Date: 20240709

Docket: IMM-10657-23

Citation: 2024 FC 1079

Ottawa, Ontario, July 9, 2024

PRESENT: The Honourable Justice Fuhrer

JUDGMENT AND REASONS

I. Overview

[1] The Applicant Ethan Samuel Christian is a 10-year old citizen of India. His parents, also citizens of India, both obtained valid status in Canada. His mother, who also is his litigation guardian, is in Canada on a study permit, and she is pursuing a masters of business administration while working part-time. His father was approved for a spousal open work permit but delayed travel to Canada when their son’s application for a study permit was refused.

[2] The primary reason for the refusal is that the Applicant’s “assets and financial situation are insufficient to support the stated purpose of travel.” The Global Case Management System [GCMS] notes do nothing to illuminate the visa officer’s reasons for refusing the study permit. Instead, notwithstanding the Respondent’s arguments to the contrary, they highlight the illogicality of the determination and lack of a rational chain of analysis, essentially untethered from his parents’ situation. Please see Annex “A” below for relevant legislative provisions.

[3] I have no hesitation in finding that the decision is unreasonable and will be set aside, with the matter remitted to a different visa officer for redetermination.

II. Analysis

[4] I find that the Applicant has met his burden of showing that the refusal of his study permit application is unreasonable, in that it lacks the hallmarks of justification, transparency and intelligibility: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 99-100.

[5] Contrary to the Respondent’s submissions, this is not a case involving a minor seeking to study in Canada who will be accompanied by his parent(s), if approved; rather, it involves a minor seeking to live with his parents who have status in Canada and intending to continue his primary school education in their care while here. For this reason, I find the following cases on which the Respondent relies distinguishable because they involve the former scenario as opposed to the latter: Zibadel v Canada (Citizenship and Immigration), 2023 FC 285; Farnia v Canada (Citizenship and Immigration), 2022 FC 511.

[6] The officer’s reasons, in my view, are unresponsive to the Applicant’s specific situation: Patel v Canada (Citizenship and Immigration), 2020 FC 77 at para 17. Notwithstanding that the GCMS notes acknowledge the Applicant is a minor whose parents have status in Canada, they speak in terms of the young child’s establishment and ability to cover tuition and living costs. In other words, they treat him as though he were an adult applicant, like his mother for example.

[7] The evidence of record, however, indicates that this child will reside with his mother in an apartment she already rents, and will have few or minimal expenses, including any tuition, given his intention to attend elementary school. Even if tuition were $200, as the Respondent states but the GCMS notes do not (although I note this amount is stated in the Applicant’s study permit application), this is a nominal amount.

[8] Further, at the hearing of this matter, the Respondent argued that the Applicant has not met his onus of demonstrating, to the officer’s satisfaction, the availability of $10,000 to cover living expenses that is required, according to the guidance of Immigration, Refugees and Citizenship Canada [IRCC] entitled “Study permit: Get the right documents,” which is in evidence in this matter.

[9] As I understand the Respondent’s argument, the Applicant’s financial situation is tied to that of his parents and there is no specific allocation of the mother’s savings of approximately $21,000 or her part-time income of about $37,000 toward the Applicant’s required $10,000 for living expenses, nor the $200 for tuition. None of the Respondent’s points, however, can be found in the GCMS notes and, therefore, represent unacceptable bolstering, in my view.

[10] I find that, in essence, the officer’s reasons regarding tuition and living expenses are contradicted by the evidence, which was not mentioned and presumably overlooked by the officer: Aghaalikhani v Canada (Citizenship and Immigration), 2019 FC 1080 at para 24.

[11] I also find it difficult to discern the logic behind the officer’s statement to the effect that they are “not satisfied that the applicant will adhere to the terms and conditions imposed as a temporary resident.” On its face, it appears to suggest that the Applicant would ignore the terms of a study permit and remain in Canada after his parents returned to India.

[12] Both of his parents, however, have status in Canada. IRCC already has determined that they can afford their living expenses, will leave Canada at the end of their authorized stay, and will adhere to the terms and conditions imposed on them as temporary residents. In my view, it is speculative to assume that the Applicant, as a dependent minor child, would not accompany his parents when they leave.

[13] As this Court previously has held, “[a] finding that the applicant could not be trusted to comply with Canadian law is a serious matter” that requires intelligible and transparent justification: Cervjakova v Canada (Citizenship and Immigration), 2018 FC 1052 at para 12.

III. Conclusion

[14] For the above reasons, the judicial review application will be granted. The August 14, 2023 decision refusing the Applicant’s study permit application will be set aside, with the matter remitted to a different visa officer for redetermination.

[15] Neither party proposed a serious question of general importance for certification. I find that none arises in the circumstances.

JUDGMENT in IMM-10657-23

THIS COURT’S JUDGMENT is that:

1. The Applicant’s application for judicial review is granted.

2. The August 14, 2023 decision of a visa officer of Immigration, Refugees, and Citizenship Canada refusing the Applicant’s study permit application is set aside.

3. The matter will be remitted to a different visa officer for redetermination.

4. There is no question for certification.

"Janet M. Fuhrer"

Annex “A”: Relevant Provisions

Immigration and Refugee Protection Regulations, SOR/2002-227.

Règlement sur l’immigration et la protection des réfugiés, DORS/2002-227.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: