Farid v. Canada (Minister of Citizenship and Immigration)
Between
Mariana Beshara Nawwar Farid, Applicant, and
The Minister Of Citizenship and Immigration Canada, Respondent
Mariana Beshara Nawwar Farid, Applicant, and
The Minister Of Citizenship and Immigration Canada, Respondent
[2015] F.C.J. No. 556
2015 FC 579
Docket: IMM-8398-13
Federal Court
Toronto, Ontario
Russell J.
Heard: April 2, 2015.
Judgment: May 4, 2015.
Docket: IMM-8398-13
Federal Court
Toronto, Ontario
Russell J.
Heard: April 2, 2015.
Judgment: May 4, 2015.
(41 paras.)
JUDGMENT AND REASONS
· RUSSELL J.:--
I. INTRODUCTION
1 This
is an application under s 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 for judicial
review of the decision of a visa officer [Officer], dated November 3, 2013,
which refused the Applicant's application for a temporary resident visa.
II. BACKGROUND
2 The
Applicant is a citizen of Egypt. In March 2013, she was offered a job with a
company located in Toronto. In May 2013, the Applicant applied for a work
permit and temporary resident visa.
3 In
August 2013, the applications were rejected because the Officer was unsatisfied
with the Applicant's financial documentation.
4 In
October 2013, the Applicant re-applied for a work permit and temporary resident
visa.
III. DECISION UNDER REVIEW
5 The
Applicant's second application was rejected on November 3, 2013. The Officer
was not satisfied that the Applicant would leave Canada at the end of her stay
as a temporary resident because of her family ties in Canada and Egypt, and
because of her limited employment prospects in Egypt. The Officer was also not
satisfied by the contact information on the Applicant's employment letter. The
Officer indicated that the "[f]ax number may have been erased and there
are no land line numbers which is uncommon in Egypt. No evidence of social
insurance subscription" (Certified Tribunal Record [CTR] at 4). The Officer
also said that there was no documentation relating to the Applicant's husband.
6 Further
reasons for the Decision are provided in the Global Case Management System
[GCMS] notes (CTR at 105):
· Prev intvw notes show contradictions. On the one hand, PA indicates
that husb earns low salary from govt job but then indicates that salary from
private engg work is EGP 30k per month which is very high yet could not
indicate why he insists on keeping govt job.
· Also if husb is earning that much, how come she indicated wishes to
go to Cda for 2 yrs to save some money.
· Funds last time were deposited all at once. This time, no evidence of
funds at all.
· After a careful review of all the foregoing, I am not satisfied that
PA is well-established in Egypt nor that she would return to Egypt after the 2
yrs of her LMO have been terminated, if granted a WP.
· No docus provided this time as evidence of husb's employment and
reasons why he is not accompanying. I believe that husb is only staying behind
to act as a tie to Egypt.
· Refused.
IV. ISSUES
7 The
Applicant raises the following issues in this proceeding:
Whether the Officer
fettered his or her discretion;
Whether the Officer
breached procedural fairness; and
Whether the Decision is
unreasonable.
V. STANDARD OF REVIEW
8 The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
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 settled in a satisfactory manner by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless, or where the relevant precedents appear to
be inconsistent with new developments in the common law principles of judicial
review, must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis: Agraira v
Canada (Public Safety and Emergency Preparedness), 2013
SCC 36 at para 48.
9 The
Applicant submits that the Officer's factual assessments are reviewable on a
standard of reasonableness: Dhillon v Canada
(Citizenship and Immigration), 2009 FC 614 at para 19 [Dhillon]. The Respondent submits that the
Officer's conclusions with respect to findings of fact or mixed fact and law
are reviewed on a standard of reasonableness: Dunsmuir, above, at paras 47, 53, 55, 62; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paras 52-62 [Khosa].
10 The
Court agrees that the Officer's factual determinations are reviewable on a
standard of reasonableness: Dhillon, above, at para 19; Zhou v Canada
(Citizenship and Immigration), 2013 FC 465 at para 8.
Questions of procedural fairness are reviewable on a standard of correctness: Mission Institution v Khela, 2014 SCC 24 at
para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 31.
11 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 para 47; Khosa, above, at para 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."
VI. STATUTORY PROVISIONS
12 The
following provisions of the Act are applicable in this proceeding:
· Obligation on entry
(1) Every foreign
national, other than a foreign national referred to in section 19, who seeks to
enter or remain in Canada must establish,
[...]
to become a temporary
resident, that they hold the visa or other document required under the
regulations and will leave Canada by the end of the period authorized for their
stay.
[...]
· Temporary resident
(1) A foreign national
becomes a temporary resident if an officer is satisfied that the foreign
national has applied for that status, has met the obligations set out in
paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration
made under subsection 22.1(1).
* * *
· Obligation à l'entrée au Canada
(1) L'étranger non visé
à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de
prouver:
[...]
pour devenir un résident
temporaire, qu'il détient les visa ou autres documents requis par règlement et
aura quitté le Canada à la fin de la période de séjour autorisée.
[...]
· Résident temporaire
(1) Devient résident
temporaire l'étranger dont l'agent constate qu'il a demandé ce statut, s'est
déchargé des obligations prévues à l'alinéa 20(1)b), n'est pas interdit de
territoire et ne fait pas l'objet d'une déclaration visée au paragraphe
22.1(1).
13 The
following provisions of the Immigration and Refugee
Protection Regulations, SOR/2002-227 are applicable in
this proceeding:
· Issuance
An officer shall issue a
temporary resident visa to a foreign national if, following an examination, it
is established that the foreign national
has applied in
accordance with these Regulations for a temporary resident visa as a member of
the visitor, worker or student class;
will leave Canada by the
end of the period authorized for their stay under Division 2;
· [...]
* * *
· Délivrance
L'agent délivre un visa
de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments
suivants sont établis:
l'étranger en a fait,
conformément au présent règlement, la demande au titre de la catégorie des
visiteurs, des travailleurs ou des étudiants;
il quittera le Canada à
la fin de la période de séjour autorisée qui lui est applicable au titre de la
section 2;
· [...]
VII. ARGUMENT
Applicant
14 The
Applicant submits that the Officer erred in finding that she would not return
to Egypt when her visa expired: Dhanoa v Canada
(Citizenship and Immigration), 2009 FC 729; Cao v Canada (Citizenship and Immigration),
2010 FC 941. The Applicant relies primarily on the fact that her husband will
remain in Egypt, where he works and earns a high income. She also has other
family members who will remain in Egypt. The Applicant says that her lack of
employment prospects in Egypt cannot be a valid consideration because no
applicant would ever receive a work permit if that were the standard.
15 The
Applicant also submits that the Officer erred in discounting her employment
letter. The Officer should have contacted the Applicant or her employer if
there were questions regarding the letter. The Applicant also complains that,
in an earlier temporary resident visa application, she was not advised that
there were problems with the employment letter. As a result, it was reasonable
for her to expect that the letter was sufficient. Further, it is uncommon for
employees in Egypt to have social insurance numbers.
16 Finally,
the Officer erred in finding that there was no documentation concerning the
Applicant's husband. The Applicant submitted documents relating to his
employment, property ownership and tax records.
Respondent
17 The
Respondent objects to the evidence attached to the Applicant's affidavit which
was not before the Officer. Judicial review should proceed only on the basis of
the evidence that was before the decision-maker: Lemiecha
v Minister of Employment and Immigration (1993), 72 FTR
49 at para 4; Samsonov v Canada (Citizenship and
Immigration), 2006 FC 1158 at para 7.
18 The
duty to provide reasons for temporary resident visas is minimal. An applicant
has no legal right to obtain a visa and bears the burden of establishing the
merits of his or her request; and the refusal of a temporary resident visa has
a minimal impact on someone who is outside of Canada: Donkor
v Canada (Citizenship and Immigration), 2011 FC 141; Obeng v Canada (Citizenship and Immigration),
2008 FC 754; Singh v Canada (Citizenship and
Immigration), 2009 FC 620. The Officer met the minimal
requirements. The Officer gave reasons for not being satisfied that the
Applicant would leave Canada at the end of her authorized stay. The Officer
considered the Applicant's family ties in Canada and the limited employment
prospects in her home country. There was also insufficient contact information
in the Applicant's employment letter and she failed to provide evidence of a
social insurance number. The Officer is entitled to consider the totality of
the circumstances: Wong v Canada (Minister of
Citizenship and Immigration) (1999), 246 NR 377 (FCA); Pei v Canada (Citizenship and Immigration),
2007 FC 391 at para 15. The Officer clearly explained why the Applicant's
application was rejected and the Applicant simply asks the Court to reweigh the
evidence.
19 The
Federal Court has held that an officer has no obligation to provide a visa
applicant with a running score of the weaknesses in an application: Thandal v Canada (Citizenship and Immigration),
2008 FC 489 at para 9; Nabin v Canada (Citizenship and
Immigration), 2008 FC 200 at paras 7-10 [Nabin]; Kaur Soor v
Canada (Minister of Citizenship and Immigration), 2006
FC 1344 at para 12. The Officer had no obligation to notify the Applicant of
his or her concerns.
20 Finally,
the Officer was not bound by any findings in the Applicant's previous visa
applications. The Officer was only required to consider the evidence placed
before him or her in this application. Regardless, there are no findings
concerning the employment letter in the previous decision.
Applicant's Reply
21 In
reply, the Applicant reiterates her submissions and submits that if the Officer
required her social insurance number, the Officer could have contacted the
Applicant for the information. She was unable to include it in her original
application because of long delays in obtaining it from the Egyptian government.
VIII. ANALYSIS
22 The
Respondent is right to point out that it is not open to the Applicant to
supplement the record and ask the Court to consider materials and facts that
were not before the Officer. See Association of
Universities and Colleges of Canada v Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at paras 19-20.
Consequently, I will only address the concerns raised by the Applicant on the
basis of the record that was before the Officer.
23 Two
principal points arise out of the Decision: the Officer's concerns about the
contact information on the Applicant's employment reference letter, and
"No docus for husb."
24 It
is not clear why the contact information provided was a problem. The contact
information on the reference letter included the company's address and gave the
cell phone of the general manager who signed the letter. The reasons say that
the "[f]ax number may have been erased and there are no land line numbers
which is uncommon in Egypt." It is unclear whether the contact information
prevented the Officer from making appropriate investigations with the company,
or whether it caused the Officer to doubt the authenticity of the reference
letter. After reading the GCMS notes, my conclusion is that the Officer is
simply pointing out certain features of the reference letter but they do not
play any material role in the Decision which is clearly based upon the
Officer's determination that he or she was not satisfied that the Applicant
would leave Canada at the end of the visa period.
25 The
reasons say there were no documents for the Applicant's husband, and the GCMS
notes elaborate and say "No docus provided this time as evidence of husb's
employment and reasons why he is not accompanying. I believe that husb is only
staying behind to act as a tie to Egypt."
26 The
CTR contains a letter from the Applicant in which she says that she is
submitting the following "financial support documents" (CTR at 16):
The experience letter
for the Applicant's spouse's work as a civil engineer in Saudi Arabia;
The current employment
letter and the payslips for the Applicant's spouse as a civil engineer from the
local unit of Talkha-El Dakahha -- Egypt;
The business
registration for the spouse's engineering consulting company; and
The Notice of Assessment
from the "National Taxes Authority" for the years 2012, 2011, 2010,
and 2005 related to the consulting office income.
27 The
Applicant explains that "[m]y spouse is working as a civil engineer in the
local unit of Talkha city, El Dakha, Egypt from 07/04/1997 till 07/10/1997 and
from 01/01/2002 till now" [sic, emphasis removed]. She also explains that "[m]y spouse has an
Engineering Consulting Office from 01/09/2004."
28 My
review of the CTR reveals that it does not include the evidence of the
husband's current employment (as referred to above) and does not explain why he
is not accompanying. There is an experience letter relating to the Applicant's
husband's work as a civil engineer in Saudi Arabia which indicates that he
worked for the company until 2001 (CTR at 18). There are a series of other
documents following this experience letter but they all appear to be written in
Arabic.
29 Applicants
are advised that their supporting documents must be provided in English or
French, or be translated into English or French (Government of Canada, Guide
5487 -- Applying for a Work Permit outside of Canada):
· Translation of documents
· Unless instructed otherwise by a CIC employee, all supporting
documentation must be:
in English or French;
or
· If it is not in English or French, it must be
accompanied by:
the English or French
translation; and
· * an affidavit from the person who completed the translation;
and a certified
photocopy of the original document.
· [Emphasis in original]
30 The
CTR does not contain translated copies of the documents. The documents may be,
as the Applicant says, evidence of her husband's current employment and
consulting work. But without translated copies of the documents, there was no
way for the Officer to know what information they contained, and there is no
way for the Court to know.
31 In
her application record, the Applicant includes (at 85, 87, 92-94):
A "Certificate of
Experience" for her spouse showing that he returned to work for the local
unit for Talka city center on 12/01/2002. While the translation is not clear,
it appears that he continues to work for the company ("he one of staff
headed by the center city of Talkha so far...");
A "Statement of
Salary Synonyms" for the month of July 2013;
A "Tax Card" from
the Arab Republic of Egypt. It is unclear what information the tax card
provides. It provides a starting date of 01/09/2004 and says it was issued for
an individual. An annex, dated 15/05/ 2011, provides that the Applicant's
husband requested that the address of an engineering office be moved as of
16/11/2006. The final page is described as a "Tax avowal/ wealth
avowal" which simply states it was issued 15/05/2011 and expires
14/05/2016.
32 There
is no evidence that any of this documentation was before the Officer. It does
not appear in the CTR which, in accordance with Rule 17 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, is a certified record of the documents that were before
the Officer.
33 At
the oral hearing of this application, the Applicant questioned the accuracy and
the completeness of the CTR but offered no reason why it should be incomplete.
The record shows that the Applicant has made several visa applications that
have been refused and she does not appear to be entirely clear as to what she
submitted with each application as she regards them all as part of one
application, which they are not.
34 The
Applicant also requested further time to provide the Court with evidence that
the CTR is incomplete and that she did submit the documentation referred to in
this application as listed above.
35 If
the Applicant felt that the CTR was incomplete, she should have obtained a copy
of it and submitted evidence of its incompleteness with her application. In
fact, the covering letter that accompanies the CTR shows that a copy of the CTR
was sent to the Applicant in accordance with Rule 17. I have no evidence before
me that the Applicant did not receive her copy or that she could not have
raised any issues regarding the CTR in her application.
36 In
any event, even if the information that the Applicant says she submitted had
been before the Officer, it is entirely unclear what the documentation
establishes. The tax card references an engineering office but it does not
establish that her husband has a consulting business. There is no other
documentation to establish her husband's consulting business, and there is no
evidence as to the reasons why he is not accompanying the Applicant.
37 On
the record before me, then, I cannot say that the Officer was mistaken
regarding the husband's documentation, or that it gives rise to a material
reviewable error.
38 The
Respondent is right to say that the Applicant has no legal right to a visa and
bears the burden of establishing the merits of her request and providing the
information and documentation required for the Officer to make an assessment.
See Hamza v Canada (Citizenship and Immigration), 2013 FC 264 at para 22 [Hazma]; Nabin, above, at
para 7.
39 It
is also clear that, in this context, the Officer was under no obligation to
contact the Applicant with a view to correcting any weaknesses or gaps in her
application. The Officer's concerns are in relation to the sufficiency of the
evidence, not with the credibility or authenticity of the evidence. See Lam v Canada (Minister of Citizenship and Immigration) (1998), 152 FTR 316 at para 4; Hassani v
Canada (Citizenship and Immigration), 2006 FC 1283 at
para 24; Hamza, above, at para
24. I can see no procedural fairness issue.
40 All
in all, I can find no reviewable error with this Decision that would require it
be returned for reconsideration.
41 Both
sides agree there is no question for certification and the Court concurs.
JUDGMENT
· THIS COURT'S JUDGMENT is that
The application is
dismissed.
There is no question for
certification.
RUSSELL J.
