Dhillon v. Canada (Minister of Citizenship and Immigration), 2009 FC 614

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: June 04, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 614;(2009), 347 F.T.R. 24 (FC)

Dhillon v. Can. (M.C.I.) (2009), 347 F.T.R. 24 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. JN.014

Iqbal Singh Dhillon (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5210-08; 2009 FC 614)

Indexed As: Dhillon v. Canada (Minister of Citizenship and Immigration)

Federal Court

Shore, J.

June 11, 2009.

Summary:

Dhillon, a citizen of India, applied for a first temporary resident visa in order to visit his family and commemorate his wife's death. He requested to remain in Canada for one month. His request was denied because he had no travel history and had failed to establish sufficient economic or family ties with his country. The visa officer was also not satisfied that Dhillon would leave Canada after the expiry of his visa. Dhillon did not contest the decision, but filed a second application, which was also rejected on the same grounds. Dhillon sought leave to apply for judicial review.

The Federal Court dismissed the application. Dhillon failed to meet the test for the granting of leave. The material filed did not raise an arguable issue of law upon which the proposed application might succeed, nor did it show that he had a fairly arguable case or that there was a serious question to be determined.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See second Aliens - Topic 1353 ].

Aliens - Topic 25

Definitions and general principles - Immigration manuals, guidelines etc. - [See second and third Aliens - Topic 1353 ].

Aliens - Topic 1353

Admission - Visitors - Visitor's visa - Duty of officer (incl. duty of fairness) - In the context of a request for leave to apply for judicial review, the applicant claimed that the visa officer's reasons provided for the refusal of his application for a temporary resident visa were insufficient - The Federal Court held that the issue was "irrelevant" - First, the applicant admitted having received "the written decision and reasons" with respect to the visa officer's decision and never requested to receive the reasons, pursuant to rule 9 of the Federal Courts Immigration and Refugee Protection Rules - Second, the letter sent to the applicant constituted sufficient reasons in that it clearly established on what grounds his request was rejected - Third, "strictly out of good faith" and even though the Crown had no obligation to provide him with anything more than the reasons already sent to him, the Crown filed the "computer assisted immigration processing system (CAIPS) notes"- See paragraphs 23 to 28.

Aliens - Topic 1353

Admission - Visitors - Visitor's visa - Duty of officer (incl. duty of fairness) - An unsuccessful applicant for a temporary resident visa claimed that the visa officer should have conducted an interview to alert him of the officer's concerns and to allow him a chance to provide explanations - The Federal Court did not agree with the assertion that the words "upon an examination" in s. 179 of the Immigration and Refugee Protection Regulations meant that an interview was to be conducted - "It is trite law that a Visa Officer has no obligation to interview an applicant and that said applicant has no legitimate expectation of having an interview" - More importantly, s. 14 of the Guideline OP 11-Temporary residents, "states that a Visa Officer should never proceed with an interview 'if it is evident through a review of the paper application that the applicant is ineligible and additional information would not alter a refusal decision'" - The officer's concerns with respect to the applicant's sufficient family and economic ties with his country emanated from the applicant's own evidence - See paragraphs 29 to 35.

Aliens - Topic 1353

Admission - Visitors - Visitor's visa - Duty of officer (incl. duty of fairness) - A visa officer concluded that an applicant for a temporary resident visa would not leave Canada at the end of the stay and denied the application - The applicant argued that the officer's conclusion was unreasonable because it contravened the presumption of good faith - The Federal Court held that the officer was entitled to reach the decision - The onus was on the applicant to establish, on the balance of probabilities, that he would leave Canada at the end of the stay, and he did not meet his burden of proof - The officer's role, under the Immigration and Refugee Protection Act, was to prevent a person from arriving in Canada if that person had not satisfied the officer that he or she would leave Canada at the end of the stay - Under s. 11(1) of the Act, an applicant must satisfy an officer that he or she has complied with the requirements of the Act and the Regulations - When evaluating an application, s. 179 of the Regulations required that the officer be satisfied that the applicant would leave Canada at the expiry of the visa - As indicated in s. 5.2 of Guideline OP 11-Temporary residents, if the officer was not satisfied, the officer must refrain from issuing a temporary resident visa - Also, s. 20(1)(b) and 22(1) of the Act specifically required that the analysis be made - See paragraphs 36 to 46.

Aliens - Topic 1353.1

Admission - Visitors - Visitor's visa - Judicial review (incl. standard of review) - The applicant's request for a temporary resident visa was denied - The visa officer concluded that the applicant would not leave Canada once his visa expired because he had no travel history and had failed to prove sufficient economic and family ties with his country - The applicant challenged the visa officer's factual assessment of his application - The Federal Court affirmed that the applicable standard of review was that of reasonableness - As for the applicant's claim that the visa officer breached his duty to act fairly by not proceeding with an interview, the standard of correctness applied - In the result, the court held that the applicant failed to demonstrate any reviewable error in the visa officer's decision, and denied his request for leave to apply for judicial review - See paragraphs 19 to 22.

Aliens - Topic 4063

Practice - Judicial review and appeals - Leave to apply for judicial review or to commence other proceedings - Dhillon, a citizen of India, applied for a first temporary resident visa in order to visit his family and to commemorate his wife's death - He requested to remain in Canada for one month - His request was denied because he had no travel history and had failed to establish sufficient economic or family ties with his country - The visa officer was also not satisfied that Dhillon would leave Canada after the expiry of his visa - Dhillon did not contest the decision, but filed a second application, which was also rejected on the same grounds - Dhillon requested leave to apply for judicial review - The Federal Court dismissed the application - Dhillon failed to meet the test for the granting of leave - The material filed did not raise an arguable issue of law upon which the proposed application might succeed, nor did it show that Dhillon had a fairly arguable case or that there was a serious question to be determined - See paragraph 47.

Aliens - Topic 4063

Practice - Judicial review and appeals - Leave to apply for judicial review or to commence other proceedings - A visa officer denied the applicant's request for a temporary resident visa - The applicant, in support of his request for leave to apply for judicial review, filed an affidavit from his son, but no affidavit from the applicant himself - Further, the exhibits to the son's affidavit were not properly identified by the commissioner of oaths - The Federal Court stated that the "important irregularity" was in itself sufficient to dismiss the application for leave - The application for leave did not conform with the legislation and the Federal Courts Immigration and Refugee Protection Rules - Section 10(2) of the Rules required the applicant to perfect an application for leave by filing an affidavit since he was the person who had personal knowledge of the decision-making process - Under s. 10(2)(d), the affidavit was an integral part of the applications - "It is trite law that an Applicant's affidavit is at the core of an Application for Leave" - Therefore, the application should be dismissed, or, if not dismissed, then no probative value should be given to the affidavit - In the end result, the court dismissed the application - See paragraphs 4 to 10.

Aliens - Topic 4521

Evidence - Affidavits - General - [See second Aliens - Topic 4063 ].

Cases Noticed:

Qin v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 554; 116 A.C.W.S.(3d) 100; 2002 FCT 815, refd to. [para. 1].

Moldevenau v. Canada (Minister of Citizenship and Immigration) (1999), 235 N.R. 192; 1 Imm. L.R.(3d) 105 (F.C.A.), refd to. [para. 6].

Muntean v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 12; 31 Imm. L.R.(2d) 18 (T.D.), refd to. [para. 7].

Metodieva v. Ministre de l'Emploi et de l'Immigration (1991), 132 N.R. 38; 28 A.C.W.S.(3d) 326 (F.C.A.), refd to. [para. 9].

Liu v. Canada (Minister of Citizenship and Immigration) (2003), 231 F.T.R. 148; 2003 FCT 375, refd to. [para. 10].

Velinova v. Canada (Minister of Citizenship and Immigration) (2008), 324 F.T.R. 180; 2008 FC 268, refd to. [para. 10].

Li v. Canada (Minister of Citizenship and Immigration) (2008), 337 F.T.R. 100; 2008 FC 1284, refd to. [para. 19].

Bondoc v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 605; 170 A.C.W.S.(3d) 173; 2008 FC 842, refd to. [para. 19].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 22].

Liu v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 595; 151 A.C.W.S.(3d) 101; 2006 FC 1025, refd to. [para. 30].

Ali (M.) v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1; 79 A.C.W.S.(3d) 140 (T.D.), refd to. [para. 30].

Statutes Noticed:

Federal Courts Immigration and Refugee Protection Rules - see Immigration and Refugee Protection Act Regulations (Can.).

Immigration and Refugee Protection Act Regulations (Can.), Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, sect. 10(1), sect. 10(2) [para. 7]; sect. 10(2)(d) [para. 8].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002/227, sect. 179 [para. 39].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 11(1) [para. 38]; sect. 20(1)(b), sect. 22(1) [para. 40].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Authors and Works Noticed:

Waldman, Lorne, Immigration Law and Practice (2nd Ed. 2005), vol. 2, s. 14.27 [para. 37].

Counsel:

Jean-François Bertrand, for the applicant;

Sylviane Roy and Émilie Tremblay, for the respondent.

Solicitors of Record:

Bertrand, Deslauriers, Montreal, Quebec, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard in Montreal, Quebec, on June 4, 2009, before Shore, J., of the Federal Court, who delivered the following reasons for judgment and judgment on June 11, 2009.