Date: 20010125
Docket: IMM-2274-00
BETWEEN:
HUA YE
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 of the Canadian Embassy - Visa Section, in Beijing, (the "visa officer"), dated March 14, 2000, and refusing the Applicant's application for a student authorization in Canada on the grounds that she was not satisfied that the Applicant, upon completing her studies in Canada, would return to her country of origin.
[2] The Applicant is a citizen of the People's Republic of China. On October 1, 1999, she filed an application for a student authorization in Canada with the Canadian Embassy - Visa Section, in Beijing, China.
[3] The Applicant is 35 years old and works as a marketing researcher for the Zeijian Native Produce & Animal By-products Imp. & Exp. Corp., and has been working there since 1988. She completed a Bachelor's Degree in Arts in 1998 with a major in English. She also has a two-year diploma in International Trade at the Hangzhou Institute of Commerce. She lives with her husband and her eight-year-old daughter in Hangzhou. Her annual income, at the time of the application, was about 31,000 Renminbi (about $5,000 Cdn.).
[4] Included in the application package was a letter from a British Columbia College stating that the Applicant was accepted into its MBA program.
[5] The Applicant was informed by letter that her application had been refused on March 14, 2000. The visa officer found that the Applicant had not established that she intended to return to China upon completing her proposed studies.
[6] Whether the visa officer erred in refusing to issue a student authorization to the Applicant - Whether the visa officer breached her duty of fairness by failing to inform the Applicant as to her concerns with respect to the Applicant's long term intentions, and by failing to offer the Applicant an opportunity to respond to those concerns.
[7] The Applicant submits that the visa officer, in reaching her decision, could not take into account any intention of the Applicant to legally immigrate to Canada. Only an intention to remain in Canada illegally, after the expiration of a temporary visa, may be considered to refuse such an application. The Applicant further submits that the visa officer could not reasonably conclude that she would seek to remain in Canada illegally in light of the facts that were presented to her by her application, namely that she is already highly educated, having a Bachelor's degree in English, and is currently a professional in a large corporation. Furthermore, the Applicant has a husband and a young daughter in China.
[8] The Applicant submits that the visa officer erroneously considered as relevant the wealth or lack thereof of her family. The visa officer did not indicate how she found that the Applicant did not have a good income. A large income is not a required by the Act. The Applicant also contends that the visa officer found that she intended to spend half of her family's savings on her proposed education in Canada, and that an investment of such magnitude was not justified by the Applicant's proposed plan of study. According to the Applicant, this finding is irrelevant, as the Act does not require that applicants be so wealthy as to be able to afford extended periods of study in Canada with little impact on their total savings. The Applicant had adequate funds to pay for all her expenses in Canada. The Applicant also contends that the fact that she had only very minimal training in a business related field, and had been employed in a business related occupation for a number of years, would support her allegation that she wishes to advance her current career by pursuing an MBA. The Applicant alleges that it was possible for the visa officer to determine, based on the information provided with the application, that the Applicant had experienced an increase in the level of her professional responsibility.
[9] The Applicant submits that the visa officer had a duty to inform her of any concerns that she may have had with respect to her application, and to provide her with an opportunity to disabuse her of such concerns.
[10] The Respondent submits that the Applicant, in her affidavit, is trying to submit supplementary evidence that was not before the visa officer at the time the decision was rendered. Specifically, paragraphs 7, 8, 11, 12 and 13, with the exception of the fact that the Applicant is married and has a child, were unknown to the visa officer.
[11] The Respondent believes that the standard of review for a visa officer's decision not to issue a student authorization is patent unreasonableness.
[12] The Respondent submits that the visa officer was entitled to consider a variety of factors, including her level of education and her pattern of employment, in addition to the Applicant's other circumstances, when assessing her long term goals and visitor visa application. This is allegedly what the visa officer did and concluded that the Applicant was not a genuine visitor to Canada. The Applicant's application was rightly refused.
