Date: 20020925
Docket: IMM-2015-01
Neutral citation: 2002 FCT 1004
Toronto, Ontario, Wednesday, the 25th day of September, 2002
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ZHAO YUE
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 in respect of a decision by visa officer Robert Foo, at the Canadian Embassy in Beijing, China, dated March 22, 2001, wherein the applicant's application for a student visa to study in Canada was refused on the basis that the applicant did not establish his status as a bona fide visitor to Canada, ie. with intent to leave Canada after her studies.
[2] The issue in this matter is whether the applicant was denied procedural fairness by not being given an opportunity to address the officer's concerns.
[3] The officer assessed the application without granting the applicant an interview in person or by telephone and stated in his CAIPS notes:
[...- BELIEVE HE WISHES TO BETTER HIS ECONOLIFE [sic] IN CDA BY USING A STUDENT AUTHORIZATION AND IF HE GOES THERE HE WILL NOTE [sic] RETURN. AS HIS PROSPECTS IN CDA WILL BE BETTER - ON A STANDARD OF LIVING BASIS.
THE POTENTIAL BENEFIT TO THE APPLICANT'S ACADEMIC STUDY/CAREER IN THE PRC DOES NOT JUSTIFY THE HIGH COST OF THE PROPOSED PLAN OF STUDY IN CANADA. CONSIDERING THE APPLICANT [sic] FINANCIAL STATUS, SUCH A TIMELY AND COSTLY INVESTMENT MAKES SENSE ONLY IF THE APPLICANT'S INTENTIONS TO STUDY IN CANADA ARE MOTIVATED BY A DESIRE TO SEEK OPPORTUNITIES IN CANADA RATHER THAN TO ENHANCE CAREER PROSPECTS IN THE PRC.
AS SUCH I AM NOT SATISFIED THAT THE APPLICANT IS NOT AN IMMIGRANT AND THAT THIS PERSON DOES NOT MEET SECTION A 9 (1.2) AND IS REFUSED.
[4] The visa officer relied upon a factor which may or may not be applicable to the applicant: namely that the applicant was not a bona fide visitor because he was from Shenzen and wished to work with computers. The visa officer wrote in his affidavit that this city "was the fastest growing and had the most competitive economy...but that is no longer the case.". The officer relied upon his own analysis of the prospects for promotion of public servants such as the applicant in Shenzen, and visa section research indicating that "the majority of students that study outside China do not return.".
[5] While the duty of fairness does not necessarily require an oral hearing, there is a requirement that the visa officer provide the applicant with an opportunity to address a major concern, in other words, respond.
[6] Officer Foo, in his affidavit, makes reference to his own knowledge and experience on which he draws in coming to a decision on the student visa application. While visa officers are legally entitled to apply their own experience toward a decision (Yu (Litigation Guardian of) v. Canada (Minister of Employment and Immigration) (1993), 21 Imm.L.R. (2d)1, [1993] FCJ No.786 (F.C.T.D.) per McKeown J.,) an officer cannot stereotype an applicant based on that experience. As Lutfy J. (as he then was) held in Mittal v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 285, [1998] F.C.J. No. 727 (F.C.T.D.), at paragraph 12:
Secondly, even if the visa officer had access to such information and she was correct with respect to India's private school system, she should have provided the applicants' family with an opportunity to address her concerns which are based on information not proffered by the applicants. Such a course of action is suggested in the Guideline [Immigration Guidelines] in section 2.7.4 dealing with the bona-fides of minor students:
If officers wish to take into account outside information, particularly where that information leads to concerns/doubts about the applicant's bona-fides, they must be able to show that the applicant was made aware of the information taken into account and/or the concerns and was given an opportunity to address those concerns.
[7] This characterizes the officer's duty of fairness in the assessment of student authorizations. The same duty of fairness has been applied in visa immigration cases in Muliadi v. Canada (Min of Employment & Immigration) (1986), 66 N.R. 8, [1986] 2 F.C. 205 (F.C.T.D.), Fong v. Canada (Minister of Citizenship and Immigration) (1997), 26 F.T.R. 235, [1997] F.C.J. No. 190 (F.C.T.D.), and Basco v. Canada (Min of Employment & Immigration) (1991), 43 F.T.R. 233, [1991] F.C.J. No. 406. As I stated in Yuan v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1852 (F.C.T.D.) at paragraph 14:
To refuse this applicant, based on a generalization about a particular location in China and a particular type of employment, is unfair without providing the applicant with an opportunity to respond to this concern.
¶ ¶ 15 In Baker v. M.C.I. (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, the Supreme Court of Canada reiterated the variable nature of the concept of procedural fairness. In considering whether the person whose interests were affected had a meaningful opportunity to present their case fully and fairly did not depend upon whether an oral hearing was provided. Accordingly, it is not necessary for the visa officer in Beijing to grant each applicant for a student visa a personal interview. Counsel for the applicant in the case at bar suggested that the visa officer could provide the applicant with a fair opportunity to deal with the concern by a telephone call or a letter. The applicant must be given an opportunity to address the concern of the visa officer, which may be legitimate, that many applicants for visitor visas from a particular region of China are using this vehicle for the illegitimate purpose of gaining entry into Canada on false pretences, when in fact their purpose is to apply for refugee status. The applicant must be given a fair opportunity to deal with this concern before the visa officer applies their general experience to this specific applicant.
¶ ¶ 16 The onus still rests on the applicant to satisfy the visa officer that the applicant is a bona fides visitor who intends to return to China.
According the applicant was denied procedural fairness.
ORDER
This application for judicial review is allowed and this matter is referred back to the
respondent for redetermination by a different visa officer. Neither counsel recommended certification of a question for appeal, and no question is certified.
"Michael A. Kelen"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2015-01
STYLE OF CAUSE: ZHAO YUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, SEPTEMBER 25, 2002
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: WEDNESDAY, SEPTEMBER 25, 2002
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Mr. Michael Butterfield
For the Respondent
SOLICITORS OF RECORD: M. Max Chaudhary
Chaudhary Law Office
Barrister & Solicitor
18 Wynford Drive
Suite 707
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020925
Docket: IMM-2015-01
BETWEEN:
ZHAO YUE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER