02/14/2024
What you must prove for temporary applications and is A.I. ‘UNREASONABLE’?
On January 18, 2024, Justice Henry Brown, in the Federal Court dismissed the immigration appeal of RACHIT KUMAR against the visa officer in the UAE for a study permit. He had been refused for years.
The Officer was not satisfied he would leave Canada at the end of his study period based on his purpose of visit, his immigration status, and employment possibility in his country of residence UAE and his country of citizenship being India.
He was a temporary resident in the UAE with his wife and daughter working, since 2015.
He has BA in Architecture and an Ma in Architecture. He is a professional architect and worked for various employers in both India and the UAE as a Project Architect and Design Architect, with some periods of unemployment.
He applied in 2022 for a study permit to pursue an MBA with a specialization in Sustainable Innovation at the University of Victoria in BC. The Officer said he already had the same education he was seeking.
He said he had limited understanding of finance and management and has been unable to adequately contribute to some projects at work in this way. The Visa Officer noted he had plenty of relevant experience in architectural projects and management.
He supplied details of his establishment and family ties in India and the UAE, he had no economic or family ties in Canada.
His residence in the UAE was temporary, as was that of his wife and child. His residency would expire in 2023. The record before this Court does not show if it was renewed. His residency in UAE was conditional upon work there. The refusal letter states:
-I am not satisfied that you will leave Canada
- The purpose of your visit to Canada is not consistent with a temporary stay given the details you have provided in your application.
- Your immigration status outside your country of nationality or habitual residence.
-You have limited employment possibilities in your country of residence.
- I am not satisfied an MBA would change their career prospects. The applicant’s immigration status in their country of residence is temporary, which reduces their ties to that country.
Although the applicant’s family and extended family reside in UAE, their status is still temporary.
These concerns have not been overcome.
Based on the applicant’s limited employment prospects in their country, I have accorded less weight to their ties to their country, I have noted there have been several recent periods of unemployment in the applicant work history.
The file was processed with the assistance of Chinook 3+.
The standard of review of a study permit visa decision is REASONABLENESS.
A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.
A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with respectful attention and seeking to understand the reasoning process followed by the decision maker to arrive at the conclusion.
The reasons should be read holistically and contextually to understand the basis on which a decision was made.
A reviewing court should consider whether the decision is reasonable.
What is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review.
The reviewing court must ask whether the decision bears the hallmarks of reasonableness – justification, transparency, and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision.
Under reasonableness review, the burden is on the party challenging the decision to show that it is unreasonable.
The challenging party must satisfy the court that any shortcomings or flaws relied on are sufficiently central or significant to render the decision unreasonable.
The role of this Court is not to reweigh and reassess the evidence unless there are exceptional circumstances.
The Supreme Court of Canada instructs that absent exceptional circumstances, a reviewing court will not interfere with its factual findings.
BUT in conducting reasonableness review, the reviewing court, can interfere only where fundamental errors in fact-finding occurred.
It is also the law that reasons such as these are not to be assessed against a standard of perfection. That the reasons do not include all the arguments, statutory provisions, jurisprudence, or other details the reviewing judge would have preferred is not on its own a basis to set aside the decision.
In addition, reviewing courts cannot expect ADMINISTRATIVE DECISION MAKERS to respond to every argument or line of possible analysis or to make an explicit finding on each constituent element, however subordinate, leading to its conclusion.
The Applicant has the onus to establish his or her case to the satisfaction of the OFFICER.
VISA applications do not raise SUBSTANTIVE rights.
FOREIGN NATIONALS have no unqualified right to enter Canada.
The LEVEL of PROCEDURAL FAIRNESS IS LOW and DOES NOT require that applicants be granted an opportunity to address the officer’s concerns.
This Court owes GREAT DEFERENCE to the Officer’s assessment of the evidence. ** meaning the upper court highly respects the administrative officer’s BELIEF about the evidence ***
Every year, Canada receives more than one million 1,000,000 applications -- thousands are not successful. Judicial review must be assessed together with the officer’s notes and the underlying record.
