Date: 20000616
Docket: IMM-3120-99
BETWEEN:
MANISH GUPTA AND PRACHI GUPTA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of a Counsellor (Immigration), (the "Visa Officer") dated the 25th of May, 1999 wherein the Visa Officer refused the application of the applicants for visitors visas that would have entitled them, together with their infant child, to come to Canada to visit the parents and siblings of the female applicant, Prachi Gupta. She and the male applicant, Manish Gupta, are husband and wife and citizens of India. The substance of the Visa Officer"s written decision was in the following terms:
| After careful and thorough consideration of all aspects of your application and the supporting information provided, your application has been refused. In the opinion of the visa officer, you have not satisfied the requirements of Section 2(1) of the Immigration Act, 1976, in that you have failed to demonstrate that you are seeking admission to Canada for a temporary purpose, because: |
| (/) You appear to have insufficient ties to your country of citizenship and/or residence to ensure your return at the end of your authorized stay in Canada; |
| ... |
The decision under review is the second such decision with respect to the applicants made within a very short space of time, the applicants having reapplied for visitors visas, on the basis of supplementary information, when they were advised their first application was refused.
BACKGROUND
[2] As indicated, the applicants are husband and wife. They have one young child. Approximately two years prior to the applicants" application for visitors visas, the female applicant"s parents and siblings moved from India to Canada.
[3] The CAIPS notes that form part of the tribunal record before the Court provide a useful summary of the information that was before the Visa Officer and of the basis for his decision to refuse to issue visitors visas. The CAIPS notes include a summary of the interview and decision regarding the applicants" first application as well as a summary of the process on the second application, leading to the decision here under review, including a summary of the interview conducted by a Program Assistant at the Canadian High Commission in New Delhi, that Program Assistant"s recommendation to the Visa Officer and a notation of the adoption of that recommendation by the Visa Officer. On the applicants" first application, the CAIPS notes indicate that, in the course of the interview, the male applicant indicated that he and his wife and their child wished to go to Canada "for tourism" and "to visit my in-laws and my wife"s brother and sister". The male applicant indicated that he was in the construction business. He provided some indication of his financial situation in India. The notes go on to indicate that the applicants" proposed stay in Canada would be for twenty-five (25) days in the case of the male applicant and for two (2) months in the case of the female applicant.
[4] The notes with respect to the first application conclude with the following notation:
| Subj travelling with wife and son. Going to visit wife"s parents and her two sibs. Though subj has sufficient funds not convinced that wife has enough ties to return to India. Rec. refusal. |
The CAIPS notes continue with an entry apparently made by the Visa Officer who rejected the first application. The notation is in the following terms:
| Strong ties to CDA. Taking entire family along. No previous travel. PPT issued 01 May 1999. |
| Not convinced re: bona fide. Refused. |
The CAIPS notes with respect to the second application, resulting in the decision here under review, focus on additional evidence provided by the applicants regarding their financial circumstances in India, property held by them in India and some of the circumstances surrounding the male applicant"s employment in the family construction business including a notation that he is one of three directors of the business. The Program Assistant"s summary and recommendation are in the following terms:
| They were not refused on funds. They were refused on strong ties CDA. Seems high risk in taking the entire family. They may seek to remain there permanently. Recommend for refusal. |
The Visa Officer"s brief notation is to the following effect:
| Refused BFS. |
Apparently BFS stands for "bona fides".
[5] At least two significant omissions are apparent on the face of the CAIPS notes: first, they contain no reflection on the extensive family of the male applicant in India and of the relationship between the applicants and those family members; and second, there is no analysis whatsoever of the ties to India created by the male applicant"s employment with the family construction business.
