Date: 19980723
Docket: IMM-4377-96
BETWEEN:
ZHI TONG YEP et al.
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered orally from the bench on June 15, 1998)
MULDOON, J.
[1] This is an application for judicial review, pursuant to Section 32.1 (2) of the Immigration Act of Canada, of a decision of a visa officer in which the applicant was denied permanent residence on the basis that she did not meet the definition of a dependent daughter as defined in the Immigration Regulations 1978 SOR/70-172.
[2] The applicant seeks an order setting aside the decision, and asks that the matter be referred back to another visa officer for a new determination.
[3] The question before the court boils down to whether the visa officer made an error in law, or made some error in fairness, or whether she perhaps was biased or dismissive of the applicant's case.
[4] The refusal letter of the visa officer in file No. B031343826 of the Canadian embassy in Bejing is a two page letter, dated June 10, 1996.
[5] She recites the immigration regulations definition of a dependent son or daughter as
"... someone who is (a) less than nineteen years of age and unmarried, or (b) is enrolled in -- and these are important words -- and in attendance as a full time student in an academic, professional or vocational program at a university, college or other educational institution, and (1) has been continuously enrolled and in attendance in such a program since attaining nineteen years of age, and (2) is determined by an immigration officer, on the basis of information received by the immigration officer, to be wholly or substantially financially supported by her parents since attaining nineteen years of age, or (c) is wholly or substantially supported by her parents and (1) is determined by a medical officer to be suffering from a physical or mental disability -- that is not so here -- and (2) is determined by an immigration officer, on the basis of information received by the immigration officer, including information from a medical doctor that he or she is incapable of supporting him-herself by reasons of such disability." No such disability is in issue here.
[6] The immigration officer -- or visa officer -- Susan Barr interviewed both the applicant and her older brother simultaneously. She set out the following in her letter of refusal:
| "A careful review of your file has revealed that you are not a 'dependent' son/daughter as defined by 2[1] of the Immigration Regulations 1978, in that you have not been continuously enrolled and in attendance as a student in an academic, professional or vocational program since attaining nineteen years of age. |
| At the conclusion of your interview, I advised you that I am not satisfied that you are a full time student, as the documents you have submitted with respect to your student's status do not conclusively support that you have been a full time academic, professional or vocational student since attaining nineteen years of age. |
| As I am not satisfied that you are a bona fide full time student as described in the Regulations, I have determined that you are ineligible as a dependent for the purposes of this application. I have considered possible humanitarian and compassionate grounds in your cases. However, there are no humanitarian or compassionate grounds to warrant extraordinary action." |
[7] The visa officer then swore an affidavit in this matter, in which she may have said too much. She recites what she took into account in finding that this applicant did not comply with the regulation's definition of dependent daughter, and then sets out what she took into account.
[8] In paragraph 5, page 2 of the respondent's application record, is part of the affidavit of Ms. Barr, wherein she deposes:
| "In my experience, it is extremely unlikely that a Chinese family from this type of socio-economic background [rural farm family, extended relatives, all peasants] would have any children with post secondary education, let alone three, as is alleged in this case. |
| In China, children are subsidized by the state to attend school to the junior middle school level. Most children from uneducated families complete primary school [six years] and junior middle school [three years], and then they go into the work force. |
| In order to go to senior middle school [another three years] a student must have good grades, and must qualify by writing an entrance examination. After completing senior middle school, you must again qualify, through good grades and examination, before you can be registered as a university student." |
| 6. "Students who have passed the national examinations and qualify to attend university are considered to be fully registered students. They are the only ones who will receive a university degree, and they will be placed by the state, after successful completion of their studies, in suitable employment." |
| 7. "Others can go to university as 'pay students', but these individuals are similar to auditing students in Canada. They will never get a degree, nor are they considered to be fully registered students. Since they never had the academic requirements to qualify for university admission in the first place, they are not considered to be 'academic' students." |
[9] Now she finally comes, in paragraph 8, to the applicant:
| 8. "In the present case, the female applicant only completed junior middle school, and then went on to a vocational school. This is a clear sign that she could not qualify to go on to senior middle school in an academic stream. As the female applicant did not qualify for an academic stream in senior middle school, she would not also meet the academic requirements to qualify as a fully registered university student." |
| 9. "The students who take vocational courses seldom go on to any other form of education. This applicant, however, claimed that she did go on to complete one year of preparatory college courses and after that, she continued as a full time student. However, since she did not have the qualifications of a fully registered university student, she must have been attending as 'pay student'. Since she is not taking academic, professional or vocational courses, it is my opinion that she did not qualify as an eligible overaged dependent." |
[10] There are further paragraphs, but those are the nub of the visa officer's affidavit.
