Date: 20050117
Docket: IMM-10482-03
Citation: 2005 FC 31
BETWEEN:
BETHOUO FELICIANO EYMARD BONI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.
[1] This is an application for judicial review of a decision by a visa officer of the Department of Citizenship and Immigration, dated October 23, 2003, denying the applicant's application for a Canadian study permit.
[2] The applicant is seeking a written of certiorari in order to have the officer's decision set aside and to have his case re-examined by another officer.
[3] The applicant is a citizen of the Ivory Coast who lived in Canada from August 1998 to November 2002. When he arrived in Quebec, he began studies at the University of Montréal in economics. After failing various courses in which he was enrolled, the applicant went to the Institut Supérieur d'Informatique (the ISI) to pursue collegiate studies.
[4] The applicant's residence authorization expired on April 30, 2001.
[5] On September 15, 2001, the applicant was involved in a car accident in which he was injured.
[6] In November 2002, the applicant left Canada to return to the Ivory Coast to renew his student visa authorization. He filed three applications to do this, dated November 26, 2002, December 30, 2002, and March 6, 2003. These three applications were denied on the ground that the visa officer did not believe the applicant was a bona fide student and that he would leave Canada once the studies were completed.
[7] The application which is the subject of the instant judicial review was filed on September 8, 2003. The entries in the Computer Assisted Immigration Processing System (CAIPS) indicate that the applicant was not interviewed. The application was denied on October 23, 2003.
[8] In making her decision, the visa officer had the following evidence before her: forms, a letter from the applicant's counsel, the applicant's statutory declaration and letter, transcripts, a letter from his physician, a certification from his father, information on his bank accounts in Canada, information on his collegiate studies program and a letter from Air France confirming his training period in their deployment and assistance branch.
[9] The officer began by pointing out to the applicant the requirements for obtaining a study permit: he must establish that he has good intentions, he will leave Canada by the end of the period authorized for his stay, he meets the conditions for entry to Canada and does not fall within one of the categories of persons inadmissible to Canada, and he is in a position to pay his school fees and support himself throughout his residence in Canada.
[10] She then proceeded to indicate why, based on the information and documents supplied by the applicant, she had determined that he did not meet the conditions set out in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), and at the same time did not meet the study permit requirements. On the form provided for this purpose, she ticked the boxes beside the following findings:
[TRANSLATION]
I am not satisfied that you will leave Canada at the end of the period authorized for your stay. Specifically, you did not persuade the visa officer that the ties to your country of residence are strong enough to guarantee your return after your stay in Canada.
You have not shown that your academic profile is suited to the studies you are planning to undertake in Canada.
[11] Finally, the comments in the CAIPS indicate that the officer based her decision on several points, including the fact that the applicant failed six out of sixteen courses in his four terms of studies at the University of Montréal, over a three year period, the applicant's high rate of absenteeism from his courses at the ISI and the applicant being in Canada without status. She concluded that the applicant had shown a lack of seriousness in his studies and did not accept his explanation that he could not attend his courses regularly because of the injuries suffered in the accident, noting that he was still able to carry out [TRANSLATION] "an intensive search for training".
[12] The decision of a visa officer is a discretionary one (see Zheng v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 110 (T.D.) (QL), and Lu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 579 (T.D.) (QL)).
[13] In De La Cruz v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 111 (T.D.) (QL), this Court ruled on the extent of the examination of a visa officer's decision to deny a student residence authorization:
To succeed, the applicants must do more than establish the possibility that [the Court] might have reached a different conclusion than the visa officer. There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative decision.
[14] I feel that the proper standard to be applied in judicial review of a visa officer's decision, regarding a study permit application, is that of the patently unreasonable decision (see Song v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 385 (T.D.) (QL), and Li v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 394 (T.D.) (QL)). In saying this I am well aware that some of my colleagues, in cases similar to the one at bar, have preferred to adopt the standard of the reasonable decision simpliciter (see Lin v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 106 (QL), Bozorg v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 496 (QL), and Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125 (QL)). I humbly disagree. The officer's conclusions will not be disturbed unless they are so unreasonable as to require the Court's intervention.
[15] Accordingly, the question in the case at bar is whether the visa officer's decision is vitiated by a patently unreasonable error requiring this Court's intervention through judicial review.
[16] The requirement that a visa be obtained before a foreign national enters Canada is set out in section 11 of the Act. In order to obtain a visa, persons wishing to enter Canada as visitors must show they will leave the Country once their stay ends, pursuant to section 20:
| 20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, |
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| 20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver :(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and |
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a) pour devenir un résident permanent, qu'il détient les visa ou autres documents réglementaires et vient s'y établir en permanence; |
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| (b) 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. |
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b) 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. |
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[17] Section 9 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), provides that a foreign national must obtain a study permit before he or she can enter Canada to study.
[18] Essentially, the applicant's position amounts to arguing that the officer made several reviewable errors, by drawing capricious and perverse conclusions. In particular, he maintained that the visa officer ignored several points of evidence submitted in support of his application and erred in the interpretation which she made of several others.