The law is set that the need to give reasons be minimal and need not be extensive.
The Officer is deemed to have considered all the evidence.
The Officer had no obligation to enumerate all the evidence relied upon to reach the conclusion, though the record demonstrates the applicant has extensive experience as listed on his CV of both project management and leadership skills, among others.
In this connection, the officer was not satisfied that the applicant would not have enhanced career prospects after pursuing the MBA, given this evidence in the record including the fact he already had the degree he wanted to pursue in Canada.
This conclusion is transparent, intelligible, and justified on the record the applicant put before the officer.
With respect to the applicant’s employment prospects, the officer’s decision notes the concern of the applicant only having temporary residence status in the UAE, and how they would be given up pursuing further education.
The officer noted the applicant had periods of unemployment in his work history, and that DUE TO ECONOMIC CONDITIONS in the UAE, he was not convinced the applicant’s employment prospects would be better off from obtaining an MBA.
These are matters the Court should and will give deference to the expertise of the Officer.
The applicant DID NOT PROVIDE any evidence from his current or other employer concerning his re-employment let alone promotion on returning to the UAE.
The applicant will not have status in the UAE after his studies.
It was REASONABLE and open to the Officer to conclude the applicant’s employment prospects in his country of RESIDENCE *** meaning he could not return to the UAE ***
The Applicant had not been in India since 2015.
The Applicant argues the Officer did not consider his ties to INDIA.
The visa officer wrote, “Although the applicant’s family and extended family reside in UAE, their status is still temporary. Based on the applicant’s limited employment prospects in their country of residence/citizenship, I have accorded less weight to their ties to their country of residence/citizenship”. So the Visa Officer did consider India and believed the applicant would not return to India.
The applicant argued there is suspicion regarding his motive for studying in Canada and claims the officer should have given him an opportunity to answer all the concerns.
In Abbas v Canada (Citizenship and Immigration), 2022 FC 378: The reference to a bona fide concern in the decision must not be conflated with a credibility concern.
It is simply part of the task of visa officers who must be satisfied, pursuant to paragraph 216(1)(b) of the IRPR, that an applicant will leave Canada following completion of his or her studies.
The use of the words bona fide is not determinative.
In some cases, it can amount to a veiled credibility finding; in other cases, it does not engage issues of credibility.
It all depends on the context and on the analysis conducted by the decision maker--it was a failure, on the part of Mr. Abbas, to meet the applicable requirements and to demonstrate, on a balance of probabilities, that he would leave Canada at the end of the period authorized for his stay, as set out in subsection 216(1) of the IRPR.
The case law clearly distinguishes between adverse findings of credibility and adverse findings regarding the insufficiency of the evidence.
Where the officer raises doubts about the credibility, truthfulness or authenticity of the evidence, the officer MUST provide the opportunity to resolve CREDIBILITY issues”
If the decision is based on the INSUFFICIENCY OF EVIDENCE OR failure to meet the statutory requirements, THE VISA OFFICER HAS NO OBLIGATION TO INFORM.
The judge found no merit that the GCMS notes reference the assistance of Chinook 3+
As to artificial intelligence, the decision was made by a Visa Officer and not by software.
Whether a decision is reasonable or unreasonable will determine if it is upheld or set aside, whether artificial intelligence was used.
The use of artificial intelligence is irrelevant given that an officer made the decision in question and judicial review deals with the procedural fairness and or reasonableness of the decision.
THE DECISION is in accordance with CONSTRAINING LAW. The appeal is dismissed.
*** The applicant DID NOT show with evidence that he would return to INDIA and had good REASON to do so after studies. JUST FAMILY there is insufficient as we have learnt. He did not realize that the UAE would fail as his go back country to allow him to fortify India as his fallback country ****