[11] Well, first of all, one can find generalizations on which the visa officer speculates for this student. The visa officer does not qualify herself, and is not accepted by this Court as an expert. And so, if she be a witness of fact, as she must be, she has not the facts. Wouldn't it have been great -- at least from the respondent's point of view -- if the visa officer had annexed a calender from Zhaoguan University, which would have shown that the applicant was in the plight in which the visa officer put her.
[12] There is no indication in the regulations that one cannot qualify if one be a pay student. It is almost a pejorative term, as used by the visa officer, that she may be a 'pay student'. But there is no proof that she is a pay student, or anything else pejorative.
[13] There is no requirement in the regulations that one ever get a university degree, but rather that one be enrolled full time in an academic, professional or vocational course.
[14] No one knows that it is clear that the applicant did not qualify to go on to senior middle school, or that the female applicant could not qualify for an academic stream in senior middle school, or that she would not meet the academic requirements to qualify as a fully registered university student. It is not obvious that she did not have those qualifications.
[15] But what is obvious from the documents is that she was in a pre-university course, in an arts program. As if it matters, the visa officer says that students who take vocational courses seldom go on to any other form of education. She said the applicant, however, claimed that she did go on. However, the visa officer is not accepting of that, because she must have been attending as a pejorative 'pay student'.
[16] Then the visa officer finds that she was not taking academic, professional or vocational courses. One can concede that the applicant was not taking professional or vocational courses. But in the documentation before the Court -- and the Court accepted and allowed the preliminary motion on the part of the applicant, since there was some indication that the visa officer indicated that the applicant was at the Zhaoguan college, taking the course there. So, the Court, on a preponderance of evidence, notes that the applicant said she had placed before the visa officer her student ID card, and respondent's counsel -- in a most professional manner; (no complaint here) -- indicated that it was not possible to confirm or deny that the student ID card was before the visa officer.
[17] However, the student ID card not only says that she was registered in 1995 and 1996 for two seminars, the first from October 26, 1995, to January 31, 1996, and the stamp says 'Already Registered' -- that's the best translation we have, and the translation has not been contested.
[18] Also, she was registered in a second semester, from March 4, 1996, to August 31, 1996. And the stamp on that indicates again 'Already Registered'.
[19] What is more important about this ID from Zhaoguan University is that it shows that the applicant is registered in the college arts program. Now that is quintessentially an academic program; there is no question in the Court's mind, and there should have been no question in the visa officer's mind -- but then she added something; she set herself up as an expert in the matter.
[20] There is a document which was before the visa officer, but no translation was provided in the original application. However, the translation of that document is that it is a Zhaoguan University certificate, and it goes on to say: "Yep, Tong Zhi, female, born 1975, is presently a student of our pre-university department for adults in Class No. 6, The program is one year, from October 1995 to June 1996."
[21] Down below, it says: "This is to certify the above," and then there is a stamp which says, "Pre-university department of Zhaoguan University, May 27, 1996." That indicates that she was registered as a student in the pre-university department.
[22] In the Court's opinion, the visa officer erred certainly in her understanding of the regulations. The regulations seem to be fully complied with here, and it appears that the applicant was registered full time, for a full year, in the pre-university course from October 1995 to June 1996. And a pre-university course, in the Court's understanding of those words, must mean an academic course, a course which prepares one for university.
[23] Now, the visa officer introduced many extraneous matters; whether that course was going anywhere, whether the applicant would be marked or graded on exams, whether it would lead to a degree. Of course, one would expect that a pre-university course would not lead to a degree, because it is what it says it is -- before university -- and it is university courses which result in a degree.
[24] The applicant's counsel has cited several cases, as well as putting before the Court a book of authorities.
[25] In the case of Saggu v The Minister of Citizenship & Immigration, which was a 1994 case, and judgment was rendered in November of that year, the applicant's counsel refers to paragraph 16 (d), where it says:
| "Where the visa officer has an impression of deficiency in the proof being offered by the applicant, there may be a duty to give the applicant some opportunity to disabuse the visa officer of that crucial impression. The duty of fairness owed to the applicant may require that such an opportunity be given." |
In that instance, the Court cited Fong v Minister of Employment & Immigration (1990) 35 F.T.R. 305, a decision by the Honourable Mr. Justice McNair, as well as Dahliwal v Minister of Employment & Immigration (1992) 16 F.T.R.