[13] According to the Respondent, there is no ground to argue that the decision process is unfair merely because the visa officer did not communicate all her concerns to the Applicant or give the Applicant an opportunity to respond to the visa officer's concerns that arose directly from the Act and Regulations that she is bound to follow in her assessment fo the Applicant's visa application. The officer is not required to put before an applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her unless the officer is relying on extrinsic evidence. This was not the case here. Whether to permit oral, as opposed to written, representations, is a matter within the discretion of the decision maker. The Applicant had a meaningful opportunity to present the various types of evidence relevant to her case and it was fully and fairly considered.
Analysis
[14] An applicant, who is not a Canadian citizen or a permanent resident and who wishes to attend a university or college in Canada, requires a valid and subsisting student authorization. Subsection 9(1) of the Act requires that every immigrant and visitor (except in prescribed cases) must apply for and obtain a visa before that person appears at a port of entry. Subsection 9(1.2) of the Act places the burden on the Applicant to satisfy the visa officer that the Applicant is not an immigrant. The onus is on the Applicant to establish the bona fides of her application for temporary entry into Canada as a student. Section 15(1)(b) of the Regulations states that every applicant for a student authorization should satisfy the visa officer that he or she has sufficient financial resources available to him or her.
[15] The issuance of a student authorization pursuant to subsection 9(4) of the Act is a discretionary decision. According to this Court in De La Cruz v. Canada (Minister of Employment an Immigration) (1989), 26 F.T.R. 285 (F.C.T.D.), at page 287 : "[t]he duty of the visa officer is to accord proper consideration to any application, but he is not required to issue a visitor's visa unless he is convinced the applicant fulfills the legislative requirements". With respect to the scope of review of a visa officer's decision to refuse to issue a student authorization, the Court held that:
| "To succeed, the applicants must do more than establish the possibility that [the court] may have reached a different conclusion than the visa officer. There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative decision." (De La Cruz v. Canada (Minister of Employment an Immigration), supra, at 287; Zhao v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1124 (F.C.T.D.) (July 9, 1999)) |
[16] The Court has also held that the appropriate standard of review for discretionary decisions by visa officers, with respect to immigration applications, is the same as that enunciated by the Supreme Court of Canada in Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, where Mr. Justice McIntyre stated:
| "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, where 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". (See: Chiu Chee To v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 696, 69 (A-172-93, May 23, 1996) (F.C.A.); Liu v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 219 (IMM-3479-98) (F.C.T.D.)) |
[17] It is well-established that it is not open for an Applicant to rely on evidence that was not before the visa officer in support of an application for judicial review (Asafov v. M.E.I., (May 18, 1994) IMM-7425-93 (F.C.T.D.); Lemiecha v. Canada (M.E.I.) (1993), 24 Imm. L.R. (2d) 95 (F.C.T.D.)). The visa officer only became aware of the information in paragraphs 7, 8, 11, 12 and 13 of the Applicant's affidavit after she had read it, with the exception of the fact that the Applicant was married and had a child. As such, the new facts contained in those paragraphs cannot be taken into account by this Court sitting in judicial review.
[18] In Wong (Litigation guardian) v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377 (F.C.A.), the Federal Court of Appeal had to deal with the issue of whether or not a visa officer is entitled, at the time of an application for a student visa, to search for the long term goal of the applicant and to take into consideration that goal in assessing whether the application is a genuine visitor within the meaning of subsection 2(1) of the Act. The Court found:
| "[w]e firmly believe the visa officer is entitled, even at the moment of the first application for such visa, to examine the totality of the circumstances, including the long term goal of the applicant. Such goal is a relevant consideration, but not necessarily determinative, to be weighed with all the other facts and factors in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act." |
[19] As examples of "other facts and factors", the Court gave the following: ties to the country of origin, whether there are credible reasons for wishing to study in Canada, the age of the applicant, whether prior acceptance had been obtained from an educational institution in Canada and the likelihood of return to the country of origin.
