Date: 20030410
Docket: IMM-57-02
Neutral citation: 2003 FCT 423
Toronto, Ontario, Thursday, the 10th day of April, 2003
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
SUN YUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Sun Yue is a young woman from China seeking to come to Canada as a student. She planned to study English and complete a university preparation program in Canada, and then to apply to university here. She applied for a student visa in 2001 and was turned down on the grounds that she had failed to provide sufficient proof of the availability of adequate funds for her studies.
[2] Ms. Sun had the benefit of financial support from her parents, as well as from an aunt living in Oakville, Ontario. Her parents had savings of about $33,000 and the aunt had about $70,000. The latter indicated that she would be providing Ms. Sun accommodation and would be prepared to pay all of her expenses.
[3] The visa officer was concerned about the funding situation. Ms. Sun's parents had good jobs in Inner Mongolia, but even their combined salaries would have made it difficult for them to have saved a substantial amount of money. The same was true of the aunt, who earned about $28,000 a year as a health care worker. Accordingly, in a letter dated November 12, 2001, the officer specifically asked Ms. Sun to provide banking documents for the previous 18 months for both her parents and her aunt. Presumably, those banking documents would have shown how the funds came to be accumulated in the respective accounts. Clearly, the officer was worried that the funds had been borrowed and deposited in order to persuade him that Ms. Sun had the resources necessary for her studies, but were not really available for that purpose.
[4] Ms. Sun supplied a number of documents in response to the officer's request, including letters from the aunt's banks indicating that the aunt had accumulated the funds in her account through a series of term deposits commencing in 1998. However, the documentation did not entirely meet the officer's request. In the end, he sent a letter dated December 5, 2001 to the applicant indicating that he was not satisfied that Ms. Sun had adequate funds available to her to meet her expenses in Canada. His notes confirm that he was not satisfied that there were sufficient funds "considering the length of planned studies." His affidavit elaborates on his concern. He says:
"Considering parents' and aunt's relatively low income for the past two years, bank documents only showing recent banking activity, no explanation why no banking records for past 18 months have been submitted as per our request, I was not satisfied that funds demonstrated were not borrowed for demonstration purposes only. I was not satisfied that the funds had been accumulated by the Applicant's family and that these funds would be available for the duration of Ms. Sun's studies in Canada."
I. Issues
[5] There are four issues that arise in this case:
1. Did the visa officer breach the duty of fairness by not giving Ms. Sun an adequate opportunity to respond to his concerns?
2. Did the visa officer fetter his discretion by requiring proof of banking history over an 18- month period?
3. What is the standard of review applicable to the visa officer's decision?
4. Did the visa officer make a reviewable error in concluding that there was insufficient evidence of adequate funding?
[6] I will deal with each of these issues in turn.
A. Did the visa officer breach the duty of fairness by not giving Ms. Sun an adequate opportunity to respond to his concerns?
[7] The visa officer made clear to Ms. Sun in his letter of November 12, 2001 that further financial information was required. She was given 30 days to submit that information and, indeed, tendered a number of documents. In my view, the officer had no obligation to be more specific about the nature of his concerns nor any duty to interview the applicant (Lu v. Canada (Minister of Citizenship and Immigration), [2002] FCT 440). The officer discharged his duty to treat Ms. Sun fairly.
B. Did the visa officer fetter his discretion by requiring proof of banking history over an 18- month period?
[8] Ms. Sun was asked to supply 18 months of banking records on two occasions - in her original application and then by the visa officer in his letter of November 12, 2001.
[9] There is no statutory or regulatory basis for the requirement of 18 months of banking records. Paragraph 15(1)(b) of the Immigration Regulations requires applicants for student authorizations to supply "sufficient documentation to enable an immigration officer to satisfy himself that the applicant has sufficient financial resources available to him, without engaging in employment in Canada." No particular form of document or period of financial history is specifically required.
[10] If the visa officer had turned down Ms. Sun's visa application solely on the grounds that she had not supplied 18 months of banking history, I would be prepared to conclude that the officer had made an error of law. However, the officer's request was directly related to the question of the regulatory requirement of proof of sufficiency of funds. There was no error committed in making that request.
