Date: 20010125
Docket: IMM-2813-00
BETWEEN:
LINWEI WANG
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application is for judicial review of a decision of an Immigration Officer at the Canadian High Commission in London, England (hereinafter "the Immigration Officer"), dated April 27, 2000, wherein she refused Linwei Wang's (hereinafter "the Applicant") application for a Canadian student visa on the basis that the Applicant had no previous travel history as he had just arrived in the United Kingdom, that she did not have the ability to establish the Applicant's ties to his home country, or the authenticity of the documentation the Applicant provided and she was not satisfied that the Applicant was a bono fide visitor to Canada.
[2] The Applicant is a citizen of the Peoples' Republic of China. In March 2000, the Applicant submitted an application for a student authorization in order to attend Malaspina University College in British Columbia where he was accepted into a one-year English as a second language program and was conditionally accepted into a Bachelor of Computer Science Program for a period of approximately four years.
[3] At the time the application was being processed, he was studying English Language at Rochester Independent College in the United Kingdom on a student visa which has since expired.
[4] On April 5, 2000, the Immigration Officer reviewed the application and the supporting material submitted and found that the Applicant had no previous travel history. He was a recent arrival to the United Kingdom and his status in the UK was temporary. The Immigration Officer also concluded that the only tie the Applicant had established in his home country was the fact that his parents reside in China and that the Applicant had not provided adequate information on the situation in his home country. According to the Immigration Officer, she was unable to establish the validity or authenticity of the documentation provided by the Applicant.
[5] The Immigration Officer found that documentation revealed that the Applicant had been accepted as a full-time student in an English second language program at Malaspina University College in Nanaimo, B.C. along with a conditional acceptance into a Bachelor of Science-Computer Science Program to last from April 25, 2000 until April 30, 2004. However, the acceptance letter indicated that the program completion may take longer depending on the level of the Applicant's English skills, progress in learning English, and possessing or achieving the necessary academic program prerequisites. Fees for the first semester totalling $3,551.68 were paid in advance.
[6] The Applicant did not include a personal letter or study plan offering an explanation as to his intentions. However, a financial guarantee was submitted by the Applicant's mother indicating that the Applicant would abide by all school regulations and return to China upon the completion of his study.
[7] On April 27, 2000, the Immigration Officer refused the Applicant's application for a student authorization on the grounds that she was not satisfied that the Applicant was not an intending Immigrant. In the refusal letter, the Immigration Officer stated that the Applicant did not have any previous travel history as he had just arrived in the UK. She also stated that she did not have the ability to establish the Applicant's ties to his home country, or the authenticity of the documentation provided and that she was not satisfied that he was abono fide visitor to Canada.
[8] The question I must determine is whether the Immigration Officer erred in her assessment of the evidence with regards to the Applicant's family ties in China and his intention to return to China.
[9] The Applicant submits that the Immigration Officer erred in her interpretation of section 9(1.2) of the Immigration Act as meaning that an application for temporary entry into Canada can be refused if the immigration officer is not satisfied that the applicant does not intend to immigrate to Canada. Section 9(1.2) does not entail that an intention to immigrate to Canada is a valid reason for refusing an application for a temporary visa, but rather that an intention to remain in Canada illegally, after the expiration of a temporary visa, may be considered as a reason to refuse the application. The Immigration Officer needs only to consider if whether or not the Applicant has a valid temporary purpose in seeking to travel to Canada.
[10] The Applicant further submits that the Immigration Officer based her decision on a number of findings that were erroneous and / or irrelevant:
| a) The Immigration Officer stated that the Applicant has no history of travel. Rather, the Applicant does have a history of travel as he applied and obtained a visitor student visa for the UK. The Applicant at the time of the application was only 17 years of age; |
| b) The Immigration Officer raised concerns about why the Applicant has not applied for computer courses in the UK which is entirely irrelevant; |
| c) The Immigration Officer ignored the fact or gave inappropriate weight to the fact that the Applicant had already been studying for 8 months in the UK; |
| d) The Immigration Officer ignored the evidence in regards to the Applicant's family situation and job offer in China on the grounds that she was unable to "establish the ... authenticity of documentation provided". The Applicant argues that the Immigration Officer breached procedural fairness in not making any attempt to check the authenticity of these documents. |
[11] The Applicant submits that the Immigration Officer erred in failing to bring concerns to her attention and to provide an opportunity to disabuse her of those concerns.
[12] The Respondent submits that the appropriate standard of review for an immigration officer's decision not to issue a student authorization is patent unreasonableness.
[13] The Respondent argues that an immigration officer is entitled to consider a variety of factors when assessing an applicant's long term goals and visitor visa application, including level of education and his pattern of employment. Furthermore, the requirements for obtaining a visitor's visa are clearly set out in the Act and the Regulations. Pursuant to subsection 2(1) of the Act and 13(2) of theRegulations a person applying for a visitor's visa must have a temporary purpose.
[14] The Respondent submits summarily that based on the evidence before her, the Immigration Officer concluded that the Applicant was not a genuine visitor to Canada and therefore did not meet the requirements of theAct and therefore was rightly refused.
[15] The Respondent further submits that given the absence of a personal letter or study plan, as well as the other circumstances surrounding the application, as noted in CAIPS and in her affidavit, the Immigration Officer was not satisfied that the Applicant would return upon the completion of his studies in Canada.
[16] The Respondent contends that there is no ground for arguing unfairness in the process merely because the Immigration Officer did not communicate all of her concerns to the Applicant or give her an opportunity to respond as the issue of intention to reside in Canada is a matter that arises directly from the Act and the Regulations and are available to applicants whose task is to establish to the satisfaction of the visa officer that they meet the criteria set out, and that their admission to Canada would not be contrary to the Act.
[17] The Respondent further contends that whether to permit personal as opposed to written representations is a matter within the discretion of the decision-maker. In the case at bar, the Applicant had a meaningful opportunity to state his reasons for coming to Canada and to put forward all of the information necessary to satisfy the requirements of the Act and the Regulations regarding student authorizations and it was fully and fairly considered.
[18] The Applicant seeks an order for a writ of certiorari setting aside the decision and a writ of mandamus directing the Respondent to process the Applicant's application in a favourable manner or referring the matter back to a different immigration officer for reconsideration and costs.
[19] In To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (unedited), the Federal Court of Appeal held that the appropriate standard of review of the discretionary decisions of visa officers with respect to immigrant applications was the same as that enunciated in Maple Lodge Farms Ltd. v.Canada, [1982] 2 S.C.R. 2, where MacIntyre, J., stated the following:
| It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, were required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
[20] This has been confirmed by this Court in Tajammul v.Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 259. In light of the Supreme Court of Canada's decision in Baker v.Canada (Minister of Citizenship and Immigration), [1999] 2 R.C.S. 817, it would seem that the appropriate standard of review should be reasonableness simpliciter.
[21] Upon reviewing the evidence, the Applicant has successfully shown a basis for interfering with the decision as, in my opinion, the Immigration Officer did not take into consideration all of the relevant material that was before her.
[22] As was stated in the refusal letter sent by the Immigration Officer on April 27, 2000 and in her Affidavit, the Immigration Officer refused the application on the basis that she could not establish the Applicant's ties to his home country, the authenticity of the documentation provided and because she was not satisfied that the Applicant was a bono fide visitor to Canada. According to the Immigration Officer, the only tie the Applicant had established in his home country was that fact that his parents resided in China.
[23] I am satisfied that the Immigration Officer's conclusions are not founded on the evidence and are entirely unreasonable. It is clear from a review of the Certified Tribunal Record, that the Applicant had a conditional agreement for employment with Hainan Qixing Decoration Engineering Co. Ltd. in Haikou City, Hainan Province, China, upon successful completion of his studies. The Record also contains a letter from Rudi Schepers, Canadian Overseas Immigration and Business Services Inc., in which he makes reference to the Applicant's intention to return to China to take care of his parents and to start his professional career at Hainan Qixing Decoration Engineering Co. Ltd. The Financial Guarantee provided by the Applicant's mother, Wu Yueying, also makes reference to his future employment in China.
[24] From my reading of the Record, the Immigration Officer's Affidavit and the Written Submissions of the Respondent, it appears that the Immigration Officer disregarded the offer of employment which was properly before her. Or, at the very least, there is simply no way of knowing whether the officer had due regard for that evidence in reaching its decision.
[25] In addition, several of the Immigration Officer's findings contained in the CAIPS notes are irrelevant. In particular, why the Applicant, having just arrived in the United Kingdom from China and wanting to study in Canada, did not apply from China and whether or not the Applicant had applied to study in a similar program in the United Kingdom is highly irrelevant and should not have been a factor in the assessment. The same can be said of the Applicant's lack of previous travel history. The Applicant is seventeen years of age. It is only logical that his travel history would be limited given his age.
[26] The Immigration Officer also stated in the CAIPS notes and in the refusal letter that she could not establish the validity or the authenticity of the documentation the Applicant provided. However, she fails to provide any evidence to support such a negative determination. This finding is, in part, the basis for the Immigration Officer's decision to refuse the application. As such, she should have enunciated her reasons for questioning the authenticity of the documents. In reviewing these documents, I can find no obvious reason to question their validity or authenticity.
[27] Finally, paragraph 8 of the Immigration Officer's Affidavit reads that there was no additional documentation that she could request from the Applicant and that she did not believe an interview or request for further documentation would alter the areas of concern. This statement, in my mind, makes it clear that the Immigration Officer had already reached a decision and was not open to properly addressing the areas of concerns.
[28] It is trite law, that tribunal reasons are not to be read hypercritically by a court nor are tribunals required to refer to every piece of evidence that is contrary to its findings. However, I am of the view that the offer of employment from Hainan Qixing Decoration Engineering Co. Ltd., despite the fact that it employed both the Applicant's parents and that the Applicant's father owned 40% of the companies shares, warranted the Immigration Officer's specific consideration and mention in her reasons given the relevance of this information which tended to rebut the presumption that the Applicant is an immigrant pursuant to subsection 8(2) of the Act.
[29] As such, I am of the view that the Immigration Officer was obligated to state why she did not accept the offer of employment in order to establish the Applicant's ties to China and his intention to return upon expiry of a visa and in failing to do so committed a reviewable error.
[30] The application for judicial review is granted.
JUDGE
OTTAWA, Ontario
January 25, 2001