EDITOR’S NOTE: This document is subject to editorial revision before its reproduction in final form in the Federal Courts Reports.
Citizenship and Immigration
Status in Canada
Persons with Temporary Status
Application for judicial review of visa officer’s decision to refuse applicant’s application for study permit — Applicant applied for study permit after being offered admission to Mohawk College in Hamilton, Ontario — Visa officer’s notes as recorded in Global Case Management System (GCMS) finding that applicant’s financial situation not demonstrating that funds would be sufficient or available — Officer not satisfied that applicant would depart Canada at end of period authorized for their stay — Applicant submitting officer’s reasons not coherent, decision not justified in light of factual, legal constraints — Also submitting, inter alia, that officer acted ultra vires by inquiring into, making decision based on reasonableness of expense of proposed program of study — Asking for order directing respondent to issue study permit together with all other authorizations necessary for him to arrive in Canada, commence program of study — Main issue whether Court should exercise discretion to grant “directed verdict” or mandamus — Applicant established that decision refusing his study permit application unreasonable — GCMS notes not articulating transparent, intelligible basis justifying officer’s decision to refuse application — Officer not explaining how findings justified in light of any specific evidence or information in application — Determinative issue was reasonableness, officer’s errors constituted sufficiently serious shortcoming to warrant setting aside decision — Since this was third assessment of applicant’s study permit application, other issues raised by applicant also addressed — Based on record, reasons for refusal in GCMS notes, officer did not breach procedural fairness or act in a way that would give rise to legitimate expectation regarding process — Findings supporting officer’s refusal not transparent, intelligible or justified in applicant’s case, but applicant did not established that findings were ultra vires — Applicant did not establish that decision refusing his study permit application engaged his Canadian Charter of Rights and Freedoms, ss. 7 or 2(b) rights — Did not establish that respondent should be directed to grant study permit — Exceptional remedy of directed verdict rarely granted where issue in dispute factual in nature — Applicant’s circumstances distinguishable from Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55 — However, respondent ordered to assess applicant’s application in expedited manner to meet offer of admission deadline — Delay in applicant’s matter (in study permit application process, court proceeding) largely due to respondent’s conduct — Expedited decision required in interests of justice — Costs awarded to applicant — Pursuant to Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, r. 22, no costs awarded unless so ordered by Court for special reasons — Here, several factors constituting special reasons for awarding costs, including two prior refusals needed to be set aside, contributing to delay jeopardizing applicant’s offer of admission; delays occasioned by respondent; absence of reasonable explanation for refusing offers to settle — In this case, respondent’s actions occasioned delay, expense, but those actions not constituting misconduct — Matter remitted to different decision maker for reassessment — Application allowed.
Aniekwe v. Canada (Citizenship and Immigration) (IMM-9558-22, 2023 FC 1477, Pallotta J., reasons for judgment dated November 6, 2023, 18 pp.)