is asking the Court to reweigh the
evidence, which is not the proper function of the Court on judicial review (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 61; Pei v Canada (Citizenship and
Immigration), 2007 FC 391 at para 14).
Analysis
16 The
IRPA requires that a foreign national, before entering Canada, apply for a visa
(s 11(1)), establish that they hold such a visa and that they will leave Canada
by the end of the period authorized for their stay (s 20(1)(b)). With respect
to TRV's, s 7(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 ("IRP Regulations") states that a foreign
national may not enter Canada to remain on a temporary basis without first
obtaining a TRV. Section 179 of the IRP Regulations sets out the requirements that must be met before a visa officer
will issue a TRV. Among these is the requirement that the visa officer be
satisfied that the foreign national will leave Canada at the end of the period
authorized for his or her stay. There is a legal presumption that a foreign
national seeking to enter Canada is an immigrant, and it is up to him or her to
rebut this presumption (Obeng at
para 20). Therefore, in the present case, the onus was on the Applicant to
prove to the Officer that she is not an immigrant and that she would leave
Canada at the end of the requested period of stay (Chhetri at para 9).
17 With
respect to the Applicant's allegation that the Officer ignored relevant
evidence, the Officer is assumed to have weighed and considered all the
evidence presented unless the contrary is shown, and that is not the case here
(Florea at para 1; Ahmed v Canada (Citizenship and Immigration),
2013 FC 1083 at para 34). The GCMS notes state that counsel for the Applicant
submitted a 108 page submission, including a 12 page analysis, which was
carefully reviewed by the Officer. As can be seen from the Certified Tribunal
Record, attached to the 108 page submission were the two family support
letters, the Applicant's return airline ticket and flight itinerary, the letter
from the Applicant's employer, evidence of a Bangladeshi bank account in the
Applicant's name, a bank statement for the Applicant from that bank, and, a letter
of allotment of shares registered in the Applicant's name in Bangladesh.
18 Further,
most of the documents the Applicant asserts were ignored by the Officer were
referenced in the GCMS notes. The November 24, 2015 entry by the Officer who
refused the application refers to the Applicant's travel itinerary, her
employment information, the financial documentation of her and her husband and,
as noted above, her counsel's submissions. A prior entry by another officer on
November 19, 2015 specifically addresses the "proof on file"
including her employer's letter and setting out the information contained in
that letter; her income of BDT 135,780, which is stated in her employer's
letter; her savings of BDT 224,306.56 which comes from the certificate
confirming her bank account; and, an investment in shares in the amount of BDT
500,000, which comes from the letter of allocation of shares, as well as other
financial information.
19 The
Applicant takes issue with the fact that the GCMS notes were made by two different
officers and submits that there is no indication in the GCMS notes that the
Officer responsible for determining her TRV application considered the notes of
the other visa officer. I would note first that the jurisprudence is clear that
the GCMS notes form part of the reasons for the decision (Rezaeiazar v Canada (Citizenship and Immigration), 2013 FC 761 at paras 58-59; Veryamani v
Canada (Citizenship and Immigration), 2010 FC 1268).
Furthermore, in the absence of evidence to the contrary, it is reasonable to
infer that the deciding Officer considered all the notes in the GCMS system
when deciding on the Applicant's TRV application. In any event, as noted above,
the Officer who made the determination did, directly and indirectly, refer to
the Applicant's supporting documentation.
20 In
regard to the Applicant's submission that the Officer ignored relevant
information contained in the employment letter, the letter is explicitly
referred to in the earlier GCMS entry which records that the Applicant has been
a senior observer with the Bangladesh Meteorological Department since January
2014 and, as indicated by her employer, she is currently on a temporary
probationary period and will be eligible for full-time employment on January 1,
2016, conditional upon her returning from Canada. As noted above, the
employment letter is also attached to the 108 page submission of counsel
considered by the Officer who issued the refusal.
