Date: 20030415
Docket: IMM-515-02
Citation: 2003 FCT 433
Montréal, Quebec, the 15th day of April, 2003
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
ALEXANDER NEFEDOV
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Alexander Nefedov (the "applicant") applies for judicial review of a negative decision by a visa officer, Jean-Marc Arsenault (the "officer"). On January 2, 2002, Mr. Arsenault refused the application for entry as a worker under the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
ISSUE
[2] Is this decision patently unreasonable?
[3] For the following reasons the application for judicial review is dismissed.
FACTUAL CONTEXT
[4] The applicant is a citizen of Dominica and a permanent resident of Russia. He requests entry to Canada in order to work with a non-governmental organization ("NGO") known under the name "International Informatization Academy". He attaches to his application the letter from the organization offering him employment for an anticipated duration of one year. The Department of Human Resources Development Canada ("HRDC") validated his offer of employment. The applicant's daughter was already in Canada as a student.
IMPUGNED DECISION
[5] The decision reads as follows (page 6, applicant's record):
This refers to your application for temporary entry to Canada on an employment authorization.
The Immigration Act allows for the issuance of an employment authorization and visa only after the applicant has satisfied an immigration officer that to do so would not be contrary to the Act or the Regulations. In making a determination as to whether an employment authorization and visa may be issued, the immigration officer must take several factors into consideration. The decision to refuse an application for an employment authorization and visa is not taken lightly, but an immigration officer is obliged to refuse to issue an employment authorization if any of these requirements are not met.
In your particular case, I have noted that you are a permanent resident of Russia and that you have been refused permanent immigration to Canada in 1998 and that you have another permanent immigration application currently in process in Buffalo. I am not satisfied that you have sufficient ties to your country of permanent residence and that you are seeking entry to Canada for a temporary purpose. I am not satisfied that you will leave Canada if your permanent immigration application is refused. Consequently your application for an employment authorization to Canada is refused.
Thank you for the interest you have shown in Canada. [Underlining in the original]
[6] The officer refused this request, concluding that the applicant did not have sufficient ties to his country and that he was seeking more than temporary entry to Canada. The officer also expressed some doubt that the applicant would leave Canada at the end of his stay here.
[7] When the applicant made his application for entry, he was already visiting Canada (panel record, page 8). In 1998, he was refused an application for permanent residence. The applicant's daughter was also in Canada, as a student. In the Computer Assisted Immigration Processing System (CAIPS) notes, the officer observes that the applicant is awaiting a decision on an application he made in the United States (Buffalo) to become a resident in that country. This fact was not mentioned in the questionnaire completed by the applicant.
PARTIES' SUBMISSIONS
Applicant
Reasons for the decision
[8] The officer's reasons are not sufficiently explicit to enable the applicant to exercise his remedies in regard to this decision. The officer does not explain how the applicant's ties to his country of permanent residence are insufficient. As a result, the applicant submits that this decision should be set aside since it is in breach of the rules of natural justice.
[9] The applicant further submits that the decision is patently unreasonable since the objective considerations established by the applicant in his record were not considered. He answered honestly the questions he had to fill in and he was under no obligation to disclose his application for permanent residence in the United States. Furthermore, the form prepared by the applicant did not contain any question in this regard.
[10] The applicant says there is nothing in the Act prohibiting a person from requesting both a temporary residence permit and a permanent residence elsewhere at the same time.
[11] The applicant was offered a temporary job in Canada since he had the necessary qualifications, owing to his experience in his country of origin. The HRDC had even validated this employment offer. The applicant has consistently complied with the Act and the regulations and does not agree with the decision, and in particular the officer's conclusion that he would not leave Canada when his residence permit had expired. The decision is therefore speculative, based solely on subjective and irrelevant considerations. In support of his submissions, he cites, inter alia, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Wong (Guardian) v. Canada (Minister of Citizenship and Immigration) (1997), 134 F.T.R. 288 (F.C.T.D.).
Respondent
[12] The respondent draws the court's attention to the role of the visa officer, the particular situation of the applicant, and the criteria for this Court's intervention.
[13] He adds that the officer does not criticize the applicant for failing to report his application for residence in the United States but says he was entitled to consider this factor as relevant.
[14] He does not agree that the decision lacks reasons, for on its face it was evident that the applicant knew why his application had been rejected. No injustice was committed in this case and the Court should not intervene in this decision, which is discretionary.
