Ogbuchi v. Canada (Minister of Citizenship and
Immigration)
Between
Henry Amechi Ogbuchi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Henry Amechi Ogbuchi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2016] F.C.J. No. 724
2016 FC 764
Docket: IMM-5357-15
Federal Court
Toronto, Ontario
Diner J.
Heard: June 28, 2016.
Judgment: July 7, 2016.
Docket: IMM-5357-15
Federal Court
Toronto, Ontario
Diner J.
Heard: June 28, 2016.
Judgment: July 7, 2016.
(19 paras.)
JUDGMENT AND REASONS
·
DINER J.:--
I. Background
1 This
is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c-27 [the Act] of a decision [the Decision] by a visa officer [the
Officer] at the High Commission of Canada in Accra, Ghana refusing the
Applicant's application for a temporary resident visa as a student.
2 The
Applicant is a 42-year old citizen of Nigeria. On February 13, 2015, he was
accepted by the Manitoba Institute of Trades and Technology [MITT] for a
Post-Graduate Certificate in International Business. The duration of expected
study was from September 10, 2015 to August 26, 2016.
3 On
July 14, 2015, the Applicant applied for a study visa. On his application, the
Applicant stated that he studied economics and statistics at the University of
Benin from 1995 to 1999 and that he has been employed by subsidiaries of
Chevron Nigeria Ltd. since 2004 -- as a Material/Warehouse Officer, a Senior
Administrative/Project Management Officer, and an Inventory and Procurement
Analyst. He also noted that he had previously applied for a student visa but
was denied due to of a lack of evidence of his travel history, employment
status, and financial status.
4 On
November 13, 2015, the Officer refused the Applicant's application for a study
permit. The Officer was not satisfied that the Applicant would leave at the end
of his stay in Canada. The Officer noted that "[i]n reaching this
decision, I have considered several factors, including... length of proposed
stay in Canada [and] purpose of visit".
5 In
the GCMS notes that accompany the refusal letter, the Officer provided the
following reasons for the Decision:
·
After a review of the
application and supporting documents provided, program of study in Canada does
not appear to be consistent with previous education and employment history.
Based on the information provided, I am not satisfied that applicant is a genuine
student who intends to complete course of study in Canada. I am also not
satisfied that [the Applicant] would leave Canada at the end of an authorized
stay given, in part, educational and employment history. Application is
refused.
II. Analysis
6 The
standard of review applicable to a visa officer's assessment of an application
for a study permit is reasonableness (Akomolafe v Canada
(Citizenship and Immigration), 2016 FC 472 at para 9; Obot v Canada (Citizenship and Immigration),
2012 FC 208 at para 12). As long as the officer's assessment is transparent,
intelligible, justifiable, and falls within a range of outcomes that are
defensible in respect of the facts and the law, this Court will not intervene (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47).
7 The
Applicant argues that he submitted evidence that he has a wife and three minor
children in Nigeria; more than twelve years of gainful employment with an
employer that expects him to return at the end of his studies; and substantial
cash savings that go well beyond those necessary to fund his education and
support his family. In light of all this, he submits that the Officer's
assessment that the length of stay proposed by the Applicant and the purpose of
the visit weigh against granting a permit is arbitrary and unsupported by the
evidence.
8 The
Applicant cites Zhang v Canada (Minister of Citizenship
and Immigration), 2003 FC 1493 at para 18 for the
proposition that "visa officer decisions have been cancelled because the
visa officer had not sufficiently taken into account the ties of family which
bound the applicant to their home country". The Applicant also cites Zuo v Canada (Citizenship and Immigration),
2007 FC 88 at para 31, where the Court found a visa officer's decision to
refuse a study permit unreasonable because of, among other things, "the
Officer's failure to consider the applicant's ties to China"; and Oloruntoba v Canada (Citizenship and Immigration), 2012 FC 1414, where Justice Zinn overturned a visa officer's
decision in light of a failure to address clear evidence in the applicant's
favour.
9 The
Respondent argues that the Applicant is simply taking issue with the weight
that the Officer assigned to the evidence and that "the weight to be
assigned to the factors... is not a basis for judicial review" (Baylon v Canada (Citizenship and Immigration),
2009 FC 938 at para 25). The Respondent submits that the onus was on the
Applicant to demonstrate that he would leave Canada at the end of the study
period (Dhillon v Canada (Citizenship and Immigration), 2009 FC 614 at para 41) and that he failed to do so. Finally, the
Respondent argues that there was nothing unreasonable in the Officer's
conclusion that the Applicant's program of study -- his purpose of visit -- was
inconsistent with his education and employment history. As a result, the
-Decision should not be disturbed.
10 I
agree with the Applicant that the Decision lacked justification in this case.
Specifically, the Officer did not offer any explanation as to why he found the
Applicant's program of study in Canada to be inconsistent with his previous
education and employment history.
11 After
all, the Applicant is seeking a post-graduate certificate in international
business. He asserts that he studied economics and statistics in university and
has been employed for over a decade by a large multinational business in the
oil and gas sector, in part as a procurement analyst. I cannot understand, from
the Officer's reasons, how this professional and educational background is
inconsistent with a one-year study program in international business.
12 It
may be that the Officer was aware of underlying issues in the application.
However, the only explanation regarding the reason for refusal -- that the Applicant
would not leave Canada at the end of his authorized stay because of his
"educational and employment history" -- is entirely unhelpful since
the Officer does not state what it is about either his education or employment
that is actually problematic.
13 In
other words, the Officer may have had perfectly justifiable reasons for basing
a refusal on any of the grounds, but needed to state, with a modicum of
clarity, what they were. A visa officer's reasons need not be perfect but they
must "allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes" (Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16). Where, as in this case, the reasons are
so inadequate as to render the decision itself unjustified and unintelligible,
and the conclusion thus falls, as a result, outside of the range of acceptable
outcomes, then the decision should be reviewed and sent back for
reconsideration.
14 One
final note: at the hearing, the Respondent made, for the first time, the
observation that several of the documents contained in the Application Record
and cited by the Applicant in his arguments -- including the Applicant's
alleged application cover letter and employment reference letters -- were not
in the Certified Tribunal Record [CTR] and therefore not before the visa
officer. The Respondent submitted that, as a result, this Court could not
consider those documents in its decision.
15 The
jurisprudence is clear that the onus is on the Applicant to demonstrate that
something was before the decision-maker if it is not in the CTR:
·
Where the Certified Tribunal
Record does not contain a document or make any reference to such a document, a
bare assertion by the applicant that the document was sent will not suffice to
meet this burden (Singh Khatra
at para. 6; Adewale v. Canada (Citizenship and
Immigration), 2007 FC 1190 at para. 11).
·
(El Dor
v Canada (Citizenship and Immigration), 2015 FC 1406 at
para 32)
16 If
the Applicant cannot overcome this presumption, the disputed evidence cannot be
considered by this Court on judicial review (Ajeigbe v
Canada (Citizenship and Immigration), 2015 FC 534 at para
13; Adewale v Canada (Citizenship and Immigration), 2007 FC 1190 at para 10 [Adewale]).
17 While
a review of the records suggests that the Respondent is correct, I need not
rule on the document controversy since the unreasonableness of the Decision is
clear even without considering the disputed documents. Having said that, it
would be helpful to the Court in the future for parties to raise any issue of
conflicting records in advance of the hearing so that it can be properly
addressed. In Adewale, for
example, Justice Blanchard ultimately concluded that he could not consider the
disputed evidence, but only after Department of Justice brought a motion to
strike it from the record.
18 It
is particularly incumbent on the Respondent to raise any evidentiary
inconsistency in a timely manner when one of the arguments posited is that the
officer in question sufficiently considered the evidence that was before him or
her. Similarly, in situations where a piece of disputed documentation is
central to the applicant's position, the issue should be addressed up front and
in a timely manner, lest that Applicant find him or herself in the position of
being unable to overcome the presumption of a complete CTR.
III. Conclusion
19 In
light of the above, this application for judicial review is granted.
JUDGMENT
THIS COURT'S JUDGMENT is that:
This application for
judicial review is allowed.
The matter is to be
sent back for redetermination by a different officer.
There is no award as to
costs.
There are no questions
for certification.
DINER J.
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