Date: 20010126
Docket: IMM-2172-00
BETWEEN:
FANG CHEN
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 Carole Courchesne, Immigration Officer at the Canadian Embassy in Beijing, Peoples Republic of China (hereinafter "the Immigration Officer"), dated March 28, 2000, wherein she refused Fang Chen's (hereinafter "the Applicant") application for a Canadian student visa on the basis that the Applicant had not satisfied her that upon completing the claimed duration of the proposed studies, it was her intention to return to the Peoples' Republic of China and that she or her sponsor had adequate funds to pay for her expenses while in Canada.
[2] In October 1999, the Applicant submitted an application for a student authorization in order to attend college in Vancouver, B.C. for a period of one year.
[3] The Immigration Officer concluded upon review of the Applicant's education and employment history, that her study plan was not reasonable in light of the material submitted.
[4] The Immigration Officer also concluded that the Applicant did not provide credible evidence of sufficient funds for the proposed studies and was not satisfied that the funds would likely be available over the term of her proposed studies in Canada.
[5] The Immigration Officer also concluded that based on the evidence she was not satisfied that the Applicant was a genuine visitor to Canada.
[6] The Applicant's application was refused on March 14, 2000.
[7] The question I must determine is whether the Immigration Officer erred in her assessment of the Applicant's study plan, financial status and intention to return to the Peoples' Republic of China.
[8] 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. Based on the statements and supporting documentation provided, it was unreasonable to conclude that she would likely remain in Canada illegally upon the expiration of a student visa.
[9] The Applicant further submits that the Immigration Officer's finding that her study plan was not reasonable is not substantiated in her education and employment history. Rather, the fact that she had not completed any form of higher education beyond the level of senior middle school, and has never been employed in a prestigious or professional career supports her stated intention to seek studies in Canada to acquire the education necessary to pursue a professional career in China, where she may remain near to her parents.
[10] The Applicant submits that the Immigration Officer erred in failing to inform her of concerns regarding the application, in particular her intention to return to China and her financial status and in not providing her an opportunity to disabuse her of such concerns.
[11] The Respondent submits that the standard of review for an immigration officer's decision not to issue a student authorization is patent unreasonableness.
[12] The Respondent submits that the Applicant did not provide credible evidence of sufficient funds for the proposed studies. Although evidence of funds was submitted, there was no credible evidence provided regarding the source of the funds. Financial information did not demonstrate that the Applicant's parents had accumulated the funds over a period of years. Recent, large deposits were not explained. No history of funds was provided for deposits in American dollars. Interest receipts submitted had not been stamped by the bank. As such, English translations of a contract or other evidence of a sale of her father's company were not provided. In addition, her father's stated annual income was 30,000 RMB (about $5,357 Cdn.). The Immigration Officer was not satisfied that the funds would likely be available over the term of the Applicant's proposed studies in Canada.
[13] The Respondent submits that based on the evidence before her, the following reasonable findings of fact were made:
| a) At the time the application was submitted, the Applicant was 22 years old. She completed senior middle school in 1995 and had not pursued any further studies during the subsequent five years; |
| b) She was accepted by Pattison College in Vancouver, B.C. for a combined English Studies/Business Administration program for an initial period of one year; |
| c) She worked as a cashier in an aquatic products company for five months in 1995. From February 1996 to January 1998, she was an employee in an electronic factory; |
| d) There was no evidence of employment or studies between January 1998 and March 1999; |
| e) From March 1999 to the time of her application, she indicated that she was a salesperson in a real estate company, however, no letter of employment was submitted and her passport, which was issued on July 26, 1999, cites her profession as "farmer"; |
| f) Her stated purpose of her visit to Canada is to study English as a second language and business administration in what she alleges is a one year program. Her stated career goal is to be a professional sales manager in an international company in her hometown. |
[14] These findings of fact lead the Immigration Officer to conclude that the Applicant was not a genuine visitor to Canada.
[15] The Respondent further submits that the Applicant stated in her application that she intended to come to Canada for one year. However, the acceptance letter from Pattison College is for an initial period of one year, the implication being that the program's total length is more than one year. The Respondent contends that not only was the Immigration Officer's assessment correct, but the Applicant's application did not reflect the whole truth.
[16] The Respondent submits that the issue of intention to reside in Canada is a matter that arises directly from the Act and the Regulations which are available to applicants whose task is to establish to the satisfaction of the immigration officer that they meet the criteria set out, and that their admission to Canada would not be contrary to the Act. In addition, the Application Kit outlines the requirements that must be met by an applicant and the supporting documentation to be included by an applicant in his/her application. As such, there is no ground for arguing unfairness in the process. Extrinsic evidence was not used in the assessment, therefore the cases of Muliadi and Basco relied on by the Applicant are distinguishable.
[17] The Applicant seeks an order for a writ of certiorari setting aside the decision and an order for a writ of mandamus directing the Respondent to process the Applicant's application for a student authorization in a manner favourable to the Applicant or referring the matter back to a different immigration officer for reconsideration.
[18] I am of the view that the integrity of the record before the Immigration Officer has been compromised as the Respondent has failed to provide a copy of the complete certified tribunal record that was before the Immigration Officer in this matter.
[19] Although the Applicant has filed the Affidavit of Echo Hu that purports to attach as an exhibit, the supporting documentation that accompanied the Applicant's application, which has not been contested by the Respondent, I am of the view that this Court cannot be sure of having before it an accurate and complete record.
[20] Given the fact that this judicial review revolves primarily around the Immigration Officer's assessment of the Applicant's financial status, the Respondent's inability to provide a complete certified tribunal record of all of the documents that were before the Immigration Officer necessarily forces this Court to infer as was done by Sharlow J. in Hagona v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1378 (QL) that there was no evidentiary basis for the conclusion that the Applicant or her sponsor had adequate funds to pay for her expenses while in Canada.
[21] In the alternative, if I accept that the material provided in the Affidavit of Echo Hu does reflect an accurate and complete copy of the record, contrary to what the Immigration Officer concluded, there is abundant evidence of adequate funds to pay the Applicant's expenses while in Canada.
[22] In light of the foregoing, this application is granted and the matter is to be returned before a different visa officer for redetermination.
JUDGE
OTTAWA, Ontario
January 26, 2001