Last updated on February 26th, 2020
Last Updated on February 26, 2020 by Steven Meurrens
People applying to visit, study, or work in Canada have to show that they intend to be bona fide temporary residents that will leave the country once their visa / study permit / work permit has expired. This is pursuant to s. 179(b) of Canada’s Immigration and Refugee Protection Regulations, which states that:
179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national
(b) will leave Canada by the end of the period authorized for their stay under Division 2;
The following are examples of how IRPR s. 179 may be applied to individual applications. They are scenarios that IRCC provides visa officers for the purposes of training.Case Studies
As noted in the above training materials, in determining whether an applicant has met the s. 179 requirement, a visa officer must consider numerous factors, including financial and personal ties to the applicant’s country of origin, past immigration attempts, overstaying in other countries, and any criminal past. Indeed, anyone who has ever seen a temporary resident visa refusal is probably familiar with the following “check-list.”
Your Travel History
As the Federal Court noted in Momi v. Canada, 2013 FC 162:
While the applicant’s compliance with Australian immigration rules is not evidence directly related to the matter of complying with periods of authorization in Canada, it does indicate in my estimation that the applicant has respected immigration policy in the past, and there is no further evidence to the contrary.
As well, while previous travel history may be a good indicator as to the likelihood of compliance to immigration laws, an absence of travel is at best a neutral indicator, as the Federal Court found in Momi v Canada (Minister of Citizenship & Immigration), 2013 FC 162. and as was affirmed in Adom v. Canada (Citizenship & Immigration), 2019 FC 26.
Length of Proposed Stay
having a “permanent job” in Canada does not allow for an inference that the applicant will break the law and remain in this country past the expiry of the work permit. There is no evidence on the record that the applicant would have ties in Canada such that he would be tempted to stay for that reason alone. We should guard against connecting temporary residence and becoming a permanent resident (section 22 of the Act).
Your Immigration Status
The fact that the applicant seeks to obtain the appropriate visa from Canada because his immigration situation in Australia will become precarious would in my view militate in favour of considering the applicant as law abiding. As this Court has held in the past, previous immigration encounters are good indicators of an applicant’s likelihood of future compliance (see Calaunan v Canada (Minister of Citizenship and Immigration), 2011 FC 1494 at para 28 and Murai v Canada (Minister of Citizenship and Immigration), 2006 FC 186).
I find it difficult to understand how the fact that the applicant appears to have stayed in Australia since 2009 is sufficient to conclude that if he were awarded a temporary work permit, he would not return to India at its expiration. At best, not wishing to return to India following a stint in Australia by seeking to obtain a temporary work visa in Canada should be considered as neutral as to whether or not the applicant “will leave Canada by the end of the period authorized for their stay
I am struck by the following passage taken from the decision of Justice Mainville, then of this Court, inGu v Canada (Minister of Citizenship and Immigration), 2010 FC 522:
 Second, the other fact which the officer draws upon to conclude that the applicant will not leave Canada at the end of the study period is her continued presence in Canada since March 2002 with either work or study permits. This is unreasonable. A foreign national who has remained in Canada under validly issued work or study permits should not be penalized for having followed the immigration legislation of this country. The simple fact the applicant has legally remained in Canada cannot reasonably support a conclusion that she would choose to go “underground” or try to stay in Canada without authorization once her study permit expires.
Your Family Ties in Canada and in Your Country of Residence
The officer concluded the applicant had only weak family ties to Sri Lanka. As there is no elaboration on this finding, one can only assume the officer concluded the ties are weak due to only a single family member being in that country. However, to judge family ties solely based on the quantity of family members is to ignore the relevant factor of the strength of the child-parent bond (see Guo v Canada (Minister of Citizenship and Immigration), 2001 FCT 1353 at paragraph 15,  FCJ No 1851). The officer may have had legitimate reasons for doubting the strength of that bond in this case. The record is silent, making it very difficult for this Court to see this finding as reasonable.
While the family tie was only one part of the evidence considered by the officer on the issue of intention to leave Canada, it clearly was central to that determination and I cannot discern how the officer would have decided absent that finding.
The second issue concerns the Officer’s failure to consider the Applicant’s family ties in the Philippines in reaching the Decision. This is particularly egregious as the Officer claimed to be unsatisfied that the Applicant demonstrated strong socio-economic ties to that country whereas there was evidence on file that the Applicant’s wife and young child would remain in the Philippines during the Applicant’s studies in Canada. In failing to engage with these facts in any way, particularly in failing to assess whether the Applicant would return to his wife and son in the Philippines, the Officer overlooked some crucial facts in making his decision.
