On June 11, 2021, the Honourable Mr. Justice McHaffie rendered a decision in the case of Carlson Tachot Menkem Afuah v The Minister of Citizenship and Immigration (2021 FC 596). The Applicant was represented at the hearing by Peter Salerno from Green and Spiegel LLP.
Facts
The Applicant is a citizen of Cameroon. He had applied for a study permit to pursue a hospitality program at Toronto’s Seneca College, specializing in hotel and restaurant services management. Substantial evidence was provided regarding his educational background and how completing the program at Seneca College would advance his long-term career goals in Cameroon.
A visa officer had rejected the Applicant’s application for a study permit, explaining that he was not satisfied the Applicant would leave Canada at the end of his stay, citing travel history, family ties in Canada and Cameroon, purpose of visit, and limited employment prospects in Cameroon as the reasons for refusal. The officer wrote that he was not satisfied that his plan of study was reasonable in relation to his previous experiences and locally available alternatives. However, the officer did not elaborate on why these were considered negative factors in reaching his decision.
Ruling
In his decision, Justice McHaffie acknowledged the high volume of visa applications that must be processed in Canadian visa offices and the fact that, because of this administrative context, the court recognises that the requirements of fairness, and the need to give reasons, are typically minimal in this type of decision.
However, Justice McHaffie also clarified that every decision must, where reasons are required, meet the minimal standards of justification, transparency, and intelligibility, as noted in the Supreme Court of Canada’s decision in Canada v. Vavilov .
Justice McHaffie, at paragraph 14, emphasised the guiding principle from Vavilov that “the more central an argument and the more important the evidence put forward on an issue, the greater the requirement for a visa officer to address that argument and evidence in their reasons.” In the case at hand, the conclusions of the visa officer directly contradicted the evidence, especially regarding the central issue of the existence of ‘locally available alternatives.’ The Applicant had, in his study permit application, explicitly addressed why local programs in Cameroon would not provide the same advantages as a North American education. Justice McHaffie found that the officer’s reasons, which did not include an explanation as to why pursuing a different career was unreasonable nor elaborate on the bald assertion of the existence of sufficient ‘locally available alternatives’, therefore did not meet the Vavilov standard of reasonableness.
The decision confirms at paragraph 15 that, where an applicant puts forward both explanations and supporting evidence as to why they are pursuing a Canadian program rather than a locally available alternative, a cursory rejection without at least some additional explanation from a visa officer will be seen as unreasonable.
The officer also cited the Applicant’s lack travel history as a factor of concern. Justice McHaffie explained, at paragraph 17, that previous case law has established that “a prior history of leaving and returning to the country of residence may be a positive factor; other circumstances may be a neutral or negative factor.” In the case at hand, the Officer did not explain why the Applicant’s lack of travel history was of concern. Justice McHaffie explained that this conclusion, in light of the lack of explanation, did not meet the reasonableness standard required by Vavilov.
Further, in concluding that the Applicant’s family ties in Canada and in Cameroon was a negative factor in his decision, the officer ignored the fact that the Applicant has no family in Canada and many family members in Cameroon. The officer’s lack of explanation in the face of contradictory evidence again failed to meet the reasonableness standard.
Importantly, Justice McHaffie, at paragraph 17, reiterated the endurance of the Vavilov requirements in the context of visa applications: “Even where the obligation to give reasons is minimal, the Court cannot be left to speculate as to the reasons for a decision, or attempt to fill in those reasons on behalf of a decision-maker where they are not clear from the decision read in light of the record.”
Ultimately, the positive decision confirms that applicants should supplement their temporary residence applications with an abundance of evidence to help ensure that their applications are not summarily dismissed. Those interested in obtaining temporary residence in Canada – to study, work, or visit – may schedule a consultation with Green and Spiegel LLP to ensure that their applications are as strong as possible.
