In August 2019, Pax Law successfully overturned a decision by a visa officer to refuse a study permit to Mr. Ali Aghaalikhani.

Mr. Aghaalikhani originally applied for the study permit from his country of residence, Iran, in 2018. His plan had been to complete a Business Administration diploma in Canada and then return to Iran where he already had a job lined up at Otagh Asnaf Iran (“Iran Chamber of Guilds”). He had secured a position at Langara College and had already prepaid his tuition – almost $6000 in fees. In January 2019 however, his request for a permit was swiftly denied by a visa officer at the Canadian Embassy in Ankara without so much as an interview.

In his reasons, the officer stated that he believed Mr. Aghaalikhani was likely to remain in Canada following his studies. He also questioned Mr. Aghaalikhani’s desire to study within Canada; he wrote that, since there were similar business administrative programs in Iran with cheaper tuition fees, he wasn’t satisfied with Mr. Aghaalikhani’s purpose of requiring the visa.  According to the officer, Mr. Aghaalikhani’s travel history warranted suspicion as well.

In the process leading up to the decision, Mr. Aghaalikhani sent two motivation letters to the Canadian Embassy officials. In them, he explained that Canada had a good reputation of educational institutions and that the fees were more reasonable than countries like the United States or the United Kingdom. He mentioned he had a job offer waiting for him in Iran, and that he was unmarried, had no children, and almost all of his immediate and extended family resided in his home country. After receiving the officer’s decision, Mr. Aghaalikhani requested a reconsideration and again received a refusal.

Thankfully, Mr. Aghaalikhani sought the counsel and representation of Pax Law’s founder, Mr. Samin Mortazavi.

Mr. Mortavazi filed an application for a judicial review. He did so on the grounds that the officer’s denial was unreasonable and that his actions “breached the principles of natural justification by failing to give Mr. Aghaalikhani an opportunity to respond to the officer’s concerns”. The review was granted, and a hearing set for August 15th, 2019.

The Honourable Denis Gascon acted as presiding judge, and the opposing counsel was Mr. Simon Meijers.

Mr. Meijers supported the officer’s decision by citing two subsections of the Immigration and Refugee Protection Act, which essentially ask that the person wishing to become a temporary resident of Canada meet the requirements of the Act, and that the applicant give adequate reason to convince the officer he/she will leave Canada after their visa expires. Mr. Meijers argued that since the officer’s jurisprudence had already been established – that is, the officer had been conferred quasi-legislative power – there was no need for further analysis. Due to these powers, Mr. Meijers said, the reviewing court must show deference to the officer’s jurisprudence, so long as it is “justified, transparent and intelligible”. He concluded that, because the decision was made “well within” the officer’s special expertise and was based on factual findings, a “high degree” of deference was required.

In response, Mr. Mortazavi acknowledged that while visa officers are entitled to a high degree of deference, the Court cannot show “blind reverence” to the a “decision-maker’s assessment and interpretation of evidence”. He reminded the Court that it is the Court’s responsibility to discern “irrationality or arbitrariness” in a decision, and that, regrettably, he believed this was an instance in which both existed. He contested the claim that Mr. Aghaalikhani’s incentives to stay in Canada might outweigh his ties to Iran by pointing out Mr. Aghaalikhani’s complete lack of ties in Canada and strong familial ones in Iran. Mr. Mortazavi refuted the suggestion that Mr. Aghaalikhani’s desire to study in Canada was unwarranted, emphasizing Mr. Aghaalikhani’s letters to the Embassy which contained detailed and valid reasons for his choice to study in the country. Finally, Mr. Mortazavi argued, there was absolutely no basis for the supposition that Mr. Aghaalikhani would remain in Canada after the completion of his diploma. In fact, he had evidence – in the form of his future job position in Iran – which supported the opposite. Mr. Mortazavi asked that the Court intervene in this matter, given the unreasonableness of the officer’s decision.

Mr. Mortazavi’s impassioned and incisive submissions paid off. The following day, Judge Gascon came back with his judgement: the decision to reject Mr. Aghaalikhani’s study permit was to be set aside and the permit was to be re-determined by another visa officer. The case set a strong precedent which has since been cited in five subsequent suits: Khir v. Canada (2021), Soni v. Canada (2020), Carin v. Canada (2020), Mekhissi v. Canada (2020), and Hajiyeva v. Canada (2020).

 

 


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