A similar decision was reached in Rodriguez Martinez v. Canada (Citizenship and Immigration), where Justice McHaffie ruled:
In the present case, the only aspect of the officer’s notes relevant to their conclusion that the Applicants’ lack “strong socio economic ties” with Cuba was the note “family life savings of 3k, family income of 300$ monthly.” This note contains no analysis of these factors or why they support a conclusion that the Applicants would not leave Canada: Patel at paras 21–22; Asong Alem v Canada (Citizenship and Immigration), 2010 FC 148 at paras 14–15. As the Respondent suggests, one might understand the note to express a concern regarding the family’s wealth, and thus their economic incentive to return to Cuba, although it would take a generous reading and a fair degree of inference to do so. Regardless, even with a generous reading, the officer’s reasons do not analyze, consider or refer to material evidence regarding the Applicants’ economic ties to Cuba (notably the fact that all three own real estate there), or any evidence regarding their social ties (notably close family members, including those who draw on their support). The evidence regarding their ties to and establishment in Cuba are supportive, though not determinative, of a finding that the family would return to Cuba to resume their life there following their visit to Canada.
Finally, if someone has lived in a country their whole life, it may be unreasonable for an officer to determine that their ties are weak. As the Federal Court noted in Jalili v. Canada (Citizenship and Immigration), 2018 FC 1267:
In my view, the Decision suffers from the difficulties addressed in that jurisprudence. The Decision turns significantly on the Officer’s conclusion that Ms. Jalili has weak financial and personal ties to Afghanistan. However, in relation to her personal ties, Ms. Jalili emphasizes that she has lived in Afghanistan throughout her life and currently lives with her two daughters and three grandchildren, for whom she has had responsibility as a caregiver for close to a decade, those children now being ages eight, six and two. Ms. Jalili’s role as her grandchildren’s caregiver is supported by the letter from her daughters submitted with her TRV application. Against that backdrop, it is difficult to understand the basis for the Officer’s conclusion that Ms. Jalili has weak personal ties to Afghanistan. This is not to say that the nature of her ties to Afghanistan mandated any particular result in her TRV application. However, as they point to a conclusion contrary to that of the Officer, the absence in the Decision of any reference to, or analysis of, the nature of Ms. Jalili’s family relationships and caregiver role in Afghanistan supports the inference that these details were overlooked.
Your Current Employment Situation
In Dhanoa v. Canada, for example, the Federal Court noted that:
The thought that [the applicant] would abandon his wife and children in order to take advantage of better socioeconomic opportunities here is distasteful. It is rather sanctimonious to suggest that our society is more of a draw for him than India, where he would be in the bosom of his family, simply because he would have 30 pieces of silver in his pocket. As per Timothy 6:10 “for the love of money is the root of all evil.”
In Cao v. Canada, a 27-year old citizen of the People’s Republic of China who was offered a job as a cook at a Chinese restaurant in Quebec. The visa officer refused his application as he was not satisfied that the applicant was a genuine visitor who would leave Canada upon the expiry of his work permit. The officer based this decision the applicant’s insufficient financial ties to China, his modest salary, and limited advancement opportunities in China. Justice Martineau found the Officer’s rejection on the basis of s. 179 of the IRPR to be completely unreasonable. He noted that the rejection of the work permit application because the applicant would make more money in Canada than in China relied on the very factor which would induce someone to come here temporarily in the first place as the main reason for keeping that person out.
In addressing financial ties it is important to note that if someone in an application is wealthier than the general population they should not assume that officers will know this. As the Federal Court of Canada noted in Anand v. Canada (Citizenship and Immigration), 2019 FC 372, comparative evidence must be put towards an officer.
Limited Employment Prospects
As the Federal Court noted in Ekpenyong v. Canada (Immigration, Refugees and Citizenship), 2019 FC 1245, it is unreasonable to state that someone has limited employment prospects if they are already employed without providing more information. As well, stating someone’s salary as a negative without providing an indication as to whether that salary is actually low for the area will be unreasonable. Finally, although the prospect of better job opportunities in Canada is a factor to consider, the fact that someone is coming from a country with a significantly lower standard of living than Canada should not preclude them from obtaining a visa.
Addressing Newfoundland v. Nurses
The Supreme Court of Canada decision in Newfoundland Nurses has greatly complicated matters. By getting rid of the “adequacy of reasons” test as a stand-alone ground for judicial review, the Supreme Court of Canada has in effect signalled to Citizenship and Immigration Canada that it can refuse decisions based on boilerplate, minimal reasons, knowing that reviewing judges must consider whether the decision was reasonable based on the record as a whole.
Justice Zinn has provided some guidance in how to approach such cases in Agidi v. Canada, 2013 FC 691, where he wrote:
The applicant in the written submissions argues that the officer breached the duty of fairness by failing to provide adequate reasons for his decision, and also that the decision is unreasonable. The respondent is quick to point out, correctly, that “adequacy of reasons” is no longer a stand-alone ground of judicial review, in light of the Supreme Court’s decision inNewfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland and Labrador Nurses’ Union] at para 14. I agree; however, the decision rendered must still be reasonable in terms of “the existence of justification, transparency and intelligibility within the decision-making process [and] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law:” Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
In the absence of any real reasons in the CTR as to why the officer reached his conclusion that the applicant had not satisfied him that the applicant would not leave Canada at the end of her intended three week stay, this decision is unreasonable and must be set aside. Although this Court should first look to supplement before subverting the officer’s reasons and may look to the record to do so (Newfoundland and Labrador Nurses’ Union, above, at para 12), a review of the record almost exclusively reveals factors – those canvassed immediately above – that strongly support the opposite conclusion to that reached by the officer; namely she has been invited by a Canadian friend to visit and holiday with her for three weeks (and the friend provides an affidavit to the effect), and she leaves behind in Nigeria a job, a husband, two minor children, and property. How on those facts can it reasonably be said that she has failed to establish on the balance of probabilities that she will leave Canada at the conclusion of her visit?
When submitting visa applications, it may be helpful to include a declaration from the applicant stating that he/she understands the nature of temporary entry, and that he/she will not overstay. As the Federal Court noted in Zhang v. Canada (Citizenship and Immigration), 2014 FC 499:
It is apparent that the visa officer has also failed to consider any other reasons raised by the applicant to support her claim that she would return to the PRC. For example, her study plan states that her fiancé lives in China, he owns his own business there and he has purchased an apartment in her name. The applicant’s declaration explains that her fiancé is not interested in living abroad but that her study “is also one part of the preparation for our future career; therefore I will not stay in Canada for long term” (see para VI of the declaration, Applicant’s Record [AR] at 28). The declaration also states that the applicant plans to have a family in China and to take care of her parents there and that she understands the repercussions of failing to leave Canada (at paras VII and IX, AR at 28-29). As stated in Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 941 at para 13 [Cao], “[t]he decision to submit the applicant’s declaration is not a banal gesture. The declaration is a clear statement that the applicant understand the consequences of overstaying his welcome in Canada, and for this reason, it will not happen.”
As well, the fact that a statement may be self serving does not mean that an officer can disregard it, as an applicant will necessarily produce evidence that is beneficial to their case. . This has been affirmed in several cases, including LOTM v Canada (Minister of Citizenship & Immigration), 2013 FC 957, at para.27-29, citing SMD v Canada (Minister of Citizenship & Immigration), 2010 FC 319, Ugalde v Canada (Minister of Public Safety & Emergency Preparedness), 2011 FC 458, and Ahmed v Canada (Minister of Citizenship & Immigration), 2004 FC 226), and Singh v. Canada (Citizenship and Immigration), 2015 FC 1210.
Purpose of Visit
In Agidi v Canada (Minister of Citizenship and Immigration, 2013 FC 691, the Federal Court found that a (compelling) reason to visit Canada is not required in order to issue a TRV.
In Guillermo v. Canada (Citizenship and Immigration), 2017 FC 61, the Federal Court affirmed that visits to close family members are an acceptable purpose of visit.
Situation in Country of Origin
The jurisprudence is mixed regarding whether a visa officer can refuse an application largely based on the situation in a person’s country of origin. In Demyati v. Canada (Citizenship and Immigration), Justice Roy stated:
What appears to have been the most important factor in the refusal was the fact that the applicant is a Syrian national who has been living outside of Syria for most of his life. The decision-maker seems to have concluded that given the situation in his country of origin, he would not be inclined to go back to his country of nationality if his residence status in the United Arab Emirates were to change. Given the record as it is before the Court, this looks more like a hunch based on speculation than a justification supported by some evidence. If that could constitute some form of justification, this would lack transparency and intelligibility without a more complete articulation.
Children Visiting Alone
Pursuant to the Federal Court of Canada’s decision in Sangchai v. Canada (Citizenship and Immigration), 2019 FC 376, visa officers must ensure that they do not apply the same standards in assessing the various checklist factors when assessing visitor visa applications for children. For example, it would be unreasonable for an officer to discount the evidence of school enrollment on the ground that it could be cancelled at any time as this could be true of any applicant attending an educational institution in their home country.
Unfortunately, there may be other factors that are not relevant to the individual that can impact whether a visa will be refused. As demonstrated in the image below, a visa officer training guide states that borderline cases from Liaoning, Guangdong, Hebei, Fujian, and Henan would likely be refused, simply because the applicants are from areas of high risk. While one hopes that this is not the case, it is difficult to completely discard training manuals which contain instructions like this.
A Final Note
It is important to note that even if some parts of a decision are reasonable if several factors are unreaosnable then the decision as a whole could be rendered unreasonable. As the Federal Court of Canada noted in Peiro v. Canada (Citizenship and Immigration), 2019 FC 1146:
Considering these three factors, the Officer’s decision appears unreasonable. While the role of this Court on judicial review is not to reweigh the evidence, two of the three reasons given by the Officer are not reasonable, based on the record.
The reasons do not allow this Court to understand why the decision was made with respect to the Officer’s decision relating to family ties or economic motives to remain in Canada. I can only conclude that the Officer misconstrued the evidence as a whole in assessing the Applicant’s application.