21 While
it is true the Officer did not specifically refer to the two family support
letters in his or her notes, the support letters were also attached to the 108
page submission, which the Officer stated was carefully reviewed. The Officer
also noted that the Applicant had direct family in Bangladesh but found that
her strongest tie was to her husband in Canada. This indicates that the Officer
weighed the Applicant's family ties to Bangladesh and to Canada in reaching his
or her decision. In any event, the Officer was not required to explicitly
mention each and every piece of evidence considered (Newfoundland
Nurses at para 16).
22 In
short, I do not agree with the Applicant that the Officer ignored evidence.
23 The
Applicant also raised numerous arguments to support her position that the
Officer contradicted the evidence, without an evidentiary basis for doing so,
and that the Officer made arbitrary inferences.
24 In
this regard, I do not share the Applicant's concern with respect to the alleged
vagueness of the Officer's statement that the "Applicant is young and started
working recently (less than 2 years ago)". The Officer need not define
words such as "young" and "recent", their meaning is clear
and self-evident in the context of his or her decision.
25 The
Officer's reference to the Applicant's salary as very modest is more
problematic. While her employer's letter described her income as
"competitive", it appears that the Officer reached the conclusion
that it is modest based on his conversion of her salary to Canadian dollars,
being less than $200.00 per month. This raises the question of whether the
Officer's assessment of her financial status was given undue weight and
improperly conducted in absence of a cost of living analysis. However, the
Officer's description of her income was only one aspect of the evidence that
was considered, but failed to establish, that the Applicant is well-established
professionally and financially. Similarly, even if the "modest"
nature of her salary was considered by the Officer in the context of the
Applicant's greater earning potential in Canada, because it was not the sole
factor considered and was not given inordinate weight in refusing the
application, it is not a reviewable error (Huang at paras 8-9; Sadiq at
para 23).
26 Finally,
the Applicant suggests that, by referring to her modest salary, the Officer may
have been implying that he or she had an issue with credibility. However, the
Applicant has failed to fully develop this submission and, in my view, it is of
no merit.
27 The
Applicant correctly states that the Officer observed that the Applicant's
spouse had not visited Bangladesh since coming to Canada, without reference to
the spouse's explanation contained in his submission made in support of her
application that, because of his work obligations, it was not possible for him
to visit Bangladesh during the 2015 holiday season. In my view, the relevance
of the Officer's observation is questionable, however, it was also peripheral
to his or her main findings with respect to the Applicant's financial and
familial ties to Bangladesh.
28 With
respect to the GCMS notes indicating that the Applicant has no children and no
travel history, the issue of whether or not the Applicant had any children was
directly relevant to the Officer's assessment of the strength of the
Applicant's familial ties to Bangladesh.
29 The
Applicant's lack of a travel history is also a relevant consideration on a visa
application (Dhillon at para 43; Obeng at para 13; Huang at para 11). However, as the Applicant submits, a lack of previous
travel is, at most, a neutral factor (Dhanoa at para 12). The Officer referred to her travel history both in the
GCMS notes and in the Refusal Letter. The latter stated that the Applicant had
not satisfied the Officer that she would leave Canada at the end of her stay as
a temporary resident and, in reaching that conclusion, the Officer considered
four factors, including her travel history. While I agree that the Officer
erred in treating the Applicant's lack of travel history as a negative factor,
given the consideration also afforded to the Applicant's familial, financial
and professional ties, that error alone is not sufficient to render the
decision unreasonable.
30 The
Officer concluded, having considered the totality of the evidence, that the Applicant
had not met her onus of satisfying the Officer that she would depart Canada at
the end of her authorized stay. In my view, that decision was within the range
of possible, acceptable outcomes.
JUDGMENT
·
THIS COURT'S JUDGMENT is that
The application for
judicial review is dismissed.
There shall be no order
as to costs.
No question of general
importance for certification was proposed or arises.
STRICKLAND J.
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