Date: 20010119
Docket: IMM-2693-00
BETWEEN:
MA YE
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
HENEGHAN J.
[1] Mr. Ma Ye (the "Applicant") seeks judicial review of the decision of Visa Officer Pamela Currie (the "Visa Officer") made March 13, 2000. By her decision, the Visa Officer denied the Applicant's request for a student visa authorizing his entrance into Canada to study English and to pursue an OAC program at Columbia International College of Canada for a period of one year.
[2] The Applicant, who is a citizen of China, applied for his student authorization on October 26, 1999. He provided photocopies of some financial information relating to his family income but did not provide statements for his parents' employers or certificates of bank deposits. On March 13, 2000, his application was considered and denied by the Visa Officer on the grounds that she was not satisfied that he was not an immigrant nor that he had adequate financial resources for his intended course of study. The refusal letter to the Applicant was couched in the following terms:
...the reasons for your refusal are indicated below:
Canadian legislation states that every person who seeks to come into Canada shall be presumed to be an immigrant until that person is able to satisfy a Visa Officer he/she is not. You have not been able to overcome this legal presumption in that you have not satisfied a Visa Officer that upon completing the claimed duration of your proposed studies, it is your intention to return to the People's Republic of China.
You have not satisfied us that you or your sponsor has adequate funds to pay for your expenses while in Canada.(1)
[3] The issues raised on this application are whether the Visa Officer breached a duty of fairness to the Applicant or committed an error of law by considering irrelevant matters.
Applicant's Submissions
[4] The Applicant argues that the Visa Officer acted unfairly by failing to advise him that his application for a student authorization lacked necessary documentation. The Applicant says that if the Visa Officer had concerns about the financial resources available to support him, she should have given him the opportunity to respond to those concerns.
[5] In that regard, the Applicant relies on section 4.5 of the manual issued by Citizenship and Immigration Canada relating to the processing of student authorization. Section 4.5 provides as follows:
4.5 If the documents are incomplete, and/or the processing fee is incorrect, processing of the application cannot be initiated until the deficiencies have been corrected.
Officers are to use their judgment in determining the most efficient method of addressing the difficulties. In some cases, a telephone call may best serve the purpose, in others, it may be necessary to return the application and documents to the client with a written request for the missing information.
In some circumstances, depending on the processing office, it may be necessary to have the client come to the office for an interview or to complete the documentation.
[6] The Applicant says that the Visa Officer acted unfairly when she processed his application without having given him the prior opportunity to respond to her concerns about the perceived efficiencies in the financial information provided.
[7] Second, the Applicant claims that the Visa Officer erred in law when she concluded that the credibility of his financial information was diminished because his application was included in a group of other student applications. The Applicant bases this argument upon the following statement at paragraph 16 of the affidavit filed by the Visa Officer:
16. An additional concern was the fact that this applicant was included in a group of student applicants, all with similar financial and educational documents and study plans, which further detracted from the credibility of the supporting documents.
Respondent's Submissions
[8] In reply, the Respondent denies that the Visa Officer committed any breach in her duty of fairness towards the Applicant by failing to give him an opportunity to address the shortcomings in the financial information submitted. The Respondent also denies that there was any error of law committed by the Visa Officer when she considered the fact that this application for a student visa was included in a group of similar applications.
[9] Concerning the first issue, the Respondent says that the Applicant was aware of the need to provide full financial details, with supporting documentation. The Respondent argues that the manual relied on by the Applicant is merely a guideline to inform the Visa Officer in the exercise of her discretion and that the manual does not provide specific directions to the Visa Officer that would require her to provide the Applicant with an opportunity to bolster the financial information submitted.
[10] Next, the Respondent submits that reference to a group of similar applications was a relevant factor to be considered by the Visa Officer since this factor relates to the "totality of the circumstances".
ANALYSIS
[11] The Applicant seeks admission into Canada as a visitor and as such, he is subject to the provisions of the Immigration Act, R.S.C. 1985, c. I-2, section 9(1.2) as follows:
Burden on visitors
9(1.2) A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant.
Charge de la preuve
(1.2) La personne qui demande un visa de visiteur doit convaincre l'agent des visas qu'elle n'est pas un immigrant.
[12] Section 15 of the Immigration Regulations, 1978 is also relevant and provides:
15(1) Every application for a student authorization shall be accompanied by
(b) 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,
15(1) Toute demande présentée afin d'obtenir une autorisation d'étude doit être accompagnée
b) des documents voulus pour convaincre l'agent d'immigration que le requérant possède, sans qu'il lui soit nécessaire d'exercer un emploi au Canada, des ressources financières suffisantes
[13] The Applicant first takes issue with the failure of the Visa Officer to tell him that the financial information he had submitted was incomplete and urges the view that the manual, quoted above, imposes a duty on the Visa Officer to give him the opportunity to supplement the information submitted.
[14] This argument cannot succeed. Several decisions of this court have made it clear that the immigration manual is primarily a guideline for the assistance of Visa Officers in assessing application for student visas; see: Jebnoun v. Minister of Employment and Immigration (1993), 68 F.T.R. 14; Pinto v. Minister of Employment and Immigration (1990), 39 F.T.R. 273 and Mittal (Litigation Guardian of) v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 285. Indeed, in Mittal, Justice Lutfy (as he then was) said at paragraph 2:
...Guidelines, of course, must be used with care. They can 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 crystalizing into binding and conclusive rules.(2)
[15] That case involved the application for student visas on behalf of two minor children from India. In that case, the relevant section of the manual specifically provided that where a Visa Officer had concerns or doubts about the bona fides of an Applicant, then the Applicant must be given the opportunity to respond to those concerns.
[16] Justice Lutfy found that the specific wording of the manual in Mittal, supra, required the Visa Officer to exercise the same duty of fairness which applies in the case of an application for permanent residence.(3) There is no such specific provision in the part of the manual in issue here.
[17] It is clear from the application for the student authorization that the Applicant was aware of the necessity of providing detailed information about the financial resources available to support him during his proposed year of study in Canada. In the circumstances, the burden lay upon the Applicant to produce the necessary documentation in support of his application. While the Visa Officer could have requested further information or clarification, and that view is supported by the passage in the manual referred to above, she was under no duty to do so.
[18] I turn now to the second issue raised by the Applicant, that is reliance by the Visa Officer on irrelevant considerations.
[19] I do not accept the arguments of the Respondent that the Visa Officer was entitled to look at similar applications for student visas in order to assess the viability of the Applicant's application. The Respondent argues that the Visa Officer is entitled to look at the "totality of the circumstances" and this includes consideration of similar applications.
[20] The reference to consideration of the "totality of the circumstances" found in Wong (Litigation Guardian) v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377 (F.C.A.) must, in my opinion, refer to the circumstances of an individual applicant and not to a general group of applicants about whom nothing else is known. To allow the Visa Officer to consider the circumstances of an anonymous group of people in assessing an individual application may affect the conclusions as to the sufficiency of the financial information submitted by the Applicant. I find that she considered irrelevant matters in reaching her decision. This is an error of law, and the decision cannot stand.
[21] In conclusion, the application for judicial review is allowed and the matter is remitted to a different Visa Officer for consideration.
[22] Counsel did not submit a question for certification.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
January19, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2693-00
STYLE OF CAUSE: MA YE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, JANUARY 10, 2001
PLACE OF HEARING: OTTAWA, ONTARIO
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: FRIDAY, JANUARY 19, 2001
APPEARANCES BY: Mr. Cary Chiu
For the Applicant
Ms. Patricia Johnson
For the Respondent
SOLICITORS OF RECORD: Cary Chiu
Barrister & Solicitor
100-1145 Huntsclub Rd.
Ottawa, Ontario
K1V 0Y3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010119
Docket: IMM-2693-00
Between:
MA YE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
1. 1Applicant's Memorandum of Fact and Law, Applicant's Record, Tab 4, page 4, paragraph 9 .
3. 2Mittal, supra, paragraph 12