C. What is the standard of review applicable to the visa officer's decision?
[11] The scope of judicial review of a visa officer's decision on a student visa application clearly is limited (Lu v. Canada (Minister of Citizenship and Immigration), [2002] FCT 440) but it is less clear how limited it is. There is some authority indicating that the threshold for judicial intervention is patent unreasonableness on the part of the officer (Chen v. Canada (Minister of Citizenship and Immigration), [2001] FCT 330), while other cases stipulate a standard of simple unreasonableness (Yuan v. Canada (Minister of Citizenship and Immigration), [2001] FCT 1356). While it would obviously be desirable to resolve this matter, it is unnecessary for me to do so in this case because the case does not turn on it. On either of the standards, the officer's decision cannot stand.
D. Did the visa officer make a reviewable error in concluding that there was insufficient evidence of adequate funding?
[12] Ms. Sun produced reliable records showing that her aunt had a steady job, a condominium in Oakville and bank deposits exceeding $70,000. The aunt was prepared to provide Ms. Sun with accommodation and take full responsibility for the costs of her education. In addition, Ms. Sun had the financial support of her parents, who had over $30,000 in a bank account.
[13] Ms. Sun's application indicated that she was only seeking admission to Canada for one year. True, her hope was to stay longer if she were lucky enough to gain admittance to a Canadian university, but that would require a new visa.
[14] The manual used by visa officers in the processing of student authorizations, while not legally binding, seems to take a reasonable approach (Chapter OP 10, Processing Student Authorizations). It requires a base amount of $10,000 for a year of study, plus tuition costs (para. 3.3.4). It instructs officers to consider sufficiency of funds only for the first year of study, even for a multi-year program (para. 3.3.6). It states that proof of sufficiency can take numerous forms such as:
a) letter from a Canadian financial institution stating that funds necessary for the first year of the course of study are on deposit with the institution in the applicant's name;
b) a bank draft in convertible currency for an amount equal to the funds required for the upcoming academic year, and made payable jointly to the educational institution and the applicant;
c) written assurance from a bank that applicants have sufficient funds, and, where applicable, from the foreign exchange control authorities that they will be permitted to export a sum adequate for their maintenance in Canada;
d) written statements from support persons in Canada stating that they have the means and agree to support the student;
e) evidence of acceptance in a Canadian government funded program such as CIDA or DFAIT (para. 3.3.9).
[15] The manual also states that if officers have concerns about the availability of funds beyond the first year of study, they should not deny the application but should limit the visa to a period of one year (para. 3.3.11).
[16] Again, none of this is legally binding on the Minister or on visa officers. However, it provides a useful context in which to assess whether the visa officer in this case made demands that were unduly onerous, to the point of reviewable error.
[17] In Ms. Sun's case, it is clear that the visa officer was assessing her application as if it were for a lengthy period of study. His notes say that he was not satisfied of the sufficiency of funds "considering length of planned studies" and his affidavit is to like effect. Strictly speaking, however, Ms. Sun was merely seeking entry for one year. It is difficult to see any basis for concern about sufficiency of funds over that time frame.
[18] Counsel for the Minister pointed me to a number of cases in which this Court had not disturbed negative decisions from visa officers based on insufficiency of funds. However, in those cases, the applicant had provided little, if any, documentary evidence of the sufficiency of funds (Ji v. Canada (Minister of Citizenship and Immigration), [2001] FCT 786; Lu v. Canada (Minister of Citizenship and Immigration), [2002] FCT 440; Yu v. Canada (Minister of Citizenship and Immigration), [2001] FCT 1289). Here the documentation was considerable.
[19] In my view, the visa officer's concern about the sufficiency of funds for Ms. Sun's program of studies (i.e. for 1 year) was unwarranted on the evidence before him and, therefore, his decision to deny a student authorization to her constituted reviewable error. Accordingly, this application for judicial review is allowed, and Ms. Sun's application is to be reconsidered by a different visa officer. No question was proposed for certification and none is stated.
JUDGMENT
IT IS HEREBY ADJUDGED THAT the application for judicial review is allowed and Ms. Sun's application shall be reconsidered by a different visa officer. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-57-02
STYLE OF CAUSE: SUN YUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, APRIL 7, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
AND JUDGMENT BY: O'REILLY J.
DATED: THURSDAY, APRIL 10, 2003
APPEARANCES BY: Ms. Nancy Myles Elliot
For the Applicant
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD: Nancy Myles Elliot
Barrister & Solicitor
Markham, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030410
Docket: IMM-57-02
BETWEEN:
SUN YUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT