Date: 20220322

Docket: IMM-6780-20

Citation: 2022 FC 391

Ottawa, Ontario, March 22, 2022

PRESENT: The Honourable Mr. Justice Pentney

BETWEEN:

MUHAMMAD UMAIR NAEEM

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

[1] The Applicant, Muhammad Umair Naeem, is seeking judicial review of the decision of the Visa Officer denying him a study permit to come to Canada. He claims that the decision is unreasonable because it failed to take into account his detailed explanation for wanting to study in Canada, and some of the Officer’s findings are directly contradicted by the evidence.

[2] For the reasons that follow, I find that the Officer’s decision is unreasonable because it failed to take into account key information provided by the Applicant to explain his proposed course of study and the financial resources available to him. The application for judicial review will therefore be granted.

I. Background

[3] The Applicant submitted his student visa application on December 1, 2019, based on his admission to the Electrical Engineering Technical-Industrial Diploma program at the Loyalist College International Centre. His written submissions noted that his previous application for a student visa had been rejected because the officer had not been satisfied that the Applicant would leave at the end of his visit based on the purpose of his visit and his limited employment prospects in Pakistan. He had sought judicial review of that decision, which was resolved on consent, and the Applicant was given the opportunity to submit further information and his application was reconsidered.

[4] The Applicant retained counsel, and made supplementary submissions to bolster his earlier application. He had previously provided an explanation for pursuing the program at Loyalist College as well as financial information showing the funds available to him and proof of payment of the first tuition installment. In order to address the concerns raised by the first officer, the Applicant submitted a Study Plan. The most salient points from that, for the purposes of this application for judicial review, include the following:

• He graduated with a diploma in Electrical Technology in 2018 and had worked in the field since then, but he “decided to continue to specialize in industrial electrical engineering, with a focus on programmable logic control systems for advanced automation and robotics” ;
• He had researched comparable programs in Pakistan, but discovered that he already had the most advanced college diploma that was available, and the schools used old technology and equipment; he also indicated that the curriculum at these schools is generally viewed as outdated by managers in Pakistan;
• Living and studying in Canada would enable him to improve his English skills;
• His manager had offered him a promotion to a managerial position with more than double his current salary if he obtained the diploma from the Canadian program;
• He also explained his ties to Pakistan, including that both his parents and his immediate family lived there, as well as his lifelong friends. He indicated that he had a job lined up for his return, at a higher level and salary.

[5] On November 11, 2020, the Visa Officer refused the Applicant’s study permit application. The decision letter indicates that the Officer was not satisfied that he would leave Canada at the end of his stay based on the purpose of his visit and his personal assets and financial status. The Officer’s reasons are elaborated upon in the Global Case Management System (GCMS) notes, which refer to the Applicant’s diploma in Electrical Technology and his employment as an Associate Engineer. The Officer’s two main reasons for denying the application are then explained, beginning with doubts about the course of study, followed by a negative assessment of the financial information.

[6] On the Applicant’s proposed course of study, the Officer finds that he gave a limited explanation for why he chose it “apart from wanting to get practical knowledge.” The Officer notes that the Applicant is already gaining practical knowledge by working in the field, and finds that he failed to demonstrate “what specific practical knowledge this additional diploma would provide him, given his past education and current employment.” The notes then state that the Officer was not satisfied that the proposed course of study “follows the natural or normal progression” because the Applicant “intends to study in an equal or lesser field than what [he] has already accomplished.”

[7] Turning to the financial information, the Officer states that the Applicant’s submissions show that his parents have limited funds, and that although he was to be supported by an uncle in Canada, the information showed that the uncle’s income was $38,000 for 2018, and $39,727 for 2019. The Officer accorded less weight to the uncle’s promise of financial support because limited information was provided “on the uncle’s financial commitments and number of dependents.” Based on this, the Officer was not satisfied that the Applicant had demonstrated that he had sufficient funds to support himself while he completed his studies.

[8] Based on this analysis, the Officer refused the Applicant’s application for a study permit. This is the decision that the Applicant challenges in this proceeding.

II. Issues

[9] The only issue is whether the Officer’s decision is reasonable. This is the standard of review that applies, in accordance with Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65 [Vavilov].

[10] Under the Vavilov framework, a reviewing court “is to review the reasons given by the administrative decision maker and determine whether the decision is based on an internally coherent chain of reasoning and is justified in light of the relevant legal and factual constraints” (Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 at para 2 [Canada Post]). The burden is on the applicant to satisfy the Court “that any shortcomings or flaws relied on… are sufficiently central or significant to render the decision unreasonable” (Vavilov at para 100, cited with approval in Canada Post at para 33).

[11] In the recent decision Ocran v Canada (Citizenship and Immigration), 2022 FC 175, my colleague Justice Little relied on the following description of reasonableness review in the context of a visa officer’s decision in Lingepo v Canada (Citzenship and Immigration), 2021 FC 552 (per Justice Roussel), at paragraph 13:

While it is not necessary to have exhaustive reasons for the decision to be reasonable given the enormous pressure on visa officers to produce a large volume of decisions each day, the decision must still be based on an internally coherent and rational chain of analysis and be justified in relation to the facts and law that constrain the decision maker ([Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]] at para 85). It must also bear ‘the hallmarks of reasonableness – justification, transparency and intelligibility” (Vavilov at para 99).

III. Analysis

[12] This case turns on the question of whether the Officer’s reasons meet the Vavilov standard, as it is applied to review the decisions of visa officers. In particular, the question is whether the Officer’s decision is justified, transparent and intelligible in regard to the assessment of the Applicant’s proposed course of study and the financial resources available to him.

[13] The Respondent argues that the Applicant’s submissions amount to a mere disagreement with the Officer’s weighing of the relevant factors, citing Hashem v Canada (Citizenship and Immigration), 2020 FC 41 [Hashem]. That case confirmed that an officer is presumed to have reviewed all of the materials, and especially in the study permit context an officer is not required to explicitly refer to all of the evidence. The Respondent reminds the Court that a less stringent standard of justification is appropriate in light of the high volume of applications for student visas, citing Hajieva v Canada (Citizenship and Immigration), 2020 FC 71 [Hajieva].

[14] For the reasons that follow, I find that the Officer’s decision falls short, even with the latitude that is due to the decision of a visa officer considering a study permit, as set out inHajieva. I fully accept that the context for decision making is a relevant consideration and that the Officer did not have to refer to all of the evidence provided by the Applicant, as confirmed in Hashem.

[15] In this case, however, the decision does not demonstrate that the Officer took into account key aspects of the Applicant’s submissions, and leaves the Court guessing as to whether or how this information was considered. That is unreasonable.

[16] The first major difficulty relates to the Officer’s finding that the Applicant had given “limited explanation in his study plan as to why he intends to return to school in a similar field for a similar program, apart from wanting to get practical knowledge.” This is countered by the lengthy and detailed explanation offered by the Applicant, including: (a) the Loyalist program offered up-to-date and hands-on training on matters that were valued by employers in Pakistan, specifically training on “programmable logic controllers to coordinate automation”; (b) that similar programs using cutting-edge technology and techniques are not available in Pakistan; (c) his employer had offered him a managerial position at more than double his current salary; and (d) studying in Canada would enable him to improve his English.

[17] Perhaps the Officer had some reason to doubt the Applicant’s submissions, either regarding the nature of the educational opportunities in Pakistan or at the Loyalist program. Perhaps the Officer doubted that a promotion and higher salary had actually been promised to the Applicant (there is no evidence from the employer that confirms the offer). None of this is explained in the decision, and it is simply not possible to reconcile the Officer’s conclusion that the Applicant had “failed to demonstrate what specific practical knowledge this additional diploma would provide him” with the details set out in the Applicant’s Study Plan.

[18] The Officer’s conclusion on this point is not justifiable in light of the record. Without an even cursory explanation as to how the Applicant’s submissions fell short, the decision cannot stand.

[19] In addition, my conclusion is bolstered by the Officer’s failure to mention key elements of the financial information provided by the Applicant.

[20] The Officer’s analysis of the Applicant’s financial capacity focuses on his father’s situation as well as the promise of his uncle to provide financial support. Two major problems emerge however: the complete absence of any reference to the Applicant’s own financial situation, and the failure to take account of the other evidence. As noted earlier, the Applicant had already shown that he had paid half of the first year tuition for his program. This meant that the Officer had to assess whether he had the financial capacity to pay the second installment, in the amount of $8,500, plus approximately $10,000 for living expenses, based on information set out in the Respondent’s Guidance Document on Study Permit Applications [the Guidance Document].

[21] The information before the Officer included bank records from the Applicant showing a bank balance of over $18,000 CDN, as well as proof of his father’s savings of over $10,000 CDN. In addition, although the Officer noted that the uncle’s income in 2019 was relatively modest, there is no mention of the more recent information showing that the uncle had obtained a full-time job as a Master Electrician, earning over $46.00 per hour, and thus a substantially higher income than he earned previously.

[22] All of this information is consistent with the conclusion that the Applicant had substantial funds available to meet his financial requirements for his first year of study, and that is what is required by the Guidance Document. The Officer’s failure to mention this, or to explain whether or why it was discounted, is not reasonable.

[23] As the parties agreed, each case will turn on its particular facts. I find that the Officer’s decision is unreasonable because it fails to demonstrate whether or how the Officer grappled with key evidence on essential points that relate to the two key foundations for the decision. Because of this, the Officer’s decision is not justified “in relation to the constellation of law and facts that are relevant to the decision” (Vavilov, para 105).

[24] The decision will therefore be quashed, and the matter remitted back for reconsideration by a different Visa Officer.

[25] There is no question of general importance for certification.

JUDGMENT in IMM-6780-20

THIS COURT’S JUDGMENT is that:

1. The Application for judicial review is granted.

2. The Visa Officer’s decision is quashed, and the matter is remitted back for reconsideration by a different decision-maker.

3. There is no question of general importance for certification.

“William F. Pentney”

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

IMM-6780-20

STYLE OF CAUSE:

MUHAMMAD UMAIR NAEEM v THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:

BY VIDEOCONFERENCE FROM TORONTO AND oTTAWA, ONTARIO

DATE OF HEARING:

MARCH 14, 2022

JUDGMENT AND REASONS:

PENTNEY J.

DATED:

MARCH 22, 2022

APPEARANCES:

Chantale Desloges

For The Applicant

James Todd

For The Respondent

SOLICITORS OF RECORD:

Desloges Law Group P.C. Barristers and Solicitors Toronto, Ontario

For The Applicant

Attorney General of Canada Toronto, Ontario

For The Respondent