Hakimi v. Canada (Minister of Citizenship and Immigration)
Between
Ashkan Safaei Hakimi, Applicant, and
The Minister of Immigration and Citizenship, Respondent
Ashkan Safaei Hakimi, Applicant, and
The Minister of Immigration and Citizenship, Respondent
[2015] F.C.J. No. 667
2015 FC 657
Docket: IMM-3919-14
Federal Court
Toronto, Ontario
Fothergill J.
Heard: May 11, 2015.
Judgment: May 25, 2015.
Docket: IMM-3919-14
Federal Court
Toronto, Ontario
Fothergill J.
Heard: May 11, 2015.
Judgment: May 25, 2015.
(26 paras.)
JUDGMENT AND REASONS
·
FOTHERGILL J.:--
I. Introduction
1 Ashkan
Safaei Hakimi [the Applicant] has brought an application for judicial review
pursuant to s 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA]. The Applicant
challenges a decision of the Immigration Program Manager [the Officer] of the
Canadian Embassy in Tel Aviv, Israel made on April 8, 2014 to deny him a
Canadian study permit.
2 For
the reasons that follow, the application for judicial review is dismissed.
II. Background
3 The
Applicant is a citizen of Israel and a resident of Jerusalem. He is a freelance
journalist and writer, and he also works as an editor of an Israeli news
website.
4 In
January, 2014 the Applicant was accepted into the Journalism -- Print and
Broadcast Programme [the Programme] at the Humber Institute of Technology and
Advanced Learning in Toronto [Humber College]. The Programme was to begin in
September, 2014 and conclude in May, 2016.
5 Following
his acceptance into the Programme, the Applicant submitted an application to
the Canadian Embassy in Tel Aviv for a study permit on April 1, 2014. On April
8, 2014, the application was rejected on the basis that the Officer was not
satisfied that the Applicant met the requirements for obtaining a study permit
prescribed by the IRPA and the Immigration and Refugee
Protection Regulations, SOR/2002-227 [the Regulations].
III. The Officer's Decision
6 The
Officer's decision consists of a letter that was sent to the Applicant on April
8, 2014 and the Officer's notes in the Global Case Management System (GCMS).
7 The
Officer was not satisfied that the Applicant had sufficient and available
financial resources to maintain himself during the proposed period of study
without working in Canada. The Officer's GCMS notes indicate that the Applicant
had $32,166 in his bank account with recent deposits of $6,300. The Officer
questioned the source of the funds, as this was not identified in the
application. The Officer observed that this sum may be enough to cover tuition
fees and living expenses "for a little while"; however he was not
convinced that it would be enough "for the long-term".
8 The
Officer also noted that if the Applicant's parents continued to reside in Iran
(the Applicant's country of origin), then they would probably not be able to
support him financially due to economic sanctions that have been imposed on
that country.
9 In
addition, the Officer was not satisfied that the Applicant would leave Canada
upon the expiration of his study permit. The Officer's decision was based on
several factors, including the Applicant's travel history; the extent of his
family ties in his country of residence; the purpose of his proposed travel to
Canada; his employment situation; and his personal assets and financial status.
10 The
Officer noted that the Applicant had lived in Israel only since 2010, and he
had offered no evidence to substantiate his claim that he had been working as a
freelance journalist since 2012. The Officer questioned whether the Applicant
was well-integrated into Israeli society. Given the Applicant's tenuous social
and economic ties to Israel, the Officer was not convinced that the Applicant
was well-established in that country and that he would leave Canada at the end
of his stay.
IV. Issues
11 The
following issues are raised by this application for judicial review:
Whether the Officer's
conclusion that the Applicant did not meet the requirements of a Canadian study
permit was reasonable; and
Whether the Applicant
was given a sufficient opportunity to respond to the Officer's concerns.
V. Analysis
12 A
visa officer's exercise of authority in granting visas is an administrative
decision made in the exercise of discretionary power. The applicable standard
of review is therefore reasonableness (My Hong v Canada
(Minister of Citizenship and Immigration), 2011 FC 463
at paras 10-13 [Hong]).
13 Whether
the Applicant was given a sufficient opportunity to respond to the Officer's
concerns is a question of procedural fairness. The Respondent relies on the
Federal Court of Appeal's decision in Maritime
Broadcasting System Limited v Canadian Media Guild,
2014 FCA 59 at paras 50 to 58 [Maritime Broadcasting] for the proposition that a specialised tribunal's procedural
choices are entitled to deference and should be reviewed against a standard of
reasonableness.
14 Maritime Broadcasting was decided in the
context of labour relations, and its application to this case is therefore
uncertain. This Court has held that questions of procedural fairness arising
from visa applications are to be reviewed against a standard of correctness (Singh v Canada (Minister of Citizenship and Immigration), 2012 FC 526 at para 14 [Singh]). That said, the procedural protections that arise in the
processing of a student visa application are "relaxed" (Tran v Canada (Minister of Citizenship and Immigration), 2006 FC 1377 at para 2 [Tran]).
Whether the Officer's
conclusion that the Applicant did not meet the requirements of a Canadian study
permit was reasonable
15 The
Officer's GCMS notes read as follows:
·
30 years old national of Israel
wants to study at Humber College in Toronto. Single with no children.
[Applicant] is born in Iran and moved to Israel in 2010. Says to be working as
a journalist freelancer since 2012 but no proof of that has been provided. Has
$32,166 in bank with recent deposits of $6,300. This may be enough to cover
tuition fees and living expense for a little while however I'm not convinced it
is enough for the long-term. No info is given as source of money, whether from
parents or not. If parents still in Iran then they are probably unable to send
him money because of international sanctions. I note from stamps in his
passport that [Applicant] was in Canada from September 2013 until March 2014 so
not clear if he was working during that time (says on app form that he studied
while in Canada). Also not clear if [Applicant] has well-integrated into
Israeli society given the relatively short time since arriving in Israel. In
sum, I'm not convinced that [Applicant] is well-established in Israel and that
he will leave Canada at the end of his stay. Refused.
16 Decision-makers
are presumed to have weighed and considered all of the evidence before them,
absent strong indications to the contrary (Flores v.
Canada (Minister of Citizenship & Immigration),
2008 FC 723 at para 15). The Officer's GCMS notes are a reasonable reflection
of the information submitted by the Applicant in support of his application,
including information regarding his work history, bank deposits, family ties,
travel history, and the stated purpose of his proposed travel to Canada.
17 The
Applicant complains that the Officer's GCMS notes reveal unwarranted
speculation, particularly regarding whether the Applicant worked during his
previous visit to Canada and whether the Applicant's parents continue to reside
in Iran. The Applicant says that there was no evidence to justify speculation
of this kind. Furthermore, the checklist that accompanied the Officer's GCMS
notes indicated that the Applicant's travel history was an area of concern.
18 The
Respondent concedes that the inclusion of the Applicant's travel history in the
checklist as an area of concern was an error. Nevertheless, the Respondent
argues that questions regarding the Applicant's previous visit to Canada and
whether his parents might be able to provide financial support arose from the
information provided by the Applicant, as well as the requirements of the IRPA
and the Regulations, and they were therefore legitimate. I agree. Furthermore,
neither of these considerations was central to the Officer's decision, which
was fundamentally concerned with the sufficiency of the Applicant's existing
funds to support him throughout his stay in Canada and his willingness to leave
at the end of the Programme.
19 The
onus was on the Applicant to satisfy the Officer that he was not an immigrant
and that he met the statutory requirements of the IRPA and the Regulations (Obeng v Canada (Minister of Citizenship and Immigration), 2008 FC 754 at para 20 [Obeng]). As this Court observed in Hong:
·
[31] Applications for student
visa are to be analyzed on a case-by-case basis and the role of the Visa
Officer does not amount to supplementing the applicant's evidence, as counsel
for Ms. Hong seems to suggest. It is trite law that the onus is on the
applicant to provide the Visa Officer with all the relevant information and
complete documentation in order to satisfy the Visa Officer that the
application meets the statutory requirements of the Act and the Regulations (Tran v. Canada (Minister of Citizenship & Immigration), 2006 FC 1377. More particularly, in this case, it was the
applicant's responsibility to provide the Visa Officer with all of the evidence
in order to satisfy the Visa Officer of her financial capacity.
20 The
decision of the Officer was discretionary in nature. It was primarily based on
questions of fact. The decision is entitled to considerable deference from this
Court, given the Officer's special expertise (Obeng at para 21; Singh at
para 31; Hong at para 13). The
role of this Court is not to reweigh the evidence but to determine if the
outcome falls within a range of reasonable outcomes (Khosa
v Canada (Minister of Citizenship and Immigration),
2009 SCC 12 at paras 4, 59 and 61). I am satisfied that the Officer's decision
fell within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
Whether the Applicant
was given a sufficient opportunity to respond to the Officer's concerns
21 The
Applicant says that he should have been called for an interview, or given an
opportunity by letter or telephone to respond to the Officer's concerns
regarding his willingness to leave Canada upon the completion of the Programme,
as well as his financial support while in Canada. I disagree. Pursuant to the
IRPA and the Regulations, a foreign national seeking to obtain a student visa
must convince the visa officer that he is not inadmissible to Canada and that
he meets the eligibility requirements set out in the legislation. As noted
above, the procedural protections that arise in the context of a student visa
application are "relaxed", and there is no requirement that an
applicant be permitted to respond to an officer's concerns as they arise (Tran at para 30).
22 If
an officer intends to base his decision on extrinsic information of which an
applicant is unaware, then an opportunity to respond should be made available
to enable the applicant to disabuse the officer of any concerns arising from
that evidence (Huang v Canada (Minister of Citizenship
and Immigration), 2012 FC 145 at para 7). However,
where the issue arises out of material provided by the applicant, as in this
case, there is no obligation to provide an opportunity for explanation since
the provider of the material is taken to know the contents of the material (Poon v Canada (Minister of Citizenship and Immigration) (2000), 198 FTR 56 at para 12, citing Wang v
Canada (Minister of Citizenship and Immigration)
(1999), 173 FTR 266).
23 A
duty to provide an opportunity to respond may also arise where the credibility,
accuracy or genuine nature of the information submitted by the applicant is the
basis of the officer's concern (Hassani v Canada
(Minister of Citizenship and Immigration), 2006 FC 1283
at para 24). However, in this case I agree with the Respondent that the basis
of the Officer's concern was not the Applicant's credibility, but rather the
sufficiency of the information that he provided in support of his application.
24 The
burden was on the Applicant to satisfy the Officer that he was not an
immigrant. It was therefore incumbent upon the Applicant to establish that his
intentions were bona fide, and
that he would leave Canada at the end of the authorized period. A visa officer
should be able to make such an assessment on the face of the application (Singh at para 32).
25 I
am therefore satisfied that the Respondent complied with the duty of fairness.
The Officer reasonably considered the information provided by the Applicant and
made his decision in accordance with the legislative framework of the IRPA and
the Regulations. The Applicant did not discharge the onus placed on him when he
initially made his application, and there was no obligation on the Officer to
give him an opportunity to supplement his deficient application.
26 For
the foregoing reasons, the application for judicial review is dismissed.
Neither party proposed a question for certification.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is
certified for appeal.
FOTHERGILL J.
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