Ottawa, Ontario, February 24, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision by a visa officer (officer), dated July 15, 2005, denying the application for a study permit of Hawa Epse Maiga Bocar (applicant).
[2] Section 11 of the IRPA provides that a student visa is required to enter Canada for the purpose of studying:
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11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
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11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la présente loi.
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(2) The officer may not issue a visa or other document to a foreign national whose sponsor does not meet the sponsorship requirements of this Act.
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(2) Ils ne peuvent être délivrés à l’étranger dont le répondant ne se conforme pas aux exigences applicables au parrainage.
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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, |
20. (1) L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver : |
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(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 |
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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(2) A foreign national referred to in subsection 9(1) must also establish, to become a permanent resident, that they hold a document issued by the province indicating that the competent authority of the province is of the opinion that the foreign national complies with the province’s selection criteria.
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(2) L’étranger visé au paragraphe 9(1) est tenu en outre, pour devenir résident permanent, de prouver qu’il détient le document délivré par la province en cause attestant que l’autorité compétente de celle-ci est d’avis qu’il répond à ses critères de sélection.
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30. (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.
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30. (1) L’étranger ne peut exercer un emploi au Canada ou y étudier que sous le régime de la présente loi.
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. . . |
[...] |
[3] This visa requirement is found elsewhere in the IRPA (see section 30) and in the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) (see sections 9, 212, 213 of the IRPR). The following sections and subsections of the IRPR establish the criteria for granting a study permit:
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216. (1) Subject to subsections (2) and (3), an officer shall issue a study permit to a foreign national if, following an examination, it is established that the foreign national |
216. (1) Sous réserve des paragraphes (2) et (3), l’agent délivre un permis d’études à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis : |
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(a) applied for it in accordance with this Part; |
a) l’étranger a demandé un permis d’études conformément à la présente partie; |
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(b) will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9; |
b) il quittera le Canada à la fin de la période de séjour qui lui est applicable au titre de la section 2 de la partie 9; |
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(c) meets the requirements of this Part; and |
c) il remplit les exigences prévues à la présente partie; |
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(d) meets the requirements of section 30.
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d) il satisfait aux exigences prévues à l’article 30 [visite médicale].
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220. An officer shall not issue a study permit to a foreign national, other than one described in paragraph 215(1)(d) or (e), unless they have sufficient and available financial resources, without working in Canada, to |
220. À l’exception des personnes visées aux sous-alinéas 215(1)d) ou e), l’agent ne délivre pas de permis d’études à l’étranger à moins que celui-ci ne dispose, sans qu’il lui soit nécessaire d’exercer un emploi au Canada, de ressources financières suffisantes pour : |
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(a) pay the tuition fees for the course or program of studies that they intend to pursue; |
a) acquitter les frais de scolarité des cours qu’il a l’intention de suivre; |
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(b) maintain themself and any family members who are accompanying them during their proposed period of study; and |
b) subvenir à ses propres besoins et à ceux des membres de sa famille qui l’accompagnent durant ses études; |
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(c) pay the costs of transporting themself and the family members referred to in paragraph (b) to and from Canada.
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c) acquitter les frais de transport pour lui-même et les membres de sa famille visés à l’alinéa b) pour venir au Canada et en repartir. |
[4] The appropriate standard of review for a decision by a visa officer depends essentially on the kind of issue addressed. In Sadiki Ouafae v. Minister of Citizenship and Immigration, 2005 FC 459, de Montigny J. writes, at paragraphs 18 to 20:
Opinion on the appropriate standard of review for decisions by visa officers is divided and appears to have spawned seemingly contradictory decisions. In some cases, reasonableness simpliciter was the chosen standard . . . In other decisions, patent unreasonableness was chosen instead . . .
And yet, on closer inspection, these decisions are not irreconcilable. The reason for the different choices is essentially that the nature of the decision under review by this Court depends on the context. Thus it goes without saying that the appropriate standard of review for a discretionary decision by a visa officer assessing a prospective immigrant’s occupational experience is patent unreasonableness. Where the visa officer’s decision is based on an assessment of the facts, this Court will not intervene unless it can be shown that the decision is based on an erroneous finding of fact made in a perverse or capricious manner.
However, it is not the same for a decision by a visa officer involving an application of general principles under an Act or Regulations to specific circumstances. Where the decision is based on a question of mixed law and fact, the Court will show less deference and seek to ensure that the decision is quite simply reasonable.
[5] This approach was confirmed in the recent case Boni v. Canada (Minister of Citizenship and Immigration), 2006 FCA 68, at paragraphs 7 and 8. As the issues addressed by the visa officer in this matter are questions of fact, the appropriate standard is that of patent unreasonableness. The Court must not intervene unless it can be established that the decision is based on an erroneous finding of fact made in a perverse or capricious manner.
[6] The officer’s decision is based on the following grounds:
- She was not satisfied that the applicant has the financial means to pay her tuition and her lodging during her stay in Canada, or to return to her country of habitual residence;
- She was not satisfied that the applicant would leave Canada at the end of the period authorized for her stay. Specifically, the officer writes that she was not persuaded that the ties with her country of habitual residence were sufficiently strong to ensure her return after her stay in Canada;
- The officer is of the opinion that the applicant did not establish that her academic profile suited the studies that she contemplated in Canada.
[7] Regarding the applicant’s financial resources, the record shows that the applicant gave the officer incomplete evidence, such that it was not unreasonable for her to find as she did. There are three bank statements in the record. The first did not have a letterhead, the second had no information regarding the evolution of the account over the five months preceding the application for a study permit and the third was too recent to be able to appreciate the true state of the applicant’s finances. Also, the records of employment submitted do not suggest that the applicant or her husband have steady income. It was not unreasonable, either, for the officer to express reservations regarding the statements of employment and the land titles filed, since these documents, whether by reason of their form or content, did not establish the applicant’s ability to fulfill her financial obligations in Canada within the meaning of section 220 of the IRPR.
[8] With respect to the applicant’s ties with her country of habitual residence, it was not unreasonable for the officer to find as she did, since one of the sons of her husband’s family is himself in Canada, at the same university where the applicant wants to study, and since the applicant has a co-wife in Mali who could very well take care of the children in the event that she were to decide to stay in Canada.
[9] I do not believe that there are grounds to intervene with respect to the appropriateness of the applicant’s course of study (regarding the legality of this requirement, see the recent decision in Boni v. Canada (Minister of Citizenship and Immigration), 2005 FC 31, [2005] F.C.J. No. 43, at paragraph 25). In fact, the applicant has an employment history that has little to do with her study plan. However, it would be appropriate to amend the standard question form so that the visa officer can determine as much about the academic profile as the professional profile.
[10] For these reasons, the application for judicial review is dismissed. The parties were invited to propose questions for certification but no question was submitted.
JUDGMENT
THE COURT ORDERS THAT:
- The application for judicial review be dismissed and no question is certified.
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4524-05
STYLE OF CAUSE: BOCAR HAWA EPSE MAIGA v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 22, 2006
REASONS FOR JUDGMENT: MR. JUSTICE SIMON NOËL
DATE OF REASONS: February 24, 2006
APPEARANCES:
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GÉRALD TCHAKOUMI
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FOR THE APPLICANT |
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CAROLINE DOYON
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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GÉRALD TCHAKOUMI MONTRÉAL, QUEBEC |
FOR THE APPLICANT |
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JUSTICE CANADA MONTRÉAL, QUEBEC |
FOR THE RESPONDENT |