[15] A number of decisions are cited by the respondent: Song v. Canada (Minister of Citizenship and Immigration), 2002 FCT 288, [2002] F.C.J. No. 385 (F.C.T.D.) (QL), Benoît v. Canada (Minister of Citizenship and Immigration) (1997), 46 Imm. L.R. (2d) 160 (F.C.T.D.), De la Cruz v. Canada (Minister of Citizenship and Immigration) (1989), 26 F.T.R. 285 (F.C.T.D.) and Wong (Litigation Guardian) v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377 (F.C.A.).
ANALYSIS
The Act
[16] The term "visitor" is defined in subsection 2(1) of the Act:
| ... "visitor" means a person who is lawfully in Canada, or seeks to come into Canada, for a temporary purpose, other than a person who is |
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[...] « visiteur » Personne qui, à titre temporaire, se trouve légalement au Canada ou cherche à y entrer, à l'exclusion : |
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| (a) a Canadian citizen, (b) a permanent resident, (c) a person in possession of a permit, [...]. |
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a) des citoyens canadiens; b) des résidents permanents; c) des titulaires de permis; [...]. |
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In the same subsection, an "immigrant" is defined as a person "who seeks landing". Landing, or "établissement", which is also referred to in French as "droit d'établissement", is defined as "lawful permission to establish permanent residence in Canada".
[17] Subsections 9(1.2) and 9(4) of the Act state:
| (1.2) A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant. |
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(1.2) La personne qui demande un visa de visiteur doit convaincre l'agent des visas qu'elle n'est pas un immigrant. |
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| (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations. [emphasis added] |
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(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements. [je souligne] |
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Subsection 9(5) does not apply in this case.
[18] In Wong, supra, Mr. Justice Létourneau of the Court of Appeal states in paragraph 13 that the visa officer is entitled to examine the totality of the circumstances, including the long term goal of a visa applicant:
We firmly believe the visa officer is entitled, even at the moment of the first application for such visa, to examine the totality of the circumstances, including the long term goal of the applicant. Such goal is a relevant consideration, but not necessarily determinative, to be weighed with all the other facts and factors in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act.
[19] In De la Cruz, supra, Mr. Justice Jerome states in paragraph 9 that the intention of a person requesting entry may be considered by the visa officers before making their decision:
Pursuant to SS. 2(1) and 8 of the Act, the onus is on the visitor to show that his entry to Canada would not be contrary to the Act or Regulations. This is reinforced by the fact that he will be presumed to be an immigrant seeking permanent resident status, and this intent must be countered by evidence of a temporary purpose. In such a situation, the intent of the applicant is properly subject to examination by visa officers and factors which may show non-temporary purpose will be taken into consideration. Viewed in this context, it was not improper for the visa officer to refuse the visitor visas on the basis of an outstanding application for permanent residence in Canada. [Emphasis added]
[20] In Lu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 440, my colleague Madam Justice Tremblay-Lamer speaks in paragraph 6 about the tests for intervention of this Court in a case that is similar to this one:
The issuance of a student authorization is a discretionary decision and the scope of judicial review is very limited. In De La Cruz v. Canada (M.E.I.) (1989), 26 F.T.R. 285 (F.C.T.D.) at 287, the Court held that in order for it to intervene, "[...] 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". [Emphasis added]
[21] Consulting the latter decisions, I think it was completely appropriate for the visa officer to consider the refusal to issue a visa in 1998 and the fact that the applicant was awaiting a decision on his application for permanent residence in the United States. I am satisfied that the impugned decision is sufficiently sustained and does not do the applicant any injustice. In my opinion, there is no error of law in this case. The principles of natural justice have been adhered to. The officer in this instance made his decision on relevant facts and the conclusion he reached is reasonable.
[22] I do not intend to intervene, therefore. Consequently, the application for judicial review will be dismissed.
[23] The parties have not proposed the certification of a serious question of general importance. Nor is there any reason to certify a question.
ORDER
THE COURT ORDERS:
1. The application for judicial review is dismissed.
2. There is no serious question of general importance to certify.
"Michel Beaudry"
Judge
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET NO: IMM-515-02
STYLE: ALEXANDER NEFEDOV v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 13, 2003
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: April 15, 2003
APPEARANCES:
Jacques Beauchemin FOR THE APPLICANT
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALARIE, LEGAULT, BEAUCHEMIN, FOR THE APPLICANT
PAQUIN, JOBIN, BRISSON & PHILPOT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec