Date: 20000302
Docket: IMM-6829-98
BETWEEN:
RUN AI HU (YEN OIL CHOW)
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX, J.
Background
[1] All of the members of the Chow family are permanent residents of Canada except Lap Kang Chow. This judicial review application brought, by way of self representation, by his mother Yen Oil Chow concerns the refusal dated September 15, 1998 by the Immigration Consul at the Canadian Consulate General in Hong Kong (CCG) refusing her son a visa as a permanent resident.
[2] The relevant part of the Consul"s letter to the applicant"s daughter reads:
| As you are aware, Mr Chow was determined not to qualify as the dependant son of your parents .... Consequently .... an immigration visa could not be issued to your brother. |
[3] "Dependant son" is defined in section 2 of the Immigration Regulations (the Regulations) and is part of the provisions of those Regulations dealing with sponsorship amongst family class members. The definition reads:
| "dependant son" means a son who |
| (a) is less than 19 years of age and unmarried; |
| (b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institute and |
| (1) has been continuously enrolled and in attendance in such a program since attaining 19 years of age ... |
[4] The efforts of the Chow family to obtain permanent residence in Canada began in 1992 after the applicant"s daughter Sau Fa Chow sponsored her immediate family including her parents, her brother Lap Kang Chow, and her sister, Xiu Wei.
[5] The record indicates the applicant"s grandfather came to Canada a hundred years ago and the applicant"s extended family (brother, sisters, relatives) have a strong presence in this Country, many of whom are now Canadian citizens.
[6] Sau Fa Chow"s sponsorship of her family, filed in December of 1992, encountered difficulties in terms of eligibility and the fact her father had a medical condition which only cleared up after some time.
[7] It was only in December 1996 that an interview was conducted through an interpreter in Hong Kong by the CCG. The applicant, her husband, her daughter Xiu Wei and her son Lap Kang Chow were present.
[8] I note that Lap Kang Chow was born on January 11th, 1973 and the documentation he provided to the CCS appears to show:
| (a) he finished primary school in 1988 at the age of 15 |
| (b) he attended junior middle school from Sept. 1, 1988 to June 1991 |
| (c) he attended senior middle school from September 1991 to June 1994 when he graduated; and |
| (d) from September 1994 to 1997 was studying accounting at the Broadcast and Television University of Kaiping City, Guangdong Province in China. |
The Visa Officer"s CAIPS Notes
[9] The visa officer who interviewed the Chow family in Hong Kong on December 3rd, 1996 did not swear an affidavit in these judicial review proceedings. His CAIPS notes are however part of the tribunal"s certified record. The visa officer first interviewed the applicant and her husband who were later joined by Lap Kang Chow and his sister.
[10] I set out in full the visa officer"s CAIPS notes:
| On her permanent residence application and attached family compo form completed on 06Apr91 and received on 19Apr91 sponsor gave her two sibling"s occupation as "unemployed". As indicated above, sister Xiu Wei (DOB 15 / 04 / 75) was 17 then. Brother Liqiang (DOB 11 / 01 / 73) was 20 y. o. |
| PI and spouse stated that daughter Xiu Wei has been staying at home since leaving school in 1990. As for son Liqiang, they stated that he was never employed and has been attending school full time until now. While unsure of the dates (spouse, who did most of the talking, stated several times that they were only farmers and had poor memory), spouse stated that after completion of primary school in 1988 (at age 15) son attended without interruption junior middle school, senior middle school and Kaiping TV University. |
| According to docs submitted, son/Liqiang attended junior middle school from Sep88 to June91, senior m.s. from Sep91 to June 94 and Kiaping T.V. University since Sept94. |
| Asked why son had started elementary school at age 9, spouse stated that this was a normal thing in China. |
| (Later on during interview, when two children were present, noted that daughter XiuHui had started primary school in 1981 at 6, while son Liquiang, two years her senior and 8 at the time, supposedly was still supposedly staying at home). |
| Asked about family compo declaration of sponsor that her two siblings were unemployed in Apr91, PI and spouse stated that they did not understand, that perhaps she had made a mistake. However they confirmed that the five of them (sponsor was landed in Dec91) were living together at that time. |
| Two children were called in office. Daughter/XiuHui confirmed that she had left school after completing junior middle school in June90; she explained that she did not continue because of her poor academic results. She stated she has not had gainful employment, only helped with household chores. Also stated that she was trained as a seamstress by a neighbour has a sewing machine. Asked whether she had attended junior middle school with Liquiang, she stated yes but at a different level. She stated that Liquiang had graduated on year earlier in 1989. |
| Latter appeared somewhat confused about the dates of his schooling: at one point agreeing that he graduated from junior middle school in 1989, then stating that he graduated in 1991, then hesitating when sister adamantly stated that he had finished one year before her. Asked how come he would have been behind his younger sister in schooling (knowing emphasis being placed on son"s - and an only son at that -- in Chinese society) mother intervened and stated that it was because he had to retake a year. |
| However son denied that he ever had to do so. |
| Son/Liqiang further stated that he attended senior middle school from Sep91 to Jul94. Documents submitted with his application is a replacement doc issued in lieu of "lost" original. Asked how come he had "lost" the original, Liqiang stated that it had been stolen by a pickpocket. Having expressed my extreme credulity, Liqiang stated that it was true. Mother then interjected that their household registration had also "disappeared" but had later been found. Asked about the various subjects he had taken at senior middle school, Liqiang was unable to explain in any significant detail. |
| Asked about his enrollment (accounting) at Guangdong Radio and TV University, Liqiang stated that he had been attending (i.e. following classes on T.V. and completing written assignments) "full-time" since Sep94. Asked what full-time meant, he took a long time and stated 5 hours a day. Asked how many subjects he had been taking per semester, he was unable to say. (Doc submitted with the application indicates 3 subjects in fall of 94; 4 in winter/spring of 1995; four in fall of 1995; and 4 in winter/spring of 1996. Another doc indicates that he is currently enrolled in his third and final year of his three year course. Asked to write down all the course he had been taking so far, PI was only able to write down one accurately. He otherwise listed four that had only some remote connection with the subjects as reported on his academic record and two that are not listed on the said record. He was unable to list the other eight subjects reported on his record. |
| While PI, spouse and son insisted and argued that they were telling the truth and that he had been a full-time student since 1982, this is not credible. Given sponsor"s indication that her brother was unemployed in early 1991, given younger sister"s clear statement that he finished junior middle school one year ahead of her (attending the same school and travelling together), given his own weak memory as to whether he had graduated in 1989 or 1989, given improbability the he"the only son of a traditional family, healthy both physically and mentally -- would have started school one year after his younger sister, given unreliability of school records submitted (especially senior middle school report card completed by "same hand" while supposedly filled by five different teachers over six semesters and three years), given inability to talk reasonably about senior middle school as well as TV university curricula, it is quite obvious that PI has not been a full-time (if at all) student since reaching the age of 19. Based on school pattern from his two siblings, son finished middle school most probably (and very reasonably) in 1989. All school documents submitted in support of his application are false. Even if given the benefit of the doubt regarding his attending or watching or following some of the accounting courses taught on TV university since Sep94, this is at best a part-time proposition. |
| Son is not a member of the family class. Asked whether they would like to proceed to Canada without their son, PI and spouse stated that they did not want to have the family separated but still wanted to go. |
| (emphasis mine) |
[11] The visa officer"s CAIPS notes indicate Lap Kang Chow"s name was deleted from the sponsorship application on December 4th , 1996 and permanent resident"s visas were issued to the applicant, her husband and her daughter who came to Canada.
[12] The certified tribunal record does not disclose whether a formal refusal letter or confirmation of deletion was ever sent to the applicant concerning her son but it was obvious he had been turned down when they and not he were issued visas.
Subsequent Developments
[13] The certified tribunal record reveals that CCG received a fax from Anna Terrana M.P. for Vancouver East concerning the Chow family. The First Secretary at CCG responded to the Member of Parliament on December 11th, 1996. He confirmed that Lap Kang Chow was "unable to demonstrate his continuous status as a student to this day and the documents submitted to substantiate his claim to that effect were found to be false. Our conclusion is directly corroborated by information provided by your constituent on her own application in April 1990 regarding her brother"s status".
[14] The applicant"s application record evidences a proceeding taken by Sau Fa Chow, as sponsor, to the Immigration Appeal Division in respect of the decision not to grant an immigration visa to her brother. The Immigration Appeal Board held it did not have jurisdiction to hear the appeal because there had been no refusal of an application for landing by a member of her family class.
[15] On judicial review, the matter came before Madame Justice Reed who dismissed the appeal (IMM-5200-97, July 29, 1998). She pointed out however "that it was not clear whether a final decision has been made or, if it has, when such a decision was communicated in a formal service to the father or the son". Hence, the September 15, 1998 letter from the Immigration Consul at CCG and these proceedings before me.
What the Applicant Seeks
[16] The applicant seeks from this Court an order directing that an immigration visa be issued to her son. In her affidavit in support, she swears her son is studying at the Broadcast and Television University, and he is being financially supported by his parents. Her son is the last remaining member of the family in China.
[17] The applicant"s husband also filed an affidavit, corroborating his wife"s information and adding he never consented to cancel his son"s name out of the application for permanent residence.
[18] La Kang Chow"s uncle also filed a corroborating affidavit.
Analysis
[19] As noted, the Chow family appeared before me without the benefit of legal counsel and with the aid of an interpreter. Given the limits of what a Court can do on judicial review, their expectations were inflated. I indicated to them that in this kind of case reviewing the lawfulness of a decision made the Court did not have any power to order the grant of a visa.
[20] Unfortunately, in this case, it is not possible for me to quash the visa officer"s decision. The basis of his refusal was that he determined the documents submitted in support of Lap Kang Chow"s dependant son status were false or, in the alternative, if they were not, his attendance at Broadcast and T.V. University was not full time as required by the Regulations.
[21] The Supreme Court of Canada in CUPE v. City of Montreal (1997) S.C.R. 793 at 844 through the reasons of Madame Justice L"Heureux-Dubé reiterated the parameters of a Court"s intervention on findings of fact. This Court is not entitled to revisit or weigh the evidence and it is only where the evidence viewed reasonably is incapable of supporting the tribunal"s findings will a fact finding be patently unreasonable.
[22] In this case, the visa officer, based on what he saw and heard at the interview of December 3rd, 1996 made a finding of credibility through the combined elements of implausibility contradictions and inconsistencies.
[23] I cannot intervene in these circumstances because it was reasonably open for the visa officer to reach the conclusion he did.
[24] I have no jurisdiction to order that a visa be issued on humanitarian and compassionate grounds even if the required basis was present. That is a matter for other authorities.
[25] For all of these reasons, this judicial review application is dismissed.
(Sgd.) "F. Lemieux"
Judge
March 2, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
IMMIGRATION DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-6829-98
STYLE OF CAUSE: Run Ai Hu (Yen Oil Chow)
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 22, 2000
| REASONS FOR ORDER OF Lemieux, J |
DATED: March 2, 2000
APPEARANCES:
| Run Ai Hu For the Applicant |
| Garth Smith For the Respondent |
SOLICITORS OF RECORD:
Ms. Run Ai Hu
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |