MINHAJ BEGUM RAJ GAFFUR Applicant v. THE MINISTER OF, 2016 FC 338

Date: 20160321 Docket: IMM-3081-15 Citation: 2016 FC 338 Ottawa, Ontario, March 21, 2016 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:MINHAJ BEGUM RAJ GAFFURApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Ms. Minhaj Begum Raj Gaffur (the “Applicant”) seeks judicial review of the decision of a Visa Officer (the “Officer”) whodetermined that the Applicant did not meet the requirements for a Canadian study visa. [2] The facts set out below are taken from the Certified Tribunal Record. [3] The Applicant is a citizen of India. She was born on September 2, 1983.

She married on November 23, 2005. She gave birthto her first child on August 28, 2006 and to her second child on December 2, 2009. [4] The Applicant attended a college in India from June 2000 to April 2005 and obtained a Bachelor’s Degree in Englishliterature. She obtained another degree, that is a Bachelor’s Degree in Education, in December 2012. [5] The Applicant was employed as an assistant restaurant manager in India from September 2014 until December 2014.

Hercurrent application for a study permit is dated December 1, 2014 and she applied for the permit so she could attend Fleming College inPeterborough, Ontario to pursue a program in Hotel and Restaurant Management for the period December 1, 2015 until April 30, 2016. [6] The Officer refused the application on the grounds that the Applicant did not meet the requirements of the Immigration andRefugee Protection Act, S.C. 2001 c. 27 (the “Act”) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (the“Regulations”).

The refusal, set out in a letter dated June 11, 2015, referred to “Other Reasons”, specifically that the Applicant’s“proposed studies are not reasonable in light of your qualifications, previous studies, gap in studies, employment, or your future prospectsand plans”. [7] The Global Case Management System (“GCMS”) notes record the following entry, dated June 11, 2015 about theApplicant’s application: … I have reviewed submissions regarding the grounds for the previous refusal: however they do not overcome my concerns regardingthe proposed studies.

Based on the information before me, given the gap in studies and employment as well as the strong family ties toCanada I am not satisfied that the proposed studies are reasonable giving the PA’s educational and working background. The PA hasfailed to establish that he is a bona fide student and temporary resident who would leave Canada at the end of the period authorized forstay as per R21691)(

b) of IRPA Refused. [8] The decision in question, involving the assessment of the evidence against the statutory criteria, including the criteria set outin the Regulations, raises a question of mixed fact and law and is reviewable on the standard of reasonableness; see the decision in Lin v.Canada (Minister of Citizenship and Immigration) (2004), 2004 FC 96 , 245 F.T.R. 103 at paragraphs 20-21. [9] The standard of reasonableness requires that a decision be transparent, justifiable and intelligible; see the decision inDunsmuir v.

New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at paragraph 47. [10] The Certified Tribunal Record does not contain any information about the grounds for the previous refusal. In thosecircumstances, in my opinion, the observations of the Officer reproduced above do not meet the standard of reasonableness. [11] The Minister of Citizenship and Immigration (the “Respondent”) argues that the decision is reasonable but in any event, theCourt should not exercise its discretion to hear this application since it is moot.

The Respondent submits that the time period for whichthe Applicant wanted the study permit has now expired; that is the basis of his mootness argument. [12] I disagree with these submissions and referred to the decision in Chhetri v. Canada (Citizenship and Immigration) (2011), 2 Imm. L.R. (4th) 326 at paragraph 4 where Justice Rennie, as he then was, said the following: In my view, the existing applications are not moot. The second refusal did not insulate the first decision from review. There remains alive controversy between the parties as to adequacy of the reasons for rejecting the application.

There remains a lis between the partiesand the fact is that this decision could have practical effect. The motion was therefore dismissed and the application heard on the merits. [13] I agree with his reasoning and adopt the same in this case. The Applicant’s application for judicial review is not moot and theOfficer’s decision does not meet the legal standard of reasonableness. It follows that this application for judicial review is allowed, the

decision is set aside and the matter is referred to a different officer for redetermination. That Officer should have due regard for all the evidence available to the Respondent in connection with the Applicant’s application for a study permit. JUDGMENT THIS COURT’S JUDGMENT is that this application for judicial review is allowed, the decision is set aside and the matter is referred to a different officer for redetermination, no question for certification arising. "E.

Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3081-15 STYLE OF CAUSE: MINHAJ BEGUM RAJ GAFFUR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: March 10, 2016 JUDGMENT AND REASONS: HENEGHAN J. DATED: MARCH 21, 2016 APPEARANCES : Lev Abramovich For The Applicant Brad Bechard For The RESPONDENT SOLICITORS OF RECORD : Ali M. Amini Barrister & Solicitor Toronto, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Toronto, Ontario For The RESPONDENT