[26] A further decision of the Court cited by counsel was Pathak v The Royal Bank of Canada, (Federal Court of Appeal) [1995] 2 FC 455. In that case, the applicant's counsel pointed to paragraph 10 in the reasons given by the Honourable Mr. Justice Pratte in which he said:
| "A document is relevant to an application for judicial review if it may affect the decision that the court will make on the application, as the decision of the court will deal only with grounds of review invoked by the respondent. The relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent." |
[27] A further decision referred to by the applicant's counsel was Friends of The West Country Association v Minister of Fisheries & Oceans, a 1997 decision of this Court. That decision again refers to the necessity of having the documentation provided up front by the regulator, by the person who is going to make the decision, so that the one who is applying or responding to the person making the decision can know what it is. Paragraph 25 of that decision says:
| "Rule 161.2 allows an applicant to request that a tribunal provide a certified copy of the material in the tribunal's possession of which the applicant does not have possession. The applicant must specify the particular material, which must be relevant to the application for judicial review." |
The tests under this section are possession and relevance, and of course, that is the reason why the student ID card is so important, because it can indeed change the outcome of the case, given the flaws in the visa officer's reasons.
[28] Finally referred to was the case of Zhao Guang Lun v Minister of Citizenship & Immigration, a decision of the Honourable Mr. Justice Campbell made on December 9, 1997. Here it would appear that they encountered the same visa officer as in the case before the court today. In paragraph 4, Mr. Justice Campbell says:
| "However, in coming to the conclusion I have, I intend to try to explain, in some detail, the serious factual errors that have been made in the context of an overriding dominant scepticism displayed by Ms. Barr toward Mr. Lun. I am of the opinion that there was a negative predisposition here on the part of the decision-maker which unfairly affected the results." |
Mr. Justice Campbell embellishes in paragraph 10, and makes some generalizations himself. But in paragraph 11, he says that he thinks that there is some evidence -- that is to say, in the visa officer's decision -- some evidence of an impairing scepticism, because the visa officer ... by indicating her frame of mind, was engulfed in generalizations and speculations.
[29] Finally, the Court must mention the question of a major principle, one of the major principles expressed in the Immigration Act itself, and that has to do with family re-unification, a principle of Canada's statutory immigration policy.
[30] That does not weigh very heavily if a party applying to be re-unified has no basis whatever for applying. But in this case, on the balance of probabilities, the evidence is apparent to the court that the visa officer erred in law, and failed in fairness, and extrapolated speculations from generalizations she made, without qualifying herself as an expert -- which she was not, in effect, in this matter.
[31] So, for these reasons, the Court is of the opinion, and holds, that the visa officer's decision of June 10, 1996, cannot stand, must be quashed, and that the application be referred back to another visa officer, to be viewed afresh.
[32] Now, there has been an effluxion of time. The applicant is older now than she was then. She may now be, or not be, registered in the appropriate courses, or enrolled in the appropriate courses, so that the new visa officer will and must actually view the matter from the point of view from which it was viewed by this visa officer, in this case. In other words, the applicant is not to be prejudiced by the effluxion of time.
[33] There is one thing the Court will add for the new visa officer, not knowing whether these guidelines are still in effect. But in the guidelines, where it says that processing members of the family class, the very guidelines which are appended as Exhibit A to the affidavit of Ms. Susan Barr, under Part 5, Dependent Children, it is important to note -- and should be noted by whichever visa officer will look at this affidavit for the second time -- Item No. 5.4.4, headed Inform Applicant About Your Doubts.
[34] Well, the next visa officer is also not an expert and should not simply make assertions based on hearsay without factual grounds. The next visa officer ought to look to the applicant, as it says here: "You must give applicants a chance to clear up your doubts. If you think their documents are false, or that the schools they attend are not educational institutions, tell them why. You can do this during the interview, or in writing."
[35] It seems that the visa officer in this case simply adhered to her doubts, or her own strong preconceived opinions, and gave her refusal on that basis. So, that admonition is doubly advisable for the second visa officer.
[36] The guidelines say that it might be unusual for a nineteen-year-old to still be in school, and one should look at the cultural background, the cultural norms.
[37] Well, it is apparent from the evidence here -- this would not be, of course, to deprive the second visa officer of following these guidelines, looking at the cultural norms.
[38] But it is apparent here that this applicant is an exceptional case, an aberration of the farming peasant class to which the visa officer here consigned her forever; that she is an exceptional person.
[39] In North America, there used to be a culture of Horatio Alger, who started by selling newspapers and became as much of a capitalist as J. Pierpont Morgan. That is the hope of North American society, that one can start from low beginnings and rise. Presumably, among the vast population of China, there are also other people who can start from humble beginnings and rise -- if they have a fair hearing, a fair chance.
[40] One supposes that it is hardly necessary to add that the application is allowed, and the matter will be referred back to another visa officer. Based on those reasons, there will be an order.
IMM-4377-96
BETWEEN
ZHI TONG YEP et al.
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Let the attached edited version of the transcript of my Reasons for Order delivered orally from the bench at, Toronto, Ontario, on June 15, 1998, be filed to comply with Section 51 of the Federal Court Act.
F. C. Muldoon
Judge
Ottawa, Ontario
July 23, 1998