[6] Only the second of these two considerations is commented on in the Visa Officer"s affidavit filed on this application for judicial review. In paragraph 7 of his affidavit, the Visa Officer attests in part:
| The applicants produced property documents and proof of savings in a bank account not provided previously. These documents provided additional proof that the applicants have sufficient funds for the proposed trip although in this case, funds were not cited as a reason for refusal. The documents provided indicated the applicant alleged to be a successful businessman. However, the documents indicated an annual income of Rs. 1,15,391 or CAD $4, 048. Because the business is owned and operated principally by the applicant"s father, there would be no business loss risked if the applicants failed to return to India. |
In paragraph 11 of his affidavit, the Visa Officer attested:
| The assertion that the principal applicant is a very successful businessman is not supported by documentary evidence presented and referred to in paragraph 7 above. |
Nowhere on the face of the Visa Officer"s affidavit does he attest to any concern regarding family attachment by the applicants to the members of the male applicant"s family in India.
STANDARD OF REVIEW
[7] Counsel for the respondent urged that the standard of review of discretionary decisions of visa officers in matters such as this is patent unreasonableness. For this proposition, he relied on the decision of my colleague Mr. Justice Nadon in Benoit v. Canada (Minister of Citizenship and Immigration)1 where he had before him an application for judicial review of a decision denying an application for a visitors visa "...in order to visit [the applicant"s] daughter and make the acquaintance of his grand-daughter and son-in-law."
[8] In determining to reject the application for judicial review, Mr. Justice Nadon relied on the decision of former Associate Chief Justice Jerome in De La Cruz v. Minister of Employment and Immigration2 and on the following oft-quoted passage from Maple Lodge Farms Limited v. Government of Canada et al3:
| It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
[9] All of the foregoing preceded the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)4 where the Court dealt at length with, among other things, the standard of review of certain discretionary decisions in the immigration context. Shortly after the Baker decision, Mr. Justice Rothstein, sitting in his capacity as an ex-officio judge of the Trial Division of this Court, dealt with a discretionary decision of a Visa Officer, albeit not with respect to an application for a visitors visa, in Khairoodin v. Canada (Minister of Citizenship & Immigration)5. He wrote at paragraph 2 to 5:
| A preliminary matter is the standard of review. The respondent argued that the standard should be patent unreasonableness in this case because this is not an inland application for permanent residence, the consequence of which, if the application fails, is removal from Canada, a consequence more serious than merely denying entry to an applicant. In Baker v. Canada (Minister of Citizenship and Immigration), L"Heureux-Dubé J. determined that the standard of review with respect to decisions under subsection 114(2) of the Immigration Act , and Regulation 2.1, is reasonableness simpliciter. At paragraph 57 she commences: |
| I turn now to an application of the pragmatic and functional approach to determine the appropriate standard of review for decisions made under s. 114(2) and Regulation 2.1 and the factors affecting the determination of that standard outlined in Pushpanathan, supra. |
| The factors she considered in arriving at the reasonableness simpliciter standard of review were: absence of a privative clause; expertise of the decision maker; the purpose of subsection 114(2) and of the Immigration Act as a whole, that subsection 114(2) is an exempting provision and that the decision affected the rights and interests of an individual; and the highly discretionary nature of a humanitarian and compassionate decision. These are factors common to all such decisions. These considerations would suggest that humanitarian and compassionate applications under subsection 114(2) are subject to the reasonableness simpliciter standard of review in all cases. |
| On the other hand, a pragmatic and functional approach having regard to context would suggest that the seriousness of the matters at issue might have a bearing on the standard of review. The rejection of an inland humanitarian and compassionate application is more likely to be disruptive than the rejection of a humanitarian and compassionate application made from outside Canada is taken into account, there is some reasons to think that the standard of review in such cases might be higher than reasonableness simpliciter namely patent unreasonableness. |
| In view of the conclusion I reach in this case, that the visa officer"s decision meets the reasonableness test, I am able to proceed on the basis that the standard of review is reasonableness simpliciter . I leave for determination in a future case whether a higher standard of review in humanitarian and compassionate applications made from outside Canada might be appropriate. [citations omitted] |
[10] While the decision that is under review before me was not, strictly speaking, in respect of a humanitarian and compassionate application made from outside Canada, the facts that were before the decision-making officer in this matter had certain humanitarian and compassionate aspects. The applicants were seeking visas that would have allowed them and their young son to visit the female applicant"s parents and siblings, all of whom had immigrated to Canada some two years before the application for visitors visas was filed.
[11] Section 3 of the Immigration Act is instructive. The relevant portions of that Section read as follows:
3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need
...
(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad;
...
(e) to facilitate the entry of visitors into Canada for the purpose of fostering trade and commerce, tourism, cultural and scientific activities and international understanding;
... [emphasis added]
3. La politique canadienne d'immigration ainsi que les règles et règlements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, à promouvoir les intérêts du pays sur les plans intérieur et international et reconnaissent la nécessité:
...
c) de faciliter la réunion au Canada des citoyens canadiens et résidents permanents avec leurs proches parents de l'étranger;
...
e) de faciliter le séjour au Canada de visiteurs en vue de promouvoir le commerce, le tourisme, les activités scientifiques et culturelles ainsi que la compréhension internationale;
... [Je souligne]
Traditionally, paragraph 3(c) has been applied in circumstances of family reunification through immigration to Canada. However, I am satisfied that the wording of that paragraph is broad enough to encompass the reunion in Canada of Canadian citizens and permanent residents, such as the female applicant"s parents and siblings in this matter, with their close relatives from abroad, such as the female applicant, her husband the male applicant, and their son, through the vehicle of visitors visas issued to persons such as these applicants and their son. To interpret paragraph 3(c ) more narrowly would be to put the immigration objective reflected in paragraph 3(e) which is designed to facilitate economic, cultural and scientific objectives, as well as international understanding, on a higher plane than the facilitation of family visits. I am satisfied that such an interpretation would be inconsistent with the long standing humanitarian reputation associated with Canadian immigration policy and law.
[12] Against the foregoing considerations, and given the objective pursued by the applicants in this matter in seeking visitors visas to Canada, the decision here under review can reasonably be interpreted to be a "...humanitarian and compassionate application made from outside Canada..." in the sense referred to by Mr. Justice Rothstein and in respect of which he explicitly left open the possibility that a standard of review in such a matter might be reasonableness simpliciter .
[13] In Li Wei Hao v. Canada (Minister of the Citizenship and Immigration)6 , Madame Justice Reed reviewed the issue of standard of review in the context of judicial review of a visa officer"s decision refusing to issue the applicant a visa as a self-employed or entrepreneur immigrant. After citing two recent decisions in the Trial Division of this Court where, in her words, "Two of my colleagues have adopted the test of unreasonableness simpliciter as applicable to the review of a visa officer"s decision..."7, Madame Justice Reed wrote at paragraph [5]:
| The difference of opinion as to the appropriate standard of review [of visa officers" decisions] does not apply to questions of law, where the standard is one of correctness. Also, the appropriate standard is not usually a matter of debate in relation to questions of procedural fairness or procedural natural justice. Debate about the relevant standard of review relates to the review of the conclusions drawn by the decision-maker from the application of the relevant law to the facts of the case. |
After reviewing various factors identified in the Baker decision against the statutory framework and other elements of the case before her, Madame Justice Reed concluded at paragraph [9]:
| I am prepared to adopt the standard of unreasonableness simpliciter as applicable to the visa officer"s decision. |
[14] I am satisfied that a standard of reasonableness simpliciter or, in Madame Justice Reed"s terminology, unreasonableness simpliciter , is an appropriate standard of review for a decision of a visa officer, at least with respect to an application for a visitors visa where the objective is clearly and unequivocally to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad, albeit only for a temporary period. I am satisfied that no other conclusion would be consistent with the pragmatic and functional approach adopted by the Supreme Court of Canada in Baker. That is not to say that, where an application for a visitors visa is for another purpose that cannot be considered to be humanitarian or compassionate in nature the standard might be, or remain, patent unreasonableness. That is a determination for another day on different facts.
REVIEW AGAINST A STANDARD OF REASONABLENESS SIMPLICITER
[15] Against a standard of reasonableness simpliciter, was the decision of the Visa Officer that is here under review reasonably open to him based upon a comprehensive review of the materials that were before him?
[16] It is trite law that, in the absence of evidence to the contrary, a decision-maker should be presumed to have had regard to all of the material that was before him or her at the time the decision was made8. Here, there is evidence to the contrary. The record clearly discloses that evidence as to the male applicant"s extensive family in India was before the decision-maker. Neither the CAIPS notes, nor any other material that was before the Court discloses any basis on which the Visa Officer might reasonably have concluded that the applicants had stronger family ties to Canada than they had to India. Further, while it might reasonably have been open to the Visa Officer to discount the applicants" business and economic connections to India, those connections should reasonably have been evaluated in the context of the male applicant"s family connections and the totality weighed against the female applicant"s family connections in Canada which clearly were not supported by business or economic connections on the part of the applicants, taken together.
[17] In short then, against the standard of reasonableness simpliciter, while the decision of the Visa Officer that is here under review might well have been reasonably open to him, it was not open on the basis of the analysis disclosed in the CAIPS notes, the Visa Officer"s affidavit, and other material that was before the Court. By analogy, the following succinct statement from the reasons of the Federal Court of Appeal in Frimpong v. Canada (Minister of Employment and Immigration)9 summarizes the reviewable error in this matter:
| In my view, this is a case where it has been clearly shown that the [visa officer], in making [his] decision, has not had regard to the totality of the evidence properly before him and has thereby erred in law. [A reference to the "visa officer" has been substituted for a reference to "the majority Board"]. |
I would not characterize the reviewable error here as an error of law, but rather, to paraphrase the words of Madame Justice Reed quoted above, as an error in the conclusion drawn by the Visa Officer from the application of the relevant law to the facts of the case.
CONCLUSION
[18] For the foregoing reasons, this application for judicial review will be allowed, the decision of the Visa Officer that is under review will be set aside and the matter will be referred back for redetermination by a different visa officer. Apart from the guidance provided by these reasons, no directions, as urged by counsel by the applicant, will be provided.
CERTIFICATION OF A QUESTION
[19] The respondent shall have fifteen (15) days from the date of the issuance of these reasons to make representations on certification of a question, having first served them on counsel for the applicant. Counsel for the applicant shall have fifteen (15) days thereafter within which to serve and file responding representations. The respondent may within three (3) working days of the service on him of the applicant"s response, file any reply.
COSTS
[20] There will be no Order as to costs.
(Sgd.) "Frederick E. Gibson"
J. F.C.C.
Vancouver, British Columbia
June 16, 2000
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: IMM-3120-99 |
| STYLE OF CAUSE: Manish Gupta and Prachi Gupta |
v.
MCI
| PLACE OF HEARING: Toronto, Ontario |
| DATE OF HEARING: May 15, 2000 |
| REASONS FOR ORDER OF GIBSON, J. |
| DATED: June 16, 2000 |
APPEARANCES:
| Mr. T. Viresh Fernando For the Applicants |
| Mr. Marcel Larouche For the Respondent |
SOLICITORS OF RECORD:
T. Viresh Fernando
Barrister and Solicitor
| Toronto, Ontario For the Applicants |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
1 (1997), 46 Imm. L.R. (2) 160 (F.C.T.D.).
5 (1999), 2 Imm. L.R. (3d) 275 (F.C.T.D.).
6 [2000] F.C.J. No. 296 (Q.L.)(F.C.T.D.).
7 Zheng v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 31 (Q.L.)(F.C.T.D.) and Lu v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1907 (Q.L.)(F.C.T.D.).
8 See, for example Williams v. Canada (Minister of Citizenship and Immigration) [1997] 2 F.C. 646 at 664. (C.A.).