[19] In this regard, the applicant argued first that the officer erred in interpreting various points relating to his studies. He challenged the interpretation of the various factors relating to his scholastic failures, in that the officer did not consider that he had redone three courses successfully and was studying economics only in order to please his father. Further, the applicant considered that the officer erred unfavourably interpreting his high rate of absenteeism: he said he presented evidence that his absences resulted from lateness and discontinuance of a course. The applicant maintained that the officer erred in concluding he should have made greater progress as a student after spending over three years in Canada. Finally, the applicant also suggested that the officer erred in interpreting his convalescence, arguing that she did not take into account the physician's letter explaining the sequelae of the accident.
[20] The applicant further maintained that the officer erred in concluding that he had shown he was unable to comply with legal conditions imposed on him, by remaining in Canada without authorization for a considerable period of time. He submitted that he presented evidence of his having forgotten to renew his visa and the fact that he was in a fortuitous situation, since the new paragraph 221(a) of the Regulations came into effect providing that a new visa application could not be filed within six months of failure to renew the visa.
[21] Lastly, the applicant objected to the officer's conclusion indicating that she was not satisfied that the applicant would leave Canada when the period authorized for his stay ended. He argued that the Air France letter which he filed indicating that employment opportunities might be awaiting him in the Ivory Coast, and the fact that his sister had obtained a study permit, favoured the opposite findings. The applicant said that in his view the officer had made no effort to determine the strength of his links to his native country (Zhang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1885 (T.D.) (QL)).
[22] The respondent's position amounts to arguing that the officer properly took into account all the evidence available to her before making her decision. Consequently, in the respondent's submission, her conclusions were not patently unreasonable. It was possible for the officer to conclude that the applicant did not necessarily intend to enter Canada to pursue his studies and would probably not leave Canada when his stay ended. The respondent argued that the applicant had not shown that the evidence the officer took into account was not relevant or that she acted in good faith or contrary to procedural fairness.
[23] To begin with, I feel that the conclusions drawn by the officer regarding the courses the applicant failed and his high rate of absenteeism are not patently unreasonable, based on the information contained in the transcripts and other documents supplied by the applicant. I do not think it can be said that it was unreasonable for the officer not to accept his explanations regarding the slow progress in his academic career. The record indicates that he spent three years in Canada without making significant progress in this regard. I do not regard the officer's decision as capricious: it was based on documents in the record and the assessment she made of them was not patently unreasonable.
[24] Secondly, I cannot accept the applicant's argument that the officer's conclusions regarding the training search conducted by the applicant were biased. He challenged her conclusion from this "intensive" training search that he might wish to remain in Canada and work there. The applicant argued that a conclusion based on a lack of evidence is a reviewable error (see the judgments of the Federal Court of Appeal in Kimbudi v. Canada (Minister of Citizenship and Immigration), [1982] F.C.J. No. 8 (QL), Sharma v. Canada (Minister of Citizenship and Immigration), [1984] F.C.J. No. 47 (QL), Abarajithan v. Canada (Minister of Citizenship and Immigration), [1992] F.C.J. No. 54 (QL), and Todorov v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 216 (QL)).
[25] According to the rule laid down in Wong (Litigation Guardian) v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1049 (F.C.A.) (QL), the officer may examine the applicant's long-term objective. That objective is a relevant point which carries some weight, in view of the evidence as a whole on whether a study permit will be granted. I cannot conclude that the officer erred by considering this question, and I feel that her decision was not patently unreasonable. The documents indicated that the applicant had a high rate of absenteeism from courses, but was actively seeking training. Thus, it follows that we cannot say this finding by the officer was based on a lack of evidence.
[26] Finally, in my view the officer's conclusions were based on the evidence in the record. The officer was entitled to make this assessment. The risk that study permit applicants will not leave Canada once the period of their stay ends is a very important factor to be considered, since it is the legal test which must be applied. In so doing, I cannot find that the officer arrived at this conclusion on any arbitrary basis, in a biased or even in an patently unreasonable manner. In short, in my view the evidence in the record, considered reasonably, could support the officer's determinations: her assessment of the facts was not patently unreasonable.
[27] For all these reasons, I feel that the conclusions drawn at by the visa officer are not unreasonable and do not require this Court's intervention. Consequently, I dismiss the application for judicial review.
[28] The applicant is allowed seven days from the date of these reasons to submit one or more questions for certification, with written submissions. The respondent will have seven days from receipt of the applicant's submissions to reply.
"Max M. Teitelbaum"
Judge
OTTAWA, ONTARIO
January 17, 2005
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10482-03
STYLE OF CAUSE: BETHOUO FELICIANO EYMARD BONI v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 3, 2004
REASONS FOR ORDER: Teitelbaum J.
DATED: January 17, 2005
APPEARANCES:
Jean-Michel Montbriand FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-Michel Montbriand FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Attorney General of Canada
Montréal, Quebec