[20] In the present case, the visa officer, in her affidavit, recalls having made various findings of fact. At the time the application was submitted, the Applicant was 34 years old, was married and had one child. She had completed a Bachelor's Degree in Arts in 1998 with a major in English. Although she had failed to mention it on her educational detail forms, the Applicant had a two-year diploma in International Trade from the Hangzhou Institute of Commerce. The Applicant was accepted by the Vancouver College for an MBA program for an initial period of two years. She did not indicate in her study plan that she would return to work for her current employer and only mentioned that she would continue her career in international trading.
[21] The visa officer also determined that the Applicant had not submitted sufficient evidence to show that she and her family had a good income or that she came from a wealthy family with many assets. The Applicant was employed as a Sales Manager at Zhejiang Native Products and Animal By-Products Import and Export Corporation since August 1988. Her annual income in 1998 was about 31,000 Renminbi (about $5,000.00 Cdn.). Her husband was also a Sales Manager for a state-owned enterprise. According to the number of years planned for study in Canada, the Applicant would be spending more than half of the family's savings for her studies in Canada.
[22] The Applicant contends that the visa officer erroneously considered whether or not she would be likely to seek to immigrate to Canada upon completing her studies. She relies on Section 4.6.1 of the Citizenship and Immigration Canada Immigration Manual, Overseas Processing, which reads as follows:
| "Applicants have the burden of proving to your satisfaction that they are bona fide visitors. However, in the case of foreign students, the general question of bona fides is not so much whether the applicant is a prospective immigrant, but whether the applicant is a prospective illegal immigrant." |
[23] As has been determined by this Court, however:
| "Guidelines serve as `general policy' or `rough rules of thumb' to structure the discretion conferred upon the visa officer. Guidelines, however, should not fetter the visa officer's exercise of discretion by crystallizing into binding and conclusive rules" (Mittal v. Canada (M.C.I.), [1998] F.C.J. No 727 (IMM-2752-97) (F.C.T.D.)). |
[24] In my view, it is clear, from reading the visa officer's affidavit, that the visa officer considered whether or not the Applicant would be likely to return to China after her studies, which is in fact the correct legal test to be applied. I believe it was not reasonably open to the visa officer to conclude that the Applicant might not return to China upon completion of her prospected studies in Canada. I admit that it was certainly relevant for the visa officer to ask for some sort of information pertaining to the Applicant's income, the extent of her savings, or the wealth of her family, since the visa officer is bound by the Act and Regulations to make sure that any applicant has sufficient financial resources to pay for the tuition fees, to maintain himself during the study period and to pay for the transportation costs to and from Canada. It was within the visa officer's discretion to determine what constituted "sufficient financial resources". However, I question the visa officer's reliance on the Applicant's financial situation to determine that she would not return to China, since the letter of refusal sent to the Applicant does not indicate that insufficiency of funding was a reason for refusal.
[25] Furthermore, I believe that the visa officer's decision in respect of the probability of return to China was unreasonable. The Applicant obviously has a good family background. One of her brothers is a doctor, another is an engineer, her father has a Bachelor's degree in electrical engineering. While it is true that she has been working for the same company for 12 years, this should not be held against her. She started out earning 2 250 Renminbi per year and last year, she made 31 268 Renminbi. The Applicant's work has provided opportunities for her to travel to France, Italy, the Netherlands, the United Kingdom, Germany, Portugal, Sweden, Thailand and Hong Kong from 1992 to 1999. The fact that, by studying abroad, she would be spending most of her savings should not have swayed the visa officer. The Applicant has demonstrated that she is willing to make that sacrifice in order to further her career. It seems obvious that the Applicant will return to China once her studies are completed. In fact, there is no evidence whatsoever that this person would be overstaying, should she be granted a visa.
[26] In the face of evidence of obvious ties to China and considering the value, for the Applicant, of such a course of study in Canada, I believe that the visa officer's decision was wholly unreasonable and I find that this matter must be returned before a different visa officer for redetermination. The application is granted.
JUDGE
OTTAWA, Ontario